Crowe v. Corp. of Charlestown
| Decision Date | 18 April 1907 |
| Parties | CROWE v. CORPORATION OF CHARLES TOWN. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
Bills of exceptions are required to be signed at the term at which the trial is had, or within 30 days after the adjournment thereof, and after the expiration of such time there is no jurisdiction to sign such bills; nor can jurisdiction to do so be conferred by consent of parties.
A municipal corporation changes the established grade of one of its streets. An action lies by the owner of property abutting on such street for damages caused by such change in grade.
In actions ex delicto, it is not necessary, as a prerequisite to his right to sue, that the plaintiff allege a demand against the wrongdoer.
Error to Circuit Court, Jefferson County.
Action by M. A. Crowe against the corporation of Charles Town. Judgment for plaintiff. Defendant brings error. Affirmed.
Forrest W. Brown and T. C. Green, for plaintiff in error.
McDonald & Beckwith, for defendant in error.
SANDERS P.
The plaintiff, M. A. Crowe, brought an action of trespass on the case against the corporation of Charles Town in the circuit court of Jefferson county, for the purpose of recovering damages alleged to have been sustained by her by reason of a change in the grade of one of its streets, upon which certain property owned by her abutted, and which resulted in a verdict and judgment for the plaintiff, and the defendant applied for and obtained a writ of error.
The first question arising is whether or not the demurrer to the declaration should have been sustained. It is claimed that it does not give the defendant fair notice of the plaintiff's claim, or for what damages are demanded. The declaration shows the plaintiff was the owner of a certain house and lot, situate within the corporate limits of Charles Town, abutting upon Samuel street, and that the defendant changed the grade of the street by making fills therein thereby raising the same. This allegation would seem to be sufficient to inform the defendant of the plaintiff's ground of complaint, and sufficient to enable it to defend. It surely would not be necessary to aver the exact height of the fill or just to what elevation the street had been raised. The defendant had notice that the plaintiff charged it with changing the grade of a certain street at a certain place; that she claimed that her property abutting thereon had been injured by reason thereof, and that she would ask to be compensated in damages therefor. It is argued that in the declaration it is alleged that the defendant wrongfully, unlawfully, and injuriously, without the plaintiff's consent, filled the street along and in front of the plaintiff's property, and thereby caused a high embankment to be made along the whole of the front of her property, from four to five feet high, raising the grade of the street two or three feet higher than it was when she bought the property. There is nothing uncertain in this allegation. The raise in the grade of the street could very easily have been four or five feet, and the embankment thereby caused to extend four or five feet higher than her property, and at the same time the raise in the grade since the property was purchasd by her might only have been two or three feet, and whether it is called a fill in the street or an embankment along and in front of her property is immaterial, because it is alleged to have been placed there by the defendant, and it would seem that this certainly would be sufficient notice to it. The question as to the extent of the raise or fill goes to the quantum of damages, and whether permanent or temporary would be a question to be submitted to the jury, as the plaintiff would be entitled to recover such damages as she has sustained, although the injury might be temporary. An allegation that the defendant intended to maintain the street permanently in the condition as filled certainly would not be necessary to save the declaration from criticism. The defendant claims that the declaration is bad because it seeks to recover for acts alleged to have been committed after the institution of the suit. Upon a fair and reasonable construction of the declaration, this position is not tenable, and in fact it is difficult to see how a declaration could be filed to recover damages for an anticipated injury--one that has never been committed. This declaration is filed to redress an alleged wrong, setting forth and describing its nature, and of what it consists. It cannot be said that it is filed for the purpose of recovering for a wrong yet to be committed. It is true there is an allegation in the declaration that "plaintiff was, on the 1st day of April, 1904, and has been continuously since and now is, in the actual occupancy and possession of said lot and premises, jointly with one _______ Conklyn, the said Conklyn occupying a portion of the premises under a lease from plaintiff from April 1, 1904, to April 1 1905." This last date being the last date given, thereinafter it is alleged: "Nevertheless, the defendant well knowing the premises, to wit, on the day and year last aforesaid," did, etc. The declaration was filed at January rules, 1905, and it would be very unreasonable to say that the reference was to a future date, when the plaintiff was seeking to recover damages for an injury already sustained. It is perfectly obvious that this clause related to the 1st day of April, 1904, the time the plaintiff alleges she was the owner of the property--in fact, it is the only one it could have had reference to, and a reasonable, common-sense construction forces us to so hold. It would be technical in the extreme to hold otherwise. On a demurrer the court will not regard any defect or imperfection in a declaration unless there has been omitted something so essential to the action that judgment according to law and the very right of the cause cannot be given. Section 29, c. 125, Code 1899 [section 3849, Code 1906].
Another objection to the declaration is that it is not averred that a demand was made upon the defendant for damages claimed to have been sustained by her, and Hutchinson v. Parkersburg, 25 W.Va. 226, is cited to support this position. This case does not decide that such demand is a condition precedent to the bringing of the suit; in fact, such point did not arise. It is true in the syllabus it is held that the right of action exists after a demand has been made, yet it is not held that such demand is a prerequisite to the right to sue. We cannot say and the authorities do not hold that before one has a right to sue a municipal corporation for a tort a demand is necessary. The commission of the tort gives a present right of action. 1 Barton's Law Pr. p. 320. "A request or demand must always be averred where the object of that request is to oblige or enable the other party to do something; but, if the matter is a debt, or duty to pay money presently, no previous demand need be alleged." Hogg's Pleading and Forms, p. 61. Also, see, 3 Robinson's Practice, 603, and cases cited. These authorities have reference to actions ex contractu, and are cited to show that even in those cases a demand is not necessary when there is a present right of action. It is the universal rule that no demand is necessary in actions for tort. "It is universally held, even in those jurisdictions where demand is required under other circumstances, that, as against wrongdoers, no demand is necessary as a prerequisite to action." 1 Cyc. 695, and numerous cases cited. We find no fault with the declaration, and are of opinion that the demurrer was properly overruled.
There are many other assignments of error, but we are precluded from passing upon them, as their determination involves a consideration of the evidence, which we find has not been made a part of the record. Prior to the passage of our statute (section 9, c. 131, Code 1899 [section 3979, Code 1906], bills of exceptions were required to be taken at the term at which the trial was had and judgment pronounced; but by this statute it is provided that they may be taken, signed, and certified to the clerk, and made a part of the record within 30 days from the adjournment of the term. But for this enactment no bill of exceptions after the term ended could be signed and made a part of the record, and the only authority that a judge has for doing so now is by virtue thereof. This court has repeatedly held that it must be done in the 30 days provided for, and cannot be done after that time; but this case now presents a different question to any that has been before this court for consideration. in this: It is claimed that the attorneys for the plaintiff and defendant agreed in writing that the bill of exceptions could be signed and certified after the expiration of 30 days, and be made a part of the record the same as if done within the 30 days. In disposing of this question, it may be well to review the decisions and statutes of this state and Virginia, and of some of the other states.
The practice under our statute, prior to the passage of the acts of 1891, required bills of exceptions to be tendered to the court...
To continue reading
Request your trial