Hickman v. Baltimore & O.R. Co.

• Decision Date: 12 November 1887
• Citation: 4 S.E. 654,30 W.Va. 296
• Parties: HICKMAN v. BALTIMORE & O. R. CO.
• Court: West Virginia Supreme Court

4 S.E. 654

30 W.Va. 296

HICKMAN v. BALTIMORE & O. R. CO.

Supreme Court of Appeals of West Virginia.

November 12, 1887

Submitted September 9, 1887.

Syllabus by the Court.

According to the common law, as recognized and settled in this state there can be no final judgment by default in any action at law sounding in damages, in the absence of a writ of inquiry either in the circuit court or before a justice, when the value in controversy or the damages claimed exceeds $20, and the right of either party, if he demands it, to have such writ executed by a jury, is guarantied by our constitution.

The judgment of a justice rendered upon the verdict of six jurors in an action for damages, in which no defense was made by the defendant, cannot be tried de novo by the circuit court upon appeal.

WOODS J., dissenting.

Error to circuit court, Taylor county.

For dissenting opinion, see 7 S.E. 455.

J. W. Mason and H. M. Russell, for plaintiff in error.

Jos. Marum and Frame & Holt, for defendant in error.

SNYDER J.

Civil action commenced before a justice of Taylor county, September 26, 1885, by W. L. Hickman v. Baltimore & Ohio Railroad Company, to recover damages for a trespass. The summons was duly served, and the defendant appeared, and, by consent of the parties, the case was twice continued, the last time to the twenty-second October, 1885. The plaintiff appeared at the time thus fixed, and, after waiting one hour, he stated the grounds of his complaint, which the justice recorded as follows: "That on September 18, 1885, at Grafton, in Taylor county, he was a passenger on the railroad cars of the defendant, which is a common carrier for hire, and that while on the said cars as such passenger, the defendant by its servants, to-wit, one Thomas Shipley and others, whose names are to the plaintiff unknown, unlawfully, wantonly, wickedly, and in a cruel manner did assault, beat, wound, and ill treat the plaintiff to the great damage of the plaintiff, to-wit, in the sum of $300." The defendant did not enter any plea of denial or defense. The plaintiff demanded a jury, which was called, and sworn by the justice "to diligently inquire and truly ascertain the damages, if any, which the plaintiff has sustained by reason of the wrongful acts of the defendant, the Baltimore & Ohio Railroad Company, as mentioned in the said complaint, and a true verdict render according to the evidence." The case was tried, and the jury found a verdict for the plaintiff for $250, damages. The justice entered judgment for that sum, and the costs, against the defendant. On the day after the judgment was rendered the defendant filed its bond with the justice, and was allowed an appeal to the circuit court of said county. On January 21, 1886, the appeal was docketed in the circuit court, and upon the same day, upon the motion of the plaintiff, that court dismissed the appeal at the defendant's costs. It is from this action of the circuit court that the defendant obtained the present writ of error.

In 1880, the thirteenth section of article 3 of the constitution of this state was amended so as to read as follows: "In suits at common law, where the value in controversy exceeds twenty dollars, exclusive of interest and costs, the right of trial by jury, if required by either party, shall be preserved; and in such suit, before a justice, a jury may consist of six persons. No fact tried by a jury shall be otherwise re-examined in any case than according to the rules of the common law." In Barlow v. Daniels, 25 W.Va. 512, this court decided that this constitutional provision embraces and governs cases tried by a jury of six persons before a justice, and that such cases cannot be retried de novo by the circuit court. In reference to this provision the court, in the opinion delivered in that case, says: "This is a positive guarantee, an imperative command, that in all cases at common law, --that is, all cases which are not cases in equity or admiralty, according to the established practice in England at the time of our separation from her, --where the value in controversy is over $20, the trial by jury shall be preserved, and that in no such case can any party, if he requires it, be deprived, of the right of such trial. The court in which such trial is to be had is not fixed, but the right is made inviolate, and, consequently, in whatever tribunal such case may be, the right must exist in that tribunal. This sacred and absolute right cannot be taken away or impaired, either by the form of the proceeding, or by the constitution of the tribunal in which said suit may be brought. It is the right, and not the proceeding, that is guarantied by the constitution. It is, therefore, entirely immaterial whether the justices' courts in this state are courts of record or not; nor does it matter that, according to the common law, they had no civil jurisdiction, and no writ of error lay to them. The right protected is entirely distinct from the form of the proceeding in which it is asserted." 25 W.Va. 518, 519. It would seem that this decision is conclusive of the case at bar. This is certainly a common-law case, and as it is decided that in "no such case can any party, if he requires it, be deprived of the right of such trial," --that is, a trial by jury, --the plaintiff was entitled to a trial by jury in this case, and having required a jury, and had the case tried by jury, the case cannot again be tried de novo by appeal in the circuit court. But it is sought to distinguish this case from that of Barlow v. Daniels upon various grounds. It is asserted that the right of trial by jury secured by the constitution is not a right to have a jury whenever the plaintiff brings a suit at common law, but only a right to have a jury where the value in controversy exceeds $20.

