Grant v. Wyatt.
| Decision Date | 18 December 1906 |
| Citation | 61 W.Va. 133 |
| Court | West Virginia Supreme Court |
| Parties | Grant v. Wyatt. |
1..TusmcES op the Peace Pleading Demurrer.
A demurrer, although not expressly provided for by the statute, may be interposed by the defendant to the plaintiff's complaint in an action before a justice, and such demurrer will be treated as an exception to the complaint, (p. 135.)
2. Same Appeal Liability on Bond.
The limit of the liability of a surety on an appeal bond given under section 164, chapter 50, Code 1900, conditioned that the appellant will perform and satisfy any judgment which may be rendered against him by the circuit court on such appeal, is the penalty of the bond. (p. 135.)
Same Judgment on /load. Iiemittitur.
When upon trial of the action upon appeal there is found tg be due to the appellee a sum not exceeding the amount of a justice's jurisdiction, but greater than the penalty of such appeal bond, and judgment for such sum is entered against the appellant and his surety on the bond, and the appellee at the time of judgment is allowed to file a remittitur or release, as to the surety, of the excess above the penalty of the bond, the judgment allowing the remittitur is not void, or prejudicial to the appellant or his surety, (p. 138.)
Error to Circuit Court, Jefferson County.
T. C. Green, for plaintiffs in error.
Geo. M. Beltzhoover, Jr., and Forrest W. Brown, for defendant in error.
The process commencing this action, originally instituted before a justice, summoned the defendant to answer the complaint of the plaintiff Grant in a civil action "for the recovery of money for damages," in which the plaintiff demanded judgment for $300.00 with interest and costs according to law. The transcript from the justice's docket shows that the plaintiff "tiled his complaint, items of damages sustained to the amount of $300.00." This complaint is as follows: "J. O. Grant vs. J. E. Wyatt.
Bill of Particulars.
To preparing 65 acres of land on 'Oak Cottage Farm' near Oharlestown, Jeff. Co., W.Va, for wheat.................................... $ 27 34
To 1-3 of 65 acres wheat at 16 bus. per acre, 1040
bus. 846 2-3 bus. at 70c per-bus____......... 242 66
To plowing 50 acres for corn, 30 days at $1...... 30
Total................................... $300 00"
The defendant pleaded non-assumpsit and set-offs. The trial resulted in judgment for plaintiff for $143.97 with interest and costs. The defendant appealed to the circuit court of Jefferson county. The appeal bond, with Ellen Wyatt as surety, was in the penalty of $287.94, double the amount of the judgment, and was conditioned that appellant would perform and satisfy the judgment of the circuit court on such appeal. In the circuit court the appellant demurred to the appellee's cause of action as in the record set forth, which demurrer was overruled, and appellant pleaded the general issue and set-offs. Appellant's motion to set aside the verdict and in arrest of judgment was overruled, and judgment was entered "that the plaintiff do recover of the defendant, J. E. Wyatt, and Ellen W. Wyatt, his surety on the appeal bond given in this case, the sum of three hundred dollars and his costs in the justice's court and in this court expended, the plaintiff hereby remitting and releasing as against said surety all excess over and above the sum of $287.94, the penalty of the appeal bond." For convenience we will hereafter refer to the parties as appellant and appellee, corresponding to their situation in the circuit court. The appellant and his surety bring the case here by writ of error for review.
The first matter presented is the demurrer. The statute does not expressly provide for a formal demurrer in an action before a justice, but does provide that either party may except to a pleading of his adversary when it is not sufficiently explicit to be understood, or it contains no cause of action or defense. Sub-section 6, section 50, chapter 50, Code 1906. A demurrer has been said to be an objection that the pleading against which it is directed is insufficient in law to support the action or defense. 6 Am. & Eng. PI. & Pr. 296; Tyler v. Hand, 7 How. (U. S.) 581. The word "except," as used in the statute, is synonymous with the word "object." The demurrer being an objection to the pleading, it follows that it may be interposed by the defendant to the plaintiff's complaint, in lieu of an exception, and when interposed it will be treated as an exception to the complaint.
This brings us to the question as to the sufficiency of the appellee's complaint. The pleadings in a justice's court may be oral or written.. The trial upon an appeal may be upon the pleadings hied before the justice, or upon new or amended pleadings. Poole v. Dilworth, 26 W. Va. 583. No formality in the pleadings is required. If they state a cause of action or defense, as the case may be, in such a manner as to enable a person of common understanding to know what is intended, they are sufficient, however awkward or informal they may be. Sub-section 5 of said section 50; Davis v. Trump, 18 W. Va. 191; Jones v. Browse, 32 W. Va. 444. So much of the summons as states a cause of action is to be considered as a part of the complaint. O'Connor v. Bils, 43 W. Va. 554; Longacre Colliery Co. v. Creel, 57 W. Va. 347; Bouse v. Vandervort, 80 W. Va. 327. The complaint re- ferred to in the justice's docket in this case is called a bill of particulars; but we will not condemn it for its name, if it is sufficient in substance. It is in form an itemized account by the appellee against the appellant, aggregating $300.00. It shows the nature and amount of each item with which the appellee seeks to charge the appellant. It is plain and intelligible. When read in connection with that part of the summons claiming damages and demanding judgment for $300.00, it states a cause of action in such manner as would enable a person of common understanding to know what was intended. We hold the complaint sufficient.
The appellant and his surety assign as error the action of the court in refusing a new trial, claiming that the evidence was insufficient to support the verdict, and that there was a variance between the evidence and the complaint. This assignment of error involves a consideration of the evidence, and we do not find that all of the evidence was certified by the court below. At the time of the entry of the judgment, leave to file a bill of exceptions certifying all of the evidence was taken, but the bill of exceptions afterwards filed does not contain a certificate that the evidence embraced in the bill is all of the evidence adduced upon the trial. Under these circumstances, we must presume that there was evidence which supported the verdict. Dudley v. Barrett, 58 W. Va. 235; State v. Ice, 31 W. Va. 214; Edgell v. Conway, 24 W. Va. 747.
The appellant and his surety claim that the judgment is void, or at least erroneous and prejudicial to them. When the verdict was rendered, the circuit court was presented with an anomalous situation, one which we apprehend rarely occurs. The verdict was for $300.00; the penalty of the appeal bond was $287.94; the penalty had been fixed in accordance with the statute. Section 172, chapter 50, Code 1906, provides that, "when the judgment appealed from is against the appellant for any sum of money, and an equal or greater sum is found due by the appellant, judgment shall be rendered by the circuit court against the appellant and ihose who signed the bond first named in section one hundred and sixty-four, if such bond be given, for the sum clue, including interest and costs up to the time the appeal was taken, with damages on the aggregate at the rate of ten per cent per an- num, until payment, and the costs of the appeal." Section 173 of the same chapter provides: The liability of the surety on the appeal bond is limited by its penalty. Perry v. Horn, 22 W. Va. 385; ...
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