Hart v. Baltimore

• Decision Date: 10 July 1873
• Citation: 6 W.Va. 336
• Court: West Virginia Supreme Court
• Parties: Hart v. Baltimore & O. R. R. Co. IRA Hart, Plaintiff in the Court below and Defendant in error against the Baltimore and Ohio Railroad Company, Defendant in the Court below and Plaintiff in Error.

6 W.Va. 336

Hart

v. Baltimore & O. R. R. Co.IRA Hart, Plaintiff in the Court below and Defendant in error against the Baltimore andOhio Railroad Company, Defendant in theCourt below and Plaintiff in Error.

Supreme Court of Appeals of West Virginia.

Decided July 10th, 1873.

Syllabus.

It is the visual course when the opinion of the court is in favor of the defendant on a demurrer to the whole declaration, to allow the plaintiff to withdraw his joinder in the demurrer, and amend his declaration, if the ground upon which the demurrer is sustained is of such a nature, as can he removed by an amendment. And. there is no difference in this respect at common law or by statute between penal, and other actions.

So'much of sec. 56 of Chap. 125 of the Code of this State as provides, that, if the court overrule the objection, and allow the plea to be filed, the plaintiff may take issue thereon, without losing the benefit of the objection, and may on appeal from a judgment rendered in the case in favor of the defendant, avail himself of the error committed in allowing such plea to be filed, without excepting to the decision of the court therein, does not apply where the plea is rejected by the court. In such case the judgment of the court rejecting the plea should be excepted toby the party offering it.

3. If a plea is filed by a defendant, without objection, and thereby becomes a part of the record, and afterwards the court on motion of the plaintiff, rejects the plea, and the defendant fails to except to the opinion of the court in rejecting the plea the Appellate Court must presume that the defendant acquiesced in the decision of the court in rejecting the plea.

4. Although it may, strictly speaking, be irregular for the court after an improper plea has been filed, and thereby become a part of the record, to entertain and grant a motion to reject the same, still if the court does so, it must, in substance and effect, abe regarded as setting aside the plea, and though it is done irregularly the proceedings will not be reversed for such irregularity. In such case the court having done right substantially, its proceedings will not be reversed because of mere informality in the mode of doing it. 5. If an insufficient plea be tendered, and permitted to be filed, it is competent and proper for the court at a subsequent time to correct that error by setting aside the plea.

6. In an action upon a penal statute, more than a year after the cause of action accrued, the plaintiff, on a demurrer to his declaration being sustained, asked and obtained* leave of the court to amend his declaration, against the objections of the defendant, and the declaration is amended in court, and thereupon the defendant tenders to the court a plea, in substance, that the plaintiff, his action ought not to have and maintain, because, the cause of action did not accrue within one year before he filed his amended declaration:

Held,

That under the law in force in this State on the 9tb day of March 1869, the statute of limitations did not run in such case in favor of the defendant up to the time of the filing of the amended declaration, but only until the commencement of the suit, that is the issuing of the original writ.

7. When there is a demurrer to a declaration and no formal joinder therein appears to have been entered of record, but the record shows that the "parties appeared by their attorneys, and the matters of law arising upon the defendant's demurrer to the plaintiffs declaration, being argued by counsel, and considered by the Court the same is overruled.

Held,

That although it may have been irregular for the court to act upon the demurrer without joinder therein being entered of record, still the judgment of the court below will not be reversed for this cause, if the declaration is good. 1873. 8. a corporation should sue and be sued by its true name, and if it is sued by its true name it is not necessary to show in the declaration how it was incorporated, or to aver in the declaration that it is a corporation duly constituted, or that it is authorized by law to sue or be sued in its corporate name; but these questions may be put in issue by the defendant, or raised upon the trial of the general issue.

9. It is a general principle in pleading that it is not necessary to allege in the declaration more than it is necessary to prove at the trial, except so far as maybe necessary for a right understanding of allegations that are required to bo proved.

10. A private law is one which relates to private matters which do not concern the public at large, and a public law is one which effects the public, either generally or in some classes.

11. The courts take judicial notice of all public laws or acts of the Legislature, and they need not be proven. Private laws or acts of the Legislature, it seems, must be proven when in issue.

