Dickey v. Smith
| Decision Date | 16 December 1896 |
| Parties | DICKEY v. SMITH. |
| Court | West Virginia Supreme Court |
Submitted September 15, 1896
Syllabus by the Court.
1. Where the plaintiff's demand is not controverted, but the defendant files and relies on a bona fide set-off exceeding $100 in amount, which is wholly disallowed, the amount of such set-off determines the jurisdiction of this court.
2. The last sentence of section 91, c. 50, of the Code, to wit "No more than one new trial shall be granted by a justice in any case," construed to mean that not more than one new trial shall be granted either party in any suit.
3. A defendant is entitled to set off a bona fide claim assigned to him at any time before commencement of suit. The amount paid therefore, if anything, is a matter between the assignor and assignee, with which the plaintiff has nothing to do if he justly owes such claim.
Error to circuit court, Cabell county
Action by Hamilton Dickey against E. Howard Smith before a justice. Judgment for plaintiff. Defendant brought certiorari to the circuit court. From an order dismissing the same, defendant brings error. Reversed.
Williams & Scott and Campbell & Holt, for plaintiff in error.
McCollister Blackwood & O'Bierne, for defendant in error.
Hamilton Dickey sued E. Howard Smith before a justice of Cabell county for the sum of $99.25. On the day of trial, Smith appeared and filed a set-off assigned to him by John Rau, agent, amounting to $124. There was no dispute as to the validity of either claim, as appears from the evidence; but the sole question involved was whether the assignment was made before or after the suit was begun. The justice decided in favor of the defendant, and gave him judgment for $11.75 the balance due on the account. October 10, 1895, on motion of the plaintiff, the justice opened the judgment, and granted plaintiff a new trial. The plaintiff thereupon demanded a jury, which was granted him; and on the 21st day of October, 1895, the jury found a verdict in his favor for the full amount of his account.
Defendant, in turn, moved the justice to set aside the verdict, and grant him a new trial. The justice, under the provision of section 91 of chapter 50 of the Code, that "no more than one new trial shall be granted by a justice in any case," overruled the motion, and entered up judgment on the verdict. The defendant excepted, had the evidence certified, and obtained a writ of certiorari to the circuit court. But, on motion of the plaintiff, the circuit court, by its final judgment, entered of record on the 27th day of December, 1895, dismissed the certiorari, as improvidently awarded. A writ of error was awarded.
Three questions are presented by the parties and the record for the determination of this court:
1. Is the amount in controversy sufficient to give this court jurisdiction? The plaintiff insists that, as the judgment against the defendant is less than $100, it must determine the amount in controversy so far as this court is concerned. Railroad Co. v. Foreman, 24 W.Va. 662; McCoy v. McCoy, 33 W.Va. 60, 10 S.E. 19; Rymer v. Hawkins, 18 W.Va. 309; Aspinall v. Barrickman, 29 W.Va. 508, 2 S.E. 795. This would undoubtedly be true if the only matter in controversy was plaintiff's claim, but the defendant filed a set-off or counter claim amounting to the sum of $124, which was wholly disallowed him. As to this set-off he is deemed to have brought a suit against the plaintiff. Code, c. 126, § 9. There being no dispute as to plaintiff's claim, the true amount in controversy is fixed by defendant's set-off. Nor does it matter what he paid for the set-off, or whether it was a gift to him if the plaintiff owed it, as these are matters between the assignor and assignee alone, and with which the plaintiff has nothing to do. It is complained that the assignment was merely made to enable the assignor to collect so much of his debt. This is also a matter under the pleadings with which the plaintiff had nothing to do. If he owed the Rau debt, he is under legal obligation to pay it, and it does not matter to him to whom he pays, so he gets relieved therefrom.
2. Was the justice inhibited by section 91 of chapter 50 of the Code from granting the defendant a new trial? The section is as follows, to wit: The defendant insists that the last sentence of this section applies to jury trials alone, and that, as the one new trial granted was on motion of the plaintiff to the judgment of the justice, he is entitled to a new trial as to the verdict of the jury. The plaintiff, on the other hand, insists that because he obtained a new trial from the judgment of the justice against him, and then applied for and had a jury try the case, which brought in a verdict in his favor, by the inhibition of the statute such verdict is beyond the power of the justice, though it be procured by fraud or undue means or be the result of partiality or prejudice, or be manifestly contrary to law or the evidence, and is therefore final and conclusive, even on the higher courts, as held in the case of Manufacturing Co. v. Carroll, 30 W.Va. 532, 4 S.E. 782. To construe this law thus strictly is to make it bear very harshly on a plaintiff, who, having obtained a just judgment against a defendant, had such judgment set aside by the justice at the instance of the defendant, who desires another opportunity to be heard, and who then procures a change of the trial tribunal, by demanding a jury, and succeeds in some manner, legal or illegal, just or unjust, in obtaining a verdict, contrary to both law and evidence. It is denying to him that equal protection of the laws which is sought to be secured to every citizen by the constitution of this state by the provision that "the courts of this state shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay." It is simply saying that the defendant, however meritorious the claim against him, if he can succeed in getting the judgment of the plaintiff set aside, and in any manner can procure a verdict of a jury in his favor, has exhausted the power and authority of the justice and all the superior courts to disturb the verdict, and afford the plaintiff an opportunity to show the injustice that has prevailed against him. Such a construction put on the language used by the legislature is entirely too narrow to meet the ends of justice. The provision governing the circuit court found in section 15, c. 131, Code, is that "not more than two new trials shall be granted to the same party in the same cause." Before a jury was allowed in justice's trials, the law found in section 53, c. 226, Acts 1872-73, was that, "if judgment be entered a second time against the defendant, it shall not again be set aside"; showing the evident intention of the lawmakers to permit not only one trial but one new trial to either party before a justice; thus allowing the case, if adverse judgments are obtained, to be tried three times before finally was reached, and then allowing an appeal and a hearing de novo with the chances of four jury trials in the appellate court, with the right to appeal, if the amount was sufficient, to the supreme court of appeals. To give plaintiff's construction to the statute under...
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