Chancey v. Roane County Court
| Decision Date | 22 March 1902 |
| Citation | 51 W.Va. 252,41 S.E. 156 |
| Parties | CHANCEY v. ROANE COUNTY COURT. |
| Court | West Virginia Supreme Court |
ACTION AGAINST COUNTY—REVIEW ON APPEAL—NEW TRIAL.
1. An action in case for damages for injury to person or property against a county court under section 53, c. 43, Code, may be maintained without first presenting a claim or demand therefor to the county court under section 41, c. 39, Code.
2. Syl., point 2, in Shrewsbury v. Miller, 10 W. Va. 115, and Syl.. points 2, 3. in Ruffner v. Hill, 7 S. E. 13, 31 W. Va. 428, approved.
(Syllabus by the Court.)
Error to circuit court, Roane county; Warren Miller, Judge.
Action by Theodosia Chancey and G. H. Chancey against the county court of Roane county. Verdict for defendant was set aside, and it brings error. Affirmed.
Vandale & Starkey, for plaintiff in error.
W. H. Bishop, for defendants in error.
McWHORTER, J. Theodosia Chancey and G. H. Chancey, her husband, brought their action of trespass on the case in the circuit court of Roane county against the county court of said county for damages for a personal injury sustained by said Theodosia by being thrown from her horse in crossing a culvert or small bridge on the public road; the same being so out of repair as to cause her horse to break through, whereby she received severe personal injuries. The defendant demurred to the declaration, which demurrer was overruled, and the defendant excepted. The defendant entered the general plea of not guilty, and filed a special plea averring that the plaintiff's injury setout in the declaration was the immediate result of her own negligence. A jury was impaneled, which, after hearing the evidence, returned a verdict for the defendant, when plaintiffs moved the court to set aside the verdict because contrary to the law and the evidence, and grant the plaintiffs a new trial, which motion was sustained, and a new trial granted. The defendant obtained a writ of error.
The demurrer was based upon the ground that the action could not be maintained against the county court for the recovery of any sum of money due from such county court upon any claim or demand, except it be an order on the county treasury, until such claim or demand had been presented to, and •disallowed in whole or in part by, the court, or until an itemized account or statement thereof had been filed with the clerk of such court, and the court had refused or neglected to act thereon to the close of the second session next after it was so filed with the clerk, or to the close of the first session thereof next after it was presented to the county court; and, in support of this contention, counsel for defendant cite Chapman v. Wayne Co. Ct., 27 W. Va. 49G. It is there held that "no suit can be maintained against the county court of any county for the recovery of any sum of money due from such county, founded on contract, except an order on the county treasury, until such claim or demand had been presented to, and disallowed in whole or in part by, such county court, " etc., as provided in section 41, c. 39, Code. And it is insisted by plaintiff in error that, unless such averments of presentation and disallowance of such claim substantially appear on the face of the declaration, it is for that cause demurrable, and the declaration in this case, not containing such averments, is bad on demurrer, and that the court erred In not sustaining the same. This action is brought under section 53, c. 43, of the Code, which provides, "Any person who sustains an injury to his person or property by reason of a public road or bridge in a county * * * being out of repair, may recover all damages sustained by him by reason of such injury in an action on the case in any court of competent jurisdiction against the county court." This is an independent provision, and it is not contemplated that a claim for unliquidated damages for a tort should be presented to the county court for allowance. In Chick v. Newberry Co., 27 S. C. 419, ...
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