Hinton v. Lewis Ballard.

• Court: West Virginia Supreme Court
• Writing for the Court: MAXWELL, J.
• Citation: Hinton v. Lewis Ballard., 3 W.Va. 582 (W. Va. 1869)
• Decision Date: 31 August 1869
• Parties: William Hinton, adm'r, v. Lewis Ballard.

3 W.Va. 582

William Hinton, adm'r,

v.Lewis Ballard.

Supreme Court of Appeals of West Virginia.

August Term, 1869.

1. A defendant can only take advantage of a defective return on a summons by a plea in abatement,

2. A plea in abatement not being an issuable plea, cannot be filed to set aside an office judgment, and must be filed at rules, before office judgment is entered, except where the cause making the filing of a plea in abatement necessary occurs after the office judgment is entered at rules; in which case it may be filed at the first opportunity afterwards.

.'i. Where a plea in abatement has been rejected, and the defendant then asks leave to demur to the declaration, and is refused, and on a subsequent day of the same term the order refusing leave to demur is set aside, and leave to demur is given, but the defendant declines to do so, the error in refusing the leave to demur is cured.

The action was trespass for " unlawfully seizing, taking and carrying away certain property of the plaintiff," by the defendant's decedent, Wilson Lively.

The writ was issued on the 10th of January, 1866, and was made returnable to February rules, when the declaration was filed, and common order taken; aud the common order was confirmed at March rules, and a writ of enquiry awarded. This was all done upon an insufficient return of the officer upon the writ.

At a special term of the court held on the 27th day of July, 1866, the officer, upon the plaintiff's motion, had leave to amend his return upon the writ, which amendment was made in open court. On the 10th of August, the officer, upon his own motion, had leave further to amend his return, which amendment was made in open court. Thereupon the defendant offered to introduce evidence to disprove the truth of the last amended return in two particulars: first, to show that the summons was not left at the de fendant's usual place of abode; and second, that it was not explained to the person to whom the process was delivered. The court overruled the motion.

The defendant then moved the court to remand the cause to rules, because it appeared that from the returns and amended returns the cause had been improperly placed on the court docket; which motion the court overruled. The defendant then amended his motion to remand the cause to rules in general terms. This motion was also overruled.

The defendant then ottered a plea in abatement, duly sworn to, because of a departure in the declaration from the writ. This plea was rejected.

The defendant then asked leave to demur to the plaintiff's declaration; which permission was refused, and the defendant excepted.

The defendant then offered a second plea, in abatement, and it was rejected. The plea was because of another action pending for the same cause. The defendant pleaded not guilty, and not guilty in one year, and issues were joined. These latter proceedings occurred on the 11th of August, aud the cause was continued until the next term.

On the 13th of August, an offer was made to the defendant's counsel to set aside the order refusing permission to demur to the declaration, with leave to demur; but the counsel declined to avail himself of the offer.

On the 29th day of September (the regular term), the defendant tendered another plea in bar, justifying the trespass, under a military order, and involving distinctly the question of "belligerent rights." But the court rejected the plea, and the defendant excepted. The cause was thereupon continued.

At the November term a jury was sworn, but failed to find a verdict.

At the April term, 1867, another jury was sworn, and found a verdict for 1, 167 dollars, with interest from the 7th of April, 1863. But, upon a suggestion of the court, they added the interest, amounting to 280 dollars, to the damage, making 1, 447 dollars of damages to draw interest from the date of the judgmeut. After the verdict had been modified, a motion for a new trial was made, because of this error in the verdict; which the court overruled, and the defendant excepted.

During the progress of the trial, and before the jury retired from the court, the defendant asked the court for various instructions, none of which were given except the fifth; the other five were either refused or modified, and the defendant excepted.

There were several errors alleged in the petition to this court pertaining to instructions asked by the defendant below, on the question of belligerent rights, but they were not considered here.

The defendant brought the case here on a writ of supersedeas.

Lamb PtaiU for the plaintiff in error. Stanton Allison for the defendant in error.

Maxwell, J. The first ground of error assigned is because the court refused to remand the cause to rules when the return on the writ was amended.

The officer who served the summons in this case made a defective return on which an office judgment was taken at rules. At the next term of the court, on motion of the plaintiff, leave was granted the officer to correct his return.

The officer accordingly corrected his return, but it still was defective. The case was then continued until the next term of. the court. At the then next term of the court the officer appeared in court, and on his own motion, had leave to further amend his return, which he then did. The defendant then moved the court for permission to introduce evidence for the purpose of showing that the said return as amended was false in two particulars, which motion the court overruled. The return...