Buena Vista Freestone Co. v. Parrish.

• Decision Date: 31 January 1891
• Parties: Buena Vista Freestone Co. v. Parrish.
• Court: West Virginia Supreme Court

34 W.Va. 652

Buena Vista Freestone Co.

v.Parrish.

Supreme Court of Appeals of West Virginia.

Submitted January 17, 1891.

Decided January 31, 1891.

Justices of the Peace Dismission.

In an action before a justice, where the plaintiff fails to appear and prosecute his action within one hour after the time for appearance mentioned in the summons or last order of continuance, and the defendant has filed no set-off or counter-claim, the proper judgment, if defendant ask it, is one dismissing the action with costs to defendant, but without prejudice to a new action; and there can be no trial of the case on its merits by the justice or a jury, though defendant has tiled a plea; and it is error for the justice to try the case or to allow a jury trial, and render final judgment for defendant.

Campbell § Holt for plaintiffs in error, cited Code, c. 50, ss. 66, 68, 72, 91; Const. Art. Ill, s. 13; 30 W. Va. 304; Const. Art. VI, s. 13.

Simms § Enslow for defendant in error, cited Code, c. 50, ss. 66-68; 59 Am. Dec. 527 and note; 3 Atk, Ch'y 66; 30 W. Va. 301; 3 Bing. 200; 2 Carr. & P. 358; 1 Wilson 300; 21 W. Va. 161.

Brannon, Judge:

In 1889 the Buena Vista Freestone Company instituted an action before a justice in Cabell county against M. F. Parrish and II. M. Maloney to recover a debt due on a note for one hundred and twenty dollars. On the return-day of the summons the defendants appeared, and obtained a continuance. On the day to which the case had been continued the defendants appeared, and filed a plea that the note sued on, which had been filed with the justice, had been obtained by fraud, and one of failure of consideration; but the plaintiff did not appear, and the defendants demanded and obtained a jury, which tried the case, and rendered a verdict for the defendants, and the justice rendered judgment for the defendants. Within fourteen days from the verdict and judgment, the plaintiff asked the justice to set aside the verdict and grant a new trial; and, in support of its motion, filed an affidavit that Parrish admitted the justness of the debt, and said that he had no defence to the action, and that judgment could go, and that he would stay the execution of the judgment; and thus lulled the plaintiff into a feeling of security, which caused it not to appear. The justice refused to set aside the verdict or judgment. The plaintiff then obtained a writ of certiorari from the Circuit Court of Cabell county; and that court reversed the judgment of the justice, set aside the verdict, retained and afterwards tried the case, and gave the plaintiff judgment for one hundred and forty one dollars; and, the Circuit Court having refused to set aside its judgment on the certiorari reversing the justice's judgment, Parrish andMaloney come to this Court.

The only question in this Court is whether there was any such error committed by the justice, as justified the Circuit Court in reversing his judgment; and that depends on the answer to the following questions: What was the proper course for the justice when the plaintiff failed to appear, and the defendants filed their plea? Should he have allowed a jury trial, or should he have dismissed the case for failure of the plaintiff to appear and prosecute his suit, without prejudice to another suit? According to the practice in courts of record at common-law, if the defendant appear and file his plea, and the plaintiff does not appear to reply to it, or do what is necessary to bring the cause to issue, there is judgment against him by non prosequitur. Where a defendant does not appear, there is judgment against him by default; or if he appears, and says nothing in defence, there is judgment against him by nil (licit; in both cases the judgment conceding to the plaintiff the relief called for by his action. Or, where he fails to answer any pleading of the plaintiff during the process of the pleading conducting to the issue, such judgment goes against him. In these cases he is taken to confess the allegation to which he makes no reply. It might seem that where the defendant files his defence, and the plaintiff fails to appear, the defendant ought to have the right to have his defence passed on by judgment, to give finality and rest to him, so that he may not be again harrassed by a second suit; but the law contents itself with simply entering judgment of non prosexpdtur, commonly called in our practice "nonsuit" a term here covering judgment by non prosequitur, nolle prosequi, and technical nonsuits, as also judgments of nonsuit entered under the statute at rules. 4 Minor, Inst. 865. That there is this difference between defendants and plaintiffs is settled. 3 Bl. Comm. 316, says: "Therefore, in the course of pleading, if either party neglects to put in his declaration, plea, replication, rejoinder, and the like, within the time allotted by the standing rules of the court, the plaintiff, if the omission be his, is said to be nonsuit, or not to follow and pursue his complaint, and shall lose the benefit of his writ; or, if the negligence be on the side of defendant, judgment may be had against him for such his default." 4 Minor, Inst. 864 et seq.; 2 Tuck. Comm. 270; 2 Bouv. Law Diet. 303, "Non Pros."

Speaking of default of the parties to prosecute or defend, 1 Bouv, Law Diet, 494, under the word "Default," says: "When the plaintiff makes default, he may be nonsuited; and, when the defendant makes default, judgment by default is rendered against him." This judgment as against defendant would be forever final; but the judgment of nonsuit against plaintiff would not be final, but would allow another suit. Com. Dig. "Pleader," E. 42, B. 11; Bouv. Law Diet, tit, "Judgment by Default." 7 Vin. Abr. 429; Doct. Plac. 208. Thus, had the case been in a Circuit Court, no jury trial could have taken place. All that the defence could have had was a nonsuit, The plaintiff filed bis note, operating as his complaint, under Code 1887, c. 50. s. 50, cl. 8. The defendants filed a plea, in nature one of confession and avoidance, not denying the note, but alleging that it was procured by fraud, and was without consideration; and the defendant failed to appear and...