Gorman v. Steed

• Decision Date: 31 January 1864
• Citation: 1 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: .Terence Gorman v. Robert P. Steed.

1 W.Va. 1

Terence Gorman

v.Robert P. Steed.

Supreme Court of Appeals of West Virginia.

January Term, 1864.

1. The Court of Appeals has jurisdiction in cases of unlawful detainer where possession only is the cause of controversy; possession being such an element of title and boundary to land, as to come within the purview of the Constitution, granting jurisdiction to the court.

2. A writ which purports to run in the name of the "Commonwealth of West Virginia," should be quashed by reason of not being in conformity to that clause of Article 1, Section 5, of the Constitution, providing that "writs shall run in the name of the State of West Virginia."

3. A motion to quash a writ, which is dated October 23d, 1863, and returnable on the "first Monday in July next," when the true date on wrhich it was issued was between the 20th and the 25th of June, 1863,. should be sustained, as the confusion of dates was calculated to delude the defendant as to the day when he should appear and answer the same.

4 A summons in unlawful detainer, should be returnable to Court, and not to rules.

5. No alias can be issued where the original has been returned executed: Code of Virginia, 1860, chap. 170, section 3.

Quaere: Whether the court might not, when necessary to preserve the original action, amend a defective summons in unlawful detainer and award an alias?

6. A United States revenue stamp is not necessary upon an alias summons, it being mesne process.

7. Land described as "a certain tract or parcel of)and lying and being in the county of Ritchie near Gorman's Tunnel, and containing about ten acres," is insufficiently specified, in an action of unlawful detainer.

8. A general verdict for the plaintiff, finds every fact necessary to authorize it: and withholding the possession at the date of the institution of the suit is one of those facts, and it is unnecessary for a verdict in unlawful detainer to distinctly mention it.

Robert P. Steed sued out of the clerk's office of the circuit court of Ritchie county, a summons of unlawful detainer, dated October 23d, 1863, and 1st year of the Commonwealth directed to the sheriff of said county, commanding him to summon Terence Gorman to appear before the Judge of the circuit court of said county, at rules to be holden in the clerk's office of said county on the " first Monday in July next" to answer the complaint of Robert P Steed, that he, said Gorman, had unlawfully taken possession of and unlawfully withheld from him, said Robert P. Steed, the possession of "a certain tractor parcel of land, lying and being in the county of Ritchie, near Gorman's Tunnel, and containing about ten acres." On which the sheriff made the following return: "Executed on the within named Terence Gorman, by delivering to him a copy of the within summons on the 25th day of July, 1863, being ten days before the first Monday of My, 1863."

On the 3d day of August, Steed sued out of the same office another or alias summons, requiring the sheriff of Ritchie to summon Gorman to appear before the Judge of the circuit court of said county, on the first day of the September term next, to answer the complaint of said Steed tor unlawfully withholding the. possession of the premises as described in the original or previous summons.

On the first day of the September term the plaintiff Steed moved for a jury to try the cause, and thereupon the defendant Gorman appeared by attorney and moved to quash the original and alias summons', but the court overruled the motion of the defendant, to which he excepted. Gorman. then pleaded not guilty to the summons and action. A jury being impannelled the cause was tried and the following verdict returned, i. e.: "We the jury find that the defendant unlawfully withholds from the plaintiff, the possession of the premises in the within summons mentioned; and that he has not so held the possession thereof for three years prior to the institution of this suit, and therefore we find for the plaintiff.

The defendant moved the court to set aside the verdict, and grant a new trial, for the reason that the verdict was not responsive to the issue, and did not find Whether or not the defendant unlawfully withheld the premises in question on the day of the suing out of the summons in the cause; but the court overruled the motion, and the defendant by his attorney excepted. The court gave judgment for the possession of the premises, and costs. The court on a subsequent day of the term suspended the judgment for forty days, to allow the defendant time to obtain a supersedeas from this court.

