Richmond v. Henderson
| Decision Date | 08 December 1900 |
| Citation | 37 S.E. 653,48 W.Va. 389 |
| Parties | RICHMOND v. HENDERSON. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. Where a summons of a justice in a civil action for the recovery of money for the breach of contract demands judgment for $300, though the plaintiff files two bills of particulars on different causes of action, aggregating more than $300 this is not cause for dismissing the action before trial, for want of jurisdiction.
2. The amount of recovery in a civil action before a justice demanded by the summons is the test of the amount in controversy, on the question of jurisdiction.
3. Where a justice has no jurisdiction of a civil action neither has a circuit court on appeal, though such circuit court would have original jurisdiction in the case, and therefore such court must dismiss the action for want of jurisdiction.
4. One having claim under contract for more than $300 may, to get jurisdiction before a justice, release part of it and recover a less sum, but cannot split one demand into several actions.
5. An appeal lies from the judgment of a justice rendered upon the verdict of a jury, just as in cases tried by him without a jury, and the writ of certiorari does not lie in such case. The cases of Barlow v. Daniels, 25 W.Va. 512; Hickman v. Railroad Co., 30 W.Va. 296, 4 S.E. 654, 7 S.E. 455; Vandervort v. Fouse, 30 W.Va. 326, 4 S.E 660; and Fouse v. Vandervort, 30 W.Va. 327, 4 S.E 298,--so far as they hold to the contrary, are overruled.
Error to circuit court, Tyler county; G. W. Farr, Judge.
Action by Silas Richmond against D. J. Henderson before a justice. On certiorari the circuit court reversed a judgment for plaintiff, and he brings error. Reversed.
G. D. Smith and I. M. Underwood, for plaintiff in error.
James H. Strickling, for defendant in error.
Silas Richmond brought a civil action against D. J. Henderson before a justice of Tyler county, which was tried by a