GAS COMPANY v. WHEELING.

• Decision Date: 22 July 1873
• Citation: 7 W.Va. 22
• Parties: GAS COMPANY v. WHEELING.
• Court: West Virginia Supreme Court

7 W.Va. 22

GAS COMPANY

v.WHEELING.

Supreme Court of Appeals of West Virginia.

July 22, 1873.

1.The provision of section 2, of chapter 124, of the Code, us amend-d in 1871, "that process shall be returnable within ninety days from its date," is applicable to a summons in unlawful detainer.

2.Such a summons, returnable to a term of the circuit court, not expressly to the first day, or to any day thereof, upon the authority of a case decided by the Court of Appeals of Virginia, is good.

3.'When a summons in unlawful detainer is returnable to the first day of a term of the circuit court, or to the court generally, when that is equivalent to the first day of the term, it is not necessary that the court should make any order to docket the case.

This was an appeal, by the plaintiff below, from the judgment of the circuit court of Ohio county, rendered on the thirty-first day of October, 1872.The Hon. Thayer Melvin, Judge of the First Judicial Circuit, presided at the trial of the cause.

On the sixteenth day of June, 1871, the Wheeling Gas Company sued out of the Clerk's office of said circuit court of Ohio county, a summons in unlawful detainer, against the city of Wheeling, Andrew J. Sweeney, Michael Reilly, William B. Simpson, George W. Jeffers, Perry Tracy and William Newton Tracy, commanding the said defendants to appear before the circuit court aforesaid, "at the term thereof to be commenced in the month of October next"(which was the third Monday of October and the sixteenth day of the month), to shew cause why they unlawfully withheld possession from the said plaintiff, of certain lots and parts of lots, situated in said city, and particularly described in the summons.The cause was entered on the trial docket of said court, for trial, on the sixteenth day of October, 1871, that being.the first day of the October term, and was, subsequently, continued, generally, for the term.The cause was continued, pursuant to the statute, without any special order therefor, from term to term until the October term, 1872, when the defendants appeared and craved oyer of the said summons, and moved the court to quash the same, which motion the court sustained and dismissed the said cause at the costs of the plaintiff.To this ruling and opinion the plaintiff excepted and tendered its bill of exceptions, which was signed and made a part of the record.It is not deemed necessary to further allude to said bill of exceptions as the substance of the same is hereinafter set forth.The statutes alluded to in the opinion of the court are sufficiently set forth therein.

James S. Wheat, Daniel Lamband Joseph H. Pendleton, for the appellant.

C.IF.B. Allisonand George W. Jeffers, for the appellees.

Hoffman, Judge:

Chapter 124 of the Code relates to "process and the order of publication."The first division relates to "process generally."In the year 1871, section 2 was amended and re-enacted so that it is as follows:-"Process from any court, whether original, mesne or final, may be directed to the sheriff of any county, except that process against a defendant(unless a railroad, canal, turnpike, telegraph company or insurance company be defendant) to answer any action brought under the second section of chapter 123, shall not be directed to an officer of any other county than that wherein the action is brought.Any process may be executed on, or before, the return day thereof.If it appear to be duly served, and good in other respects, it shall be deemed valid, although not directed to any officer, or if directed to an officer, though executed by any other to whom it lawfully have been directed.Process to com-suits, including writs of scire facias, mandamus, prohibition and the alias or other process, when the original is returned not executed, may also be served by any credible person; and the return of such person, verified by his affidavit, shall be evidence of the manner and time of service.Any process shall be returnable within ninety days after its date, to the court on the first day of a term, or in the clerk's office, to the first Monday in a month, or to some rule day, except as follows: A summons for a witness shall be returnable on whatever day his attendance is desired, and an order of attachment may be returnable to the next term of the court, although more than ninety days from the date of the order, and process awarded in the court may be returnable as the court may direct."

Chapter 89 relates to "summary remedy for unlawful entry and detainer," in the circuit court.Sections 1and2 are as follows:

"1.If any forcible or unlawful entry be made upon lands, or if when the entry is lawful or peaceable, the tenant shall detain the possession of land after his right has expired, without the consent of him who is entitled to the possession, the party so turned out of possession, no matter what right or title he had thereto, or the party against whom such possession is unlawfully detained, may within three years after such forcible or unlawful entry, or such unlawful detainer, sue out of the clerk's office of the circuit court of the county in which such land, or some part thereof, may be, a summons against the defendant to answer the complaint of the plaintiff, that the defendant is in the possession and unlawfully withholds from the plaintiff the premises in question (describing the same with convenient certainty); and no other declaration shall be required.

"2.The summons may be returnable to and the case heard and determined at any term of such circuit court.Such summons shall be served at least ten days before the return day thereof.If the defendant appear, he shall plead to the summons, and his plea shall be 'not guilty.'Upon this issue, or upon the return of the first, or any subsequent summons, 'executed', if the defendant fail to plead, a jury shall be impanelled to try whether he unlawfully withholds the premises in controversy.Such cause shall have precedence for trial over all other civil causes on the docket."

Section 2 of chapter 124 is general in its operation applicable to any action, suit or proceeding in which a summons or other process issues from a court, unless some legal provision excludes it from operation in a special class of cases.The proceeding for forcible or unlawful entry or unlawful detainer, is an action in which such process is issued.

Even under'former law, when the proceeding was instituted by a warrant from a justice of the peace, requiring an officer to summon the wrong-doer to appear before two justices of the peace, who, by that authority, should hold a court to try the complaint, it was held that the proceeding was an action subject to a statute applicable to civil actions generally.Harrison v. Mid-dleton. 11 Graft.527;Kincheloe v. Tracewell, Id. 587.When, by subsequent legislation, it was provided that the proceeding should be commenced by a summons sued out of the clerk's office of the circuit court, and that the case should be heard and determined by that court, if there had been doubt on the subject before, none can now remain, that the proceeding was and is an action, to which general statutory and judicial regulations of practice are applicable, except so far as they may be excluded by special provisions.

Section 2 of chapter 124 prescribes to whom process may be directed, by whom and when it may be served and returned, how the return shall be verified; and within what time and to what day of a term of the court, or rules in the office, it shall be returnable.So comprehen sive was it intended that these provisions should be re-garded, that it was deemed proper to annex a special ex-ception to exclude a summons for witnesses, an order of attachment and process awarded in court, from the rigid operation of the statute, and subject such process to the discretionary action of the court.

The section requires that process shall be returnable within ninety days after its date.This provision applies to a summons in unlawful detainer, which is such...