The defendant applied to this court for a supersedeas, which was allowed, assigning for errors, in the judgment of the circuit court, as follows:

1. The court erred in not quashing the original summons. First, because it bears date on the 23d day of October, 1863; Secondly, because it was made returnable to a rule day, and not to a court; Thirdly, because the rule day to which it was so returned has not yet arrived and will not, till July, 1864.

2. The court erred in not quashing the alias, because it was not stamped with an internal revenue stamp, as required by the act of Congress: And because it is not a case in which an alias can be sued out, especially as the original had lost its validity if it ever had any.

3. The court erred in not quashing both original and alias, because neither of them described the land with sufficient certainty,

4. Tho court erred in not setting the verdict aside and awarding a new trial to the defendant, because it, the verdict, is not responsive to the issue, and does not find whether the defendant unlawfully withheld the premises in question, at the time of the institution of the proceedings, and for other reasons apparent on the face of the record.

Benj Wilson and G. H Lee, for the plaintiff in error.

As the petition for the supersedeas, in this case, states the facts with sufficient clearness and precision, it is not deemed necessary to do more than to refer to it for them.

On the first point, we maintain that the court should have sustained the motion to quash the original summons, and erred in overruling it. This summons was clearly void, because returnable to a rule day, instead of to a term of the court. The statute manifestly intends that the process in such a case shall be returnable to a term of the court only, and not to a rule day. There are no rules to be taken in the office, in such a case, and the summons is to stand for the declaration. The proceeding is intended to be a summary one, and it may be heard and determined at the term to which it is returnable. There could be no reason in any such case, to make the process returnable at a rule day, and no propriety in doing so. To make it so returnable would defeat the object of the statute, and hence it expressly directs that it shall be made returnable to a term of the court. The process in this case being, therefore, returnable to a day and place not authorized by the statute, is simply void and should have been quashed. That a process returnable to an illegal and improper return day is void, is a proposition for which no authority need be cited.

But the summons should have been quashed, because, when it was served upon the plaintiff in error, it bore a date that was false and impossible. It was served on the 25th day of June, 1863, whilst it bore date on the 23d day of October, 1863, a day then yet to come. A copy of the summons was delivered to the plaintiff in error as the statute requires, for the purpose of explaining the nature of the complaint against him, and when and where he was to appear and make his defense. It fixes the time by reference to its own date. He is to appear oh the first Monday in July next. Next after what? Of course, after the date of the summons, and that is the 23d day of October, 1863. So that the day when, according to it, lie was to appear and make his defense, was a day then and still yet to come, towit: the first Monday in July, 1864. Moreover, taking the date of the summons as it stands, it was clearly illegal to make it returnable to a day posterior to several intermediate terms of the court. Even where a process may be made returnable to a rule day, it must be made to some rule day previous to the next term, and there is no authority to pass over an intermediate term, and fix the return to a day posterior. Thus the summons was plainly calculated to deceive and mislead the plaintiff in error. He was authorized to take it as it was expressed on its face, nor was he bound to solve any question of error or mistake. And being returnable to a day clearly improper and illegal, he was entitled to have it quashed upon motion, whenever it was produced and relied upon.

Upon the second point we maintain that the court clearly erred in overruling the motion to quash what is called the "alias" summons. If this is to be regarded as an alias summons, there was no authority to issue it. The original summons, (if that falsely dated on the 23d of October, 1863, is to be so regarded,) had been executed, and there could be no authority to issue an alias, after service of the original, as that is only provided for in the case where the original has for any cause not been executed. If the party desired, for any cause, to hold on to his original summons, to save the three years, or for any other reason, and to proceed upon it, he should have applied to the court to quasb the sheriff's return, and to correct and amend his original summons, if that could be done, and if the court allowed that motion, then to ask it to award him an alias summons. He did nothing of this kind, but caused the alias to be issued of his own authority, pending his original, returned duly executed. This he clearly could not do, and this alias summons, if sustainable at all, can only be sustained as an original summons, by treating the words," as we have heretofore commanded you" as surplusage. But, certainly the plaintiff in...