It is claimed that because the defendant failed to plead or deny the plaintiff's cause of action, there was no controversy in this case; that the word "controversy" implies not only a suit, but a suit in which something is affirmed upon the one side and denied upon the other, in which there is a dispute, --an issue to be tried. If this be conceded to be the true interpretation of the word "controversy" in the constitution, then, by applying the same interpretation to the statute under which the defendant seeks to maintain its appeal in the circuit court, the right of appeal does not exist in this case. The statute declares that in all cases an appeal shall lie from the judgment of a justice to the circuit court, "when the amount in controversy on the trial before the justice exceeds fifteen dollars." Section 163, c. 50, Amend. Code, p. 416. It therefore inevitably follows that, if there was nothing in controversy on the trial before the justice, the defendant was not entitled to an appeal to the circuit court.

It is also insisted that, unless there is to be a trial before the justice, the constitution does not give the party a right to a jury. The word "trial," it is claimed, implies an issue, the decision of the issue in fact is called a trial citing Steph. Pl. 76, 77, and 3 Bl. Comm. 330. This position, as I shall endeavor to prove by the authorities, is either in evasion of the question presented in this case, or a misapprehension of the law. The claim of the plaintiff in error is that, unless there was an issue to be tried, the plaintiff, according to the rules of the common law, was in no case entitled to a trial by jury; and if a jury was called to inform the conscience of the court in such cases, as was sometimes done, the verdict was in no respect binding upon the court, and might be wholly ignored and treated as a nullity. According to the common law, when there was an interlocutory judgment, whereby the right of the plaintiff was established but the quantum of damage sustained by him was not ascertained, the plaintiff was entitled to the intervention of a jury to ascertain his damages. This is the case where the defendant suffers judgment to go against him by default, or nihil dicit, that is, where he puts in no plea at all to the plaintiff's declaration; or by non sum informatus, when the defendant's attorney declares he has no instructions to say anything in answer to the plaintiff, or in defense of his client. This is a species of judgment by default. If these, or any of them, happen in actions where the specific thing sued for is recovered, as in actions of debt for a sum certain, the judgment is absolutely complete. But where damages are to be recovered, a jury must be called in to assess them, unless the defendant, to save charges, will confess the whole damages laid in the declaration; otherwise, the entry of the judgment is "that the plaintiff ought to recover his damages, but because the court knew not what damages the said plaintiff hath sustained, therefore, the sheriff is commanded that by the oaths of twelve honest and lawful men he inquire into said damages, and return such inquisition into court." This process is called a writ of inquiry, in the execution of which the sheriff sits as judge, and tries by a jury, subject to nearly the same law and conditions as the trial by jury at nisi prius, what damages the plaintiff has really sustained; and when their verdict is given, which must assess some damages, the sheriff returns the inquisition, which is entered upon the roll in manner of a postea, and thereupon it is considered that the plaintiff do recover the exact sum of damages so assessed. 3 Bl. Comm. 397, 398; Steph. Pl. 133, 134; Tidd, Pr. 295-297; Brill v. Neele, 1 Chit. 619; 18 E. C. L. 180; 4 Minor Inst. pt. 1, (602,) 648. Some of the old English authorities seem to hold that the return of the inquest or the writ of inquiry merely informs the conscience of the court,...