Lambert v. Interurban Motor Co.

• Decision Date: 12 May 1925
• Docket Number: 5213-5215.
• Citation: 128 S.E. 81,99 W.Va. 135
• Parties: LAMBERT v. INTERURBAN MOTOR CO. (THREE CASES).
• Court: West Virginia Supreme Court

128 S.E. 81

99 W.Va. 135

LAMBERT v. INTERURBAN MOTOR CO. (THREE CASES).

Nos. 5213-5215.

Supreme Court of Appeals of West Virginia.

May 12, 1925

Submitted May 5, 1925.

Rehearing Denied June 10, 1925.

Syllabus by the Court.

The prohibition of the statute as to the trial of a civil case in the circuit court on appeal from a justice within three months from the time the transcript and papers are filed with the clerk of the circuit court applies only to a trial had on motion of the appellant. The purpose of this provision is to protect the appellee in such case from surprise. However, the appellee, upon appearance on the day that such case is set for trial on the trial docket under the rules of the circuit court, is entitled to a trial of said case.

Under section 169, chapter 50, Code, which provides upon appeal of a civil action to the circuit court from a judgment of a justice that, if the sum in controversy exceed $20 and "if either party require it," a jury shall be impaneled to try the case in like manner as other juries are selected and impaneled in said court, a party to said suit who fails to make any demand for a jury in the circuit court cannot be heard to object in the appellate court that the case was tried without a jury.

Error to Circuit Court, Cabell County.

Three separate actions by J. G. Lambert against the Interurban Motor Company. From a judgment by a justice of the peace in each action for plaintiff, defendant appealed to the circuit court, and after its judgment in each case for plaintiff, and overruling motion for new trial in each case, defendant brings error. Affirmed.

George S. Wallace, of Huntington, for plaintiff in error.

WOODS J.

In three separate actions before a justice, each for the recovery of rent, judgments were entered for the plaintiff J. G. Lambert, on March 31, 1924, May 2, 1924, and May 28 1924, respectively. The defendant, Interurban Motor Company appeared in each of said actions and made defense thereto, and following each judgment against it gave an appeal bond. The transcripts of said judgments were severally filed with the clerk of the circuit court; the third being filed with said clerk on June 2, 1924. The circuit court convened on June 9, 1924, and these three cases placed on the trial docket for June 13, 1924. Lambert, the appellee, appeared in person, with his attorney, waived a jury, and submitted the cases to the court in lieu thereof, and on due proof judgments were entered against the appellant, Interurban Motor Company, in the sums of $273.67 and costs, $160 and costs, and $150 and costs, respectively. On June 14th the Interurban Motor Company, by attorney, appeared and moved the court to set aside the orders and judgments entered on the 13th instant, and grant it a new trial in each of said cases. This motion the court overruled, and the Interurban Motor Company comes here on writ of error.

The plaintiff in error contends (1) that section 169, chapter 50, Code, forbids a hearing in the circuit court in less than three months from the time the transcript and papers are filed with the clerk, unless appellee has been served with notice thereof as required by statute; and (2) that, since defendant (plaintiff in error here) appeared in each of the cases before the justice, and issue was joined and judgment rendered, and an appeal taken, the circuit court could not render a judgment, unless a jury had been waived, and that there never was such a waiver on the part of the defendant, and that it was not in court at the time of said hearing.

The first point is without merit. Section 169 of chapter 50, Code, was enacted for the sole purpose of protecting the appellee in any such case from being surprised, and does not forbid a hearing if the appellee, without the statutory notice required, sees fit to make an appearance on the day the case is duly set for hearing on the circuit court docket. The statute in no manner aids the appellant except, if he so desires, he may hasten a hearing by giving the proper ten days notice required therein.

The second point, as we have stated, goes to the action of the court in trying the case in lieu of a jury. A proper consideration of this question makes it necessary to advert to the status of the justice of the peace in our judicial procedure. Though the office of justice of the peace dates from a remote period of the history of the English law, a justice possesses no common-law jurisdiction for the trial of causes. The only powers which he can exercise are those conferred upon him by the Constitution and statute of his state. His court is one of special and limited jurisdiction, and none exists except where it is distinctly and expressly conferred. The powers and authority of a justice in our state are derived from the Constitution and the Code of the state and the acts passed since the adoption of the Code. If the jurisdiction sought to be exercised is not attributable to one of these sources, none exists. "Matters of mere form are dispensed with, and the same technicality is not required as in suits in a court of record. The real object being to obtain substantial justice, great liberality is indulged with respect to these proceedings." 35 C.J. 552. Section 49, chapter 50, Code, provides that there shall be but one form of action which shall be denominated a civil action. And each action is a special action on the particular case, and the complaint must state in a plain and direct manner the facts constituting the cause of action. O'Connor v. Dils, 43 W.Va. 54, 26 S.E. 354. On appeal to the circuit court, it is the duty of said court to try the case de novo, upon the pleadings made up in the justice's court, or to permit the pleading to be amended before or during trial of appeal when substantial justice will be promoted by such amendment. Article 8, section 28, of the state Constitution, contains this clause:

"Appeals shall be allowed from judgments of justices of the peace in such manner as may be prescribed by law."

Chapter 50, sections 164 to 169, Code, provides the mode of appeal in civil actions, such as we have here. The last section relates to the procedure on the appeal in the circuit court. It contains this express provision:

"If the sum in controversy exceed twenty dollars and either party so require, a jury * * * shall be selected and empaneled to try the cause in like manner as other juries are selected and empaneled in said court."

This statute conforms to our constitutional requirement of right to jury trial in civil cases. Article 3, § 13, Const....