Bratt v. Marum.

• Citation: 24 W.Va. 652
• Court: Supreme Court of West Virginia
• Decision Date: 27 September 1884
• Parties: Bratt v. Marum.

24 W.Va. 652

Bratt

v.Marum.

Supreme Court of Appeals of West Virginia.

Submitted September 9, 1884

Decided September 27, 1884.

1. An appeal from the judgment of a justice, which under the law is tried de? > ovo in the appellate court, is a continuation of the same action, (p. 655.)

2. A declaration upon a detinue-bond executed under section 1 of chapter 102 of the Code, which does not allege, that the plaintiff in the action of detinue had possession of the property after the bond was executed, is fatally defective, (p. 656)

The facts of the case are stated in the opinion of the Court. M. H. Dent for plaintiff in error.

Barton Payne for defendant in error.

Johnson, President;

John F. Bratt brought an action of debt on a bond with collateral condition in the county court of Preston county against D. P. Marum, W. M. Dent and H. M. Grimes. The declaration alleges, that on June 12, 1878, the defendants made their certain writing obligatory sealed with their seals, l&c, describing it, which had a condition thereunder written to the following effect:" The condition of the above obligation is such that whereas the said David P. Marum has instituted an action before Eugene McGinnis, a justice of the peace of Preston county, State aforesaid, to recover the possession of one gray horse of the value of one hundred dollars from the said Bratt, who holds the same as deputy-sheriff ot said county by virtue of tax-receipts against Calhoun and Evans; and whereas the said Marum desires to have immediate possession of said horse; now therefore, if said Marum shall pay all costs and damages, which may be awarded against him or sustained by any person by reason of such suit, and shall have the said horse forthcoming to answrer any judgment or order of the justice respecting the same made at any time during the pendency of the action, then the above obligation to be void, otherwise shall remain in full force and virtue." And the said plaintiff in fact saith that after making the said writing obligatory, to-wit, on June, 1878, the said justice, Eugene McGinnis, proceeded to try the said action then pending before him, to-wit, the action of detinue brought by the said David P. Marum against the said John F. Bratt to recover the possession of the said gray horse, and upon the trial of the said action ordered that the said Marum retain the possession of the said horse, &c. but subsequently, to-wit, on theday of, 1878, within the time prescribed by law, upon the application of the said Bratt, the said Justice McGinnis, as the law prescribes, ordered that the said John F. Bratt be allowed an appeal to the county court of Preston county, he having given the bond required by law; and the said action of detinue wherein the said John F. Bratt was appellant and the said David P. Marum was appellee in the county court of the said county of Preston on theday of September, 1878, at which trial the said appellant, John F, Bratt, and the said appellee, David P. Marum, appeared by counsel, and a jury having been sworn to well and truly try the said action, and after hearing the evidence, &c, returned a verdict tor said appellant, John F. Bratt, to-wit, that the said appellant recover from the said appellee the said horse, in the warrant mentioned, or the value thereof, to-wit, sixty dollars; and upon which said verdict the said court for the county aforesaid gave judgment, to-wit, on theday of September, 1878, to-wit, that the said appellant recover from the said appellee the said horse, in the said warrant mentioned, if the said horse may be had, and if not, sixty dollars, value thereof, with interest thereon from the 10th day of September, 1878, and costs, which costs amount to the sum of fifty-three dollars and sixty cents; nevertheless," &c.

To this declaration the defendant demurred, which demurrer was by the court overruled, and on April 19, the case was tried before a jury, and when the plaintiff's evidence was all introduced, the defendant demurred to the evidence, and the jury found a conditional verdict in favor of the plaintiff against the defendant for one hundred and twenty-two dollars and ninety-nine cents. The plaintiff joined in the demurrer to the evidence, and the court gave judgment on said demurrer for the amount so found by the jury with interest and costs.

The defendant also objected to the introduction of certain evidence to the jury, which objection the court overruled and permitted the evidence to go...