Kemble et ux, v. Hebndon.

• Decision Date: 22 September 1886
• Citation: 28 W.Va. 524
• Parties: Kemble et ux, v. Hebndon.
• Court: West Virginia Supreme Court

28 W.Va. 524

Kemble et ux,

v.Hebndon.

Supreme Court of Appeals of West Virginia.

Submitted June 15, 1886.

Decided September 22, 1886.

.

1. The principles laid down in the 1st point of the syllabus in Banks

v. Rodeheaver, 26 W. Va. 274, approved and applied, (p. 532.)

2. A declaration in ejectment, the caption of which is: 'West Virginia,

Preston county, ss.," and which describes the land as situate in Preston county in King wood district and gives a description of it, which is minute and accurate, is not fatally defective, so that a demurrer to it should be sustained, because it was not stated in the body of the declaration, that Preston county was in the State of West Virginia, (p. 530.)

3. A declaration in ejectment in all other respects good should not be held insufficient on a demurrer, only because in the beginning it uses the language, that the plaintiff complains of the defendant "of apleaof trespass and ejectment for this, to-wit:" (p. 581.)

4. On a demurrer to a declaration in considering whether the declaserved on the defendant to see whether it is such as the statutelaw required, (p, 531.)

5. This Court will not reverse a case, because at some term of the

Court during the pending of the case in the circuit court it required improperly the plaintiff in error to pay the costs of a continuance, (p. 531.)

J. A. Brown and B&kshire$ Sturgiss for plaintiff in error.

No appearance tor defendant in error.

Statement ot the case by Green, Judge:

This was an action of ejectment by Catharine Carrol against William 1). ITerndon in the circuit court of Preston county. The declaration was tiled at July rules 1881, the defendant at the next term of the court on July 29, 1881 pleaded not guilty, and.issue was joined, and by consent an order ot survey was made. The next day the defendant demurred to the declaration, and the court sustained the demurrer, and the plaintiff asked leave to amend his declaration so as to conform to the opinion of the court, which amendments were with the consent of the defendant at once made by erasing certain words, and thereupon the defendant pleaded not guilty, and issue was joined. At the next term ot the court on November 28, 1881, the defendant demurred to this amended declaration, the plaintiff joined in the demurrer, and the court overruled the demurrer, and the plaintiff afterwards made some slight amendments to the declaration by leave of the court and without objections by the defendant. This amended declaration, on which the case was tried, is as follows:

"West Virginia, Preston County, ss.:

"In the Circuit Court of said County. "Catharine Carroll plaintiff, complains of William I). Hern don, defendant of a plea of trespass and ejectment, for this to wit: on the first day of January, 1879, the said plaintiff was possessed ot a certain tract or parcel of land situate in the county of Preston in Kingwood district adjoining lands of Samuel Snider and others, and is bounded and described as follows; to wit: beginning at a white oak, corner to Samuel Snider, thence with his line S. nine W. seventy-nine poles, to a stone pile, corner to Binder's land and Moore s. eighty five E. ninty poles to a black walnut, N. nine E. sixtyeight poles to a chestnut in Conrad Albright's line, and with the same, N. seventy-eight W. ninety poles to the beginning containing forty-one acres and-filty poles, which said tract of land the plaintiff claims in fee. And the said plaintiff being so possessed thereof, the said defendant, afterwards, to wit: on the first day of January, 1880, entered into the said premises and unlawfully witholds from the plaintiff the possession thereof to the plaintiff's damage $500.00: and therefore she sues. Catharine Craroll." By her Counsel.

"John Barton Payne.'*

On April 21, 1882, the following proceedings were had in this case as shown by the record:

"And at another day of said court held as aforesaid, on the 21st day of April, 1882, came the parties by their attorneys, and thereupon the defendant suggested that the plain till has, since the last term of this court, intermarried with one Julius C. Kemble, and therefore that before proceeding to trial, this suit should be revived in the name of said Kemble and wife, and the court being of that opinion, the plaintiff accordingly moved that this suit proceed in her marital name of Catharine Kemble, and that ot her husband, and no cause being shown against it, the same is ordered accordingly. And thereupon, on motion of the defendant and for reasons appearing to the court, this cause is continued till the next term. But this continuance is at the defendant's costs. And on motion of the plaintiffs an execution is awaided them for their costs of this term. Memorandum: Both the plaintiffs and defendant excepted to the opinion of the court, given upon the above mentioned proceedings, and leave is granted them to file their respective bills of exceptions herein on to-morrow.