12. Under the Code of 1860, and the Code of 18G8, acts and resolutions of the Legislature, though local or private, may be given in evidence without being specially pleaded; and an appellate court must take judicial notice of such as appear to have been relied on in the court below.

18. In considering the demurrer to the declaratian in this cause if the acts of the Legislature incorporating the Defendant can be considered private acts, it was competent for the Court to read and consider said acts on their being brought to its attention by the Plaintiffs attorney.

14. The 61st Chap, of the Code of 1860 is a public law.

15. The acts of the Legislature conferring corporate powers and privileges upon the Baltimore and Ohio Railroad Company are such public acts as the Court should notice ex officio.

16. The Court ex officio knows that the Baltimore and Ohio Railroad Company is an incorporated railroad company within the boundaries of this State, and was when Chap. 61 of the Code of 1860 of Virginia took effect, and was before and at the time said chaptetook effect, governed by the act passed by the Legislature of Virginia on the 11th day of March 1837, prescribing general regulations for the incorporation of railroad companies so far as the same can apply.

17. It was not necessary to allege in the declaration in this case that the rates prescribed by sec. 19 of Chap. 61 of Code of 1860, applied to the road of Defendant, nor that different rates had not been prescribed by law.

19. Under the provisions of the Code of Virginia of 1860, Chap. 171, sec. 31, and of the Code of "West Virginia, Chap. 125, sec. 29: On a demurrer, (unless it be to a plea in abatement), the court can not regard any defect or imperfection in the declaration or plead-ings unless, there is omitted something so essential to the action or defence that judgment according to law and the very right of the cause cannot be given.

20. The action in this case is based upon the provisions of the 61st Chap, of the Code of 1860, 1st and 18th sections thereof.

21. The amended, declaration in this cause is sufficient in law.

22. The appeal in this case was properly taken by the Appellant, because the controversy is "concerning the right of a corporation to take toll."

23. It is unnecessary to prove before the Court matters of law or fact of which it may take judicial notice.

21. The joinder in demurrer not being added is not an available error in an appellate court, when the demurrer has been argued and decided on its merits below without the objection being made.

The case is stated in the opinion of the Court.

Lee for Plaintiff in error.

Basil for Defendant in error.

Haymond, President.

In this case the Plaintiff brought an action of trespass on the case, in the Circuit Court of the county of Harrison, against the Defendant, for charging and receiving for transporting on its road a portable saw mill of the Plaintiff, more than was lawful for the Defendant to demand and receive. The action was commenced on the 7th day of April 1868, and the declaration was filed at May rules of same year. At the September term, 1868, of the Court, on motion of the Defendant, the judgment and order of inquiry entered at rales in the cause were set aside, and the Defendant demurred generally to the declaration, and the Plaintiff joined in the demurrer. The Defendant at the same time filed a plea of not guilty, uppn which issue was joined. Afterwards, at the December Term 1868, the Court sustained the demurrer to the declaration.

Thereupon on the same day the Plaintiff moved the Court to grant him leave to amend his declaration, and Defendant objected to the Court granting the leave.

The Court took time to consider the motion. Afterwards, at the March Term 1869, the Court granted to Plaintiff leave to amend his declaration, and the declaration was at once amended in Court. The Defendant on the same day appeared in Court and demurred generally to the amended declaration, and also pled not guilty. Upon this plea issue was regularly joined. At the same time the Defendant filed, as the record states, a special plea in writing. The special plea is copied into the record now before this Court. It does not appear by the record that the Plaintiff at the March Term 1869 moved the Court to reject the special plea or replied, or took any notice or action whatever in relation thereto. Afterwards, at the October Term 1870, the parties appeared by their attorneys, "and the matters of law arising upon the Defendant's demurrer to the Plaintiff's declaration being argued by counsel, and considered by the Court, the same" were overruled. It does not appear that joinder in the demurrer to the amended declaration, by the Plaintiff, was entered of record. In fact, the record only shows that the Defendant demurred to the amended declaration, and that the demurrer was considered by the Court, and disposed of as before stated. Afterwards and at the same term at which the demurrer was overruled, the Plaintiff moved the Court to reject the special plea filed in the cause, and the Court after argument sustained the...