Mountain City Mill Co. v. Southern
| Decision Date | 11 November 1899 |
| Parties | MOUNTAIN CITY MILL CO. v. SOUTHERN. |
| Court | West Virginia Supreme Court |
Submitted June 10, 1899
Syllabus by the Court.
1. The pleadings in justices' courts are prescribed by statute and no provision is made for pleas in abatement. Such plea therefore, to the jurisdiction of the justice, cannot be properly filed, either before the justice, or the circuit court to which the action may be appealed.
2. As a substitute for such pleas, section 66, c. 50, Code, provides that "the action shall be dismissed at plaintiff's cost whenever it appears that it has been brought in the wrong county, or that for any other reason the justice has not jurisdiction thereof."
3. In an action before a justice, founded upon an account, note, or other writing for the payment of money, it shall be a sufficient complaint for the plaintiff to deliver the account, note, or other writing to the justice, and to state that there is due to him thereon from the defendant a specific sum, which he claims to recover in the action.
Error to circuit court, Marion county; John W. Mason, Special Judge.
Action by the Mountain City Mill Company against G. C. Southern. Judgment for plaintiff was affirmed by the circuit court, and he brings error. Affirmed.
Marcellus M. Thompson and E. G. Smith, for plaintiff in error.
W. S Haymond and B. L. Butcher, for defendant in error.
On March 20, 1897, the Mountain City Mill Company, a corporation, by its attorney, filed before L. G. Bennington a justice of Marion County, its complaint, and a demand for $194.70, against G. C. Southern, upon which day the justice issued his summons, returnable on the 27th day of the same month, on which last-named day the parties appeared by their attorneys, and the defendant also in person. Plaintiff filed its account, showing a balance due it from the defendant of $188.24, to which the defendant entered the plea that he did not owe the debt, and asked leave to file special pleas. The defendant was then sworn, and stated that he had a just defense to the action, and applied for a continuance, and the same was granted to April 3d, and, by agreement of counsel, to the hour of 1 o'clock p. m. of that day; and on the said 3d day of April the defendant, by his attorney, tendered a special plea to the jurisdiction of the court, to the filing of which plaintiff objected; but the justice overruled the objection, and filed the plea, on which plea plaintiff joined issue. The case was further continued to April 12th by agreement of parties, on which day the justice, having heard the evidence, rendered judgment for plaintiff for $188.77 and costs, from which judgment defendant appealed to the circuit court of said county. On the 16th day of December, 1897, the parties appeared by their attorneys in the circuit court, when the defendant tendered a special plea in writing to the jurisdiction of the court, to the filing of which plaintiff objected, which objection was sustained, and the plea rejected, to which ruling of the court the defendant excepted. And the plaintiff moved the court to strike out of the record the special plea in writing to the jurisdiction of the court filed before the justice on the 3d of April, which motion was resisted by defendant, but was sustained by the court, and the plea was stricken out; to which action of the court the defendant excepted, and tendered his bill of exceptions, which was signed by the judge, and made part of the record. On the 9th day of March, 1898, a jury was duly impaneled and sworn in the case, and, having heard the evidence and arguments of counsel, on the 10th day of March returned a verdict for the plaintiff, and assessed its damages at $188.24; when the defendant moved the court to set aside the verdict, and grant him a new trial of the case, on the ground that the verdict was contrary to the law and the evidence; and the court, having taken said motion under consideration, as well as the additional ground assigned by the defendant, that the court had erred in permitting improper evidence to go to the jury offered by the plaintiff and objected to by the defendant, overruled said motion, and rendered judgment on said verdict; to which rulings of the court the defendant excepted, and tendered his bill of exceptions, which included also all of the evidence in the case, which was signed and made part of the record. Defendant obtained from this court a writ of error and supersedeas, assigning the following errors: First. It is error not to dismiss said action for want of jurisdiction upon the special plea filed in writing by the defendant before said justice. Second. It was error not to permit the special plea in writing tendered by the defendant in the circuit court of said county to be filed. Third. It was error to strike out of the record said special plea filed before the justice as aforesaid. Fourth. It was error to overrule defendant's exceptions to plaintiff's testimony introduced before the jury at the hearing at said circuit court. Fifth. It was error not to sustain defendant's motion to set aside the verdict of the jury and grant a new trial on the grounds assigned in said motion.
The first three assignments raise substantially the same questions,--whether a plea to the jurisdiction, in the nature of a plea in abatement, can be filed before a justice; and whether, on appeal to the circuit court, such plea could be filed. The pleadings in justice's court are prescribed by statute, which provides that In Todd v. Gates, 20 W.Va. 464 Judge Snyder, in delivering the opinion of the court, says (page 470): And in point 4 of the syllabus in said case it is held that And section 66, c. 50, Code, contains substantially the same provision as that in section 49, Acts 1872-73, referred to above. The defendant's plea to the jurisdiction, as in the case just cited, "was entirely unnecessary and improper in the case, and was properly rejected," and, this being so, it was proper to...
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