"And at another day of said court held as aforesaid, on the 22d day of April, 1882, came the parties by their attorneys and thereupon filed their respective bills oi exceptions herein, which were received and signed by the court.

"Plaintiff's bill of exceptions above referred to is in these words:

" 'Catharine Carroll

r.V In Ejectment.

" 'Wm. I). Herndon. j

"'Be it remembered that when this ease was called lor trial, the defendant by counsel suggested that since the last term of this Court the plaintiff, who claims the land in the declaration mentioned, has intermarried with a certain Julius CKemble, and that they live tagether as man and wife, and that she acquired title if title she has, to said land, in the year 1875, which tacts were admitted to be true, and thereupon the court refused to allow the plaintiff to proceed with the trial of the case, although the plaintiff agreed that the cause might further proceed in her name, as Catharine Kemble, unless the said Julius C. Kemble should be joined with the female plaintiff, as plaintiff; and thereupon on motion of the plaintiff, and said Julius C. Kemble protesting, this cause is ordered to proceed further in the name ot Julius C. Kemble and Catharine Kemble, his wife, as plaintiffs, to which ruling of the court the plaintiff excepts, and tenders her bill of exceptions which is signed by the court and ordered to be made a part of the record.'

"The defendant's bill of exceptions, above referred to is in these words:

"

" 'Beit remembered that after the occurrence of the ruling of the court as stated in the bill of exceptions of the plaintiff, thereupon the plaintiffs asked and insisted on a trial of the cause, to which the defendant objected and asked for and claimed that he was entitled to a general continuance, but the court overruled the said objection, and required the defendant to go to trial, and thereupon, on motion of the defendant, the cause was continued at his cost on account of the absence of a material witness who had been summoned for the defendant. To which opinion and ruling of the court, the defendant by his counsel excepts and prays that these, his exceptions, may be signed, sealed and made part ot the record which is accordingly done.

William T. Ice.'

In Ejectment.

'William T. Ice. [seal].

The trial of this case before the jury was commenced on August 17, 1883, and continued from day to day till August 20, 1883, when the jury found their verdict. The following entries will show the action of the jury and court that day:

"And at another day of said court held as aforesaid, on the 20th day of August, 1883, came as well the parties by their attorneys as the jurors herein pursuant to their adjournment on Saturday last, who having fully heard the evidence herein, nay that 'they find for the plaintiffs, CatharineKemble wife of her co-plaintiff, Julius C. Kemble, the land and premises in the declaration mentioned, bounded and described as follows: Beginning at a white oak, corner to Samuel Snider, thence with his line, S. 9 W. 79 poles, to a stone pile, corner to Sniders land and Moore, S. 85 E. 90 poles, to a black walnut, N. 9 E. 68 poles, to a chestnut in Conrad Albright's line, and with the same X. 78 W. 90 poles to the beginning, containing forty one acres and fifty five poles, and we further find that the said Catharine Kemble is possessed of an estate in fee simple to said lands and premises, and we further find for the plaintiff, one cent damages/ It was therefore considered by the court that the plaintiff recover from the defendant, the possession of the premises according to the verdict of the jury aforesaid, together with her damages aforesaid, and her costs."

And on August 28, 1883, during the same term of this court this entry was made:

"At another day ot said court held as aforesaid, on the 28th day of August, 1883, came the parties by their attorneys, and the defendant having during the progress ot the trial ot this cause, excepted to certain opinions ot the court gVvew upon said tr\a\, tins, cVa\ \e\uWvec\ \\\s vuvee *e\evv\\

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susv execute before the clerk of this court a bond in the penalty of 8200.00 with good security conditioned according to law.

Memorandum: The defendant also tendered his bill of exceptions marked "No. 1," but the court refused to sign such bill upon the ground that the truth of the case was not fairly stated therein."

All of these bills ot exceptions...