Cook v. Continental Cas. Co.
| Decision Date | 16 April 1918 |
| Docket Number | 3482. |
| Citation | 95 S.E. 835,82 W.Va. 250 |
| Parties | COOK v. CONTINENTAL CASUALTY CO. |
| Court | West Virginia Supreme Court |
Submitted April 9, 1918.
Syllabus by the Court.
The right of a defendant to appeal from the judgment of a justice, and thereby to remove the case into the circuit court to be tried de novo and to have the cause determined without reference to the judgment of the justice on principles of law and equity, as provided by section 169 chapter 50, Barnes' Code, 1916 (Code 1913, § 2723), is not affected or abrogated by section 50a of said chapter being chapter 79, Acts 1915 (Code Supp. 1918, c. 50, § 68a [sec. 2622a]), requiring a counter affidavit as therein provided as a pre-requisite to the filing of any answer to the action and to make defense thereto. He may notwithstanding said section 50a file with his answer such counter affidavit upon appeal in the circuit court.
The provision of said section 169, that appeals may be tried upon the pleadings made up in the justice's court, or upon amended pleadings before or during the trial, interpreted in the light of our decisions relating to proceeding before justices, does not limit the parties strictly to amendment of pleadings filed before the justice, but includes new and different pleadings when necessary to the ends of justice.
The affidavit of the plaintiff filed before the justice pursuant to said section 50a, which, as in this case, omits substantial requirements of that section, should be treated as ineffectual either in the justice's court or upon the trial de novo upon appeal in the circuit court to cut off proper defenses or preclude the defendant from filing with his answer his counter affidavit as provided by said statute.
Such a statute as said section 50a should be so construed as to operate in harmony with the general statute and not to infringe upon it when the terms thereof fairly and reasonably considered will permit such construction.
Error to Circuit Court, Wyoming County.
Action by Dan W. Cook against the Continental Casualty Company. From a judgment of the circuit court in favor of plaintiff, on appeal from a judgment of a justice, defendant brings error. Reversed, appeal reinstated, and case remanded to circuit court for further proceedings.
Childers & Gorby, of Pineville, for plaintiff in error.
F. E Shannon, of Pineville, for defendant in error.
This is a writ of error by defendant to the judgment of the circuit court rendered against it in favor of plaintiff upon an appeal by it from the judgment of a justice.
Defendant is a foreign corporation and service of the summons of the justice was had upon it by acceptance of the Auditor only which of course was sufficient to confer jurisdiction, but for some reason not apparent from the record defendant did not appear before the justice to make defense to the action.
No formal complaint was filed before the justice, but according to the summons plaintiff's action was for the recovery of money due on contract in which he would claim judgment for $300.00, exclusive of interest and costs. The transcript of the justice's docket makes no note of the filing of any complaint or claim by plaintiff on the date of the summons; but, on December 23, 1916, the return day thereof, his docket shows that plaintiff with his attorney appeared and filed a sworn statement of account against the defendant for the sum of $150.00, alleged to be due on health and accident policy No. 3336756, covering illness from September 1, 1916, to November 17, 1916, with affidavit thereto that the defendant corporation "is due him the sum of $150.00, as per above itemized statement, and that said Continental Casualty Company, a corporation. is due affiant said sum of $150.00, after allowing all credits, counter claims and setsoff." After waiting one hour, and without other evidence than the affidavit, the justice proceeded to pronounce judgment for plaintiff against defendant for the sum claimed by him therein. Subsequently, on January 2, 1917, defendant appeared before the justice and applied for an appeal, which, upon filing a proper bond approved by the justice, was awarded, and the transcript and papers in the action were duly certified to the appellate court, where the case was duly docketed. On February 12, 1917, in the circuit court, defendant appeared and tendered and asked leave to file its counter affidavit, required by section 50a, chapter 50, Barnes' Code, 1916, which was objected to by plaintiff, but for reasons appearing to the court the motion was not then passed upon and the case was continued to the next term.
At the subsequent May term the order entered in the case shows that the plaintiff then tendered, and, over defendant's objection and demurrer thereto and motion to quash the same, overruled, was permitted to file, a special plea challenging the jurisdiction of the circuit court upon said appeal for the reasons and upon the grounds alleged therein that defendant had made no appearance before the justice and filed no counter affidavit to the affidavit filed by plaintiff, and wherefore it was alleged the court had no jurisdiction of said appeal. Thereupon upon said grounds the court was of opinion to sustain plaintiff's motion to dismiss said appeal, when, as shown by the same order, the defendant again tendered and offered to file its counter affidavit and also an affidavit of diligence, but upon objection thereto the court again denied defendant the right to file said affidavits and undertook to and did pronounce judgment against it and the sureties on its appeal bond for the sum of $158.75, being the aggregate of the principal, interest and costs, as found by the justice, with interest thereon until paid and costs. The defendant moved to set aside said judgment and grant it a new trial, which was overruled, and defendant excepted. On the following day, May 25, 1917, the court apparently of its own motion entered an order setting aside said judgment as having been improvidently entered, and by agreement of counsel as the order recites the case was continued until the next term.
On August 22, 1917, when the case was again called defendant again tendered and asked leave to file its counter affidavit as required by said section 50a, chapter 50, Barnes' Code, which was again objected to by plaintiff and the objection sustained, and then over defendant's objection and exception, and demurrer thereto, overruled, plaintiff was again permitted to file his said plea to the jurisdiction of the court, and thereupon, on motion of plaintiff and upon the grounds set forth in his said plea, the court was again of opinion to and did dismiss said appeal with costs to plaintiff against defendant and the sureties on its appeal bond, but omitting judgment for the debt as in the previous judgment which was set aside as having been improvidently awarded. The last judgment is the one to which the present writ of error is directed.
The primary question presented for decision is, has section 50a of chapter 50, Barnes' Code, 1916, being chapter 79, Acts 1915, so modified the law as it previously existed as to make it a condition precedent to the right of a defendant to appeal from the judgment of a justice and to give the circuit court jurisdiction of such appeal that he should have appeared before the justice and filed his plea or answer with counter affidavit as provided therein and made defense in the justice's court? Although section 2, of chapter 79, of said Act of 1915, repeals all acts and parts of acts inconsistent therewith, we do not think it was intended to make any change in the provisions of said chapter 50 relating to the right of appeal to the circuit court. That act is an independent statute. It does not purport to be an amendment or addition to said chapter 50 of the Code; besides there is nothing in it inconsistent with any section or provision of said chapter. Section 163 thereof provides that in all cases an appeal shall lie under the regulations therein prescribed from the judgment of a justice to the circuit court of the county, when the amount in controversy on the trial before the justice exceeds fifteen dollars, exclusive of interest and costs, or the case involves the freedom of a person, the validity of a law or an ordinance, etc. And all that is required by section 164 of that chapter is that within ten days after the judgment rendered appellant shall give a bond as therein provided and approved by the justice. When this has been done the appeal is thereby perfected and its effect, unless changed by the new statute, as has been before decided, is to vacate the judgment of the justice and render it ineffectual; and the function of such appeal is to transfer the case from the justice's court to the circuit court for a new trial, irrespective of...
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