Davis v. Trump

• Decision Date: 27 March 1897
• Parties: DAVIS v. TRUMP et al.
• Court: West Virginia Supreme Court

27 S.E. 397

43 W.Va. 191

DAVIS v. TRUMP et al.

Supreme Court of Appeals of West Virginia.

March 27, 1897

Submitted January 25, 1897

Syllabus by the Court.

1. A plea of former judgment on the same cause of action in bar of the plaintiff's suit, replied to by "No such judgment," should be tried by the court by an examination and inspection of the record, and it is improper to submit the same to a jury.

2. By section 180, c. 50, Code, all formalities in the entries of a justice's judgment are dispensed with, and the same is sufficient if the truth be stated so as to be intelligible.

3. Where the plaintiff already has an intelligible judgment though defective in form and grammar, against the same parties on the same cause of action, he is precluded thereby from instituting another suit therefor before another justice, or in court.

Error to circuit court, Raleigh county.

Action by Albert Davis against R. G. Trump and H. S. Morris. Judgment for plaintiff. Defendants bring error. Reversed.

J. H McGinnis and J. W. McCrary, for plaintiffs in error.

A. P Farley, for defendant in error.

DENT J.

Writ of error to the judgment of the circuit court of Raleigh county in favor of Albert Davis against R. G. Trump and H. S. Morris for the sum of $124, interest, and costs. The facts are as follows: On the 23d day of December, 1893, plaintiff brought suit against the defendants before A. W. Warden, a justice of Raleigh county, for the sum of $200, evidenced by note. Defendants appeared, and entered three pleas,--nil debet former judgment on same note, and release of R. G. Trump, surety, by the acts and negligence of plaintiff. After hearing the evidence, the justice gave judgment against H. S. Morris, but dismissed the action as to the surety, Trump. The plaintiff appealed to the circuit court. The same pleas were in, but, so far as the record discloses, no issue was made thereon, other than orally, either before the justice or in court, and the record fails to show that even oral issue was joined. In the circuit court the trial was had alone on the plea of former judgment, to which there was no replication of nul tiel record, but nevertheless a trial was had by a jury on this plea; but, when the defendants offered to introduce the record in support of their plea, and the justice who rendered the judgment, to prove the identity of the same, the court excluded both the justice and his record, and therefore there was nothing the jury could do but find in favor of the plaintiff.

The first error committed by the court was in submitting a plea of former judgment to a jury, and then finally determining it himself by excluding the pleaders' evidence in support thereof. It is elementary law that a plea of this character must be tried by the court by inspection of the record. 2 Tuck. Comm. 274. If the plaintiff admits the existence of the record, that ends the matter, for the plea bars his suit. If he wishes to deny it, he does so by replying that there is no such record, which he prays may be inquired of by the record. The plea should also set forth the portion of the record relied on, so that issue may properly be joined thereon, and the court may examine and compare the record with the recital in the plea. This is a certain, easy, and fixed rule of practice, and, if complied with, would tend to promote the ends of justice without delay. Neglected, it produces confusion, blunder, and unnecessary costs. To get at the very gist of the case, the only question for the determination of this court is whether there was such a judgment as the defendants sought to rely upon so imperfectly in their plea, which, however, was not objected to for uncertainty and insufficiency. To sustain their plea, the defendants offered the justice's docket, containing the following record:

"Albert Davis, Plaintiff, vs. H. S. Morris and R. G. Trump, Defendants.

"Plaintiff filed note on defendants for $200.00 due on 3d of Nov., 1891, after date of note, issue summons against defendants for said amount on 12th day of October, 1892, and made returnable at Callaway's store on the 18th day of October, 1892, and placed in the hands of A. F. Hawley, constable of Trap Hill district, Raleigh county, West Virginia, to be executed and returned at said place by the 18th day of October, 1892. C. L. Lester, J. P."

"Callaway's Store, Raleigh County, West Virginia, Trap Hill District October 18th, 1892. This cause came on to be heard, summonses returned executed, plaintiff being present. Defendants not appearing plaintiff demanded judgment for $112.00 and costs, amounting to $2.50. Judgment was rendered in favor of plaintiff. C. L. Lester, J. P.

Justice's costs

$1 70

Constable's cost

80

----

Total cost

$2 50

"Issued execution on the above judgment on the 20th day of October, 1892, and delivered to A. F. Hawley, constable of Trap Hill district, Raleigh county, West Virginia, to be executed and returned in sixty days from date of execution. C. L. Lester, J. P."

"Execution No. 1 returned before me on the 18th day of February, 1893, showing that a levy on one gray horse, household and kitchen furniture, the property of Dr. H. S. Morris, to satisfy an execution in my hands in favor of Albert Davis, this, the 25th day of October, 1892. A. F. Hawley, C. R. C. C. L. Lester, J. P."

"Execution No. 2 renewed the 18th day of February, 1893, at plaintiff's request, against H. S. Morris and R. G. Trump, in favor of Albert Davis; levy No. 1, execution transferred to No. 2 execution, this, the 18th day of February, 1893, the execution returned, 'Property not sold.' C. L. Lester, J. P."

"Execution No. 2 renewed to be in full force for 60 days from the 18th day of April, 1893. C. L. Lester, J. P."

"Renewed execution returned before me on the 14th day of October 1893, showing credit by cash of $2.10, showing on its face that the property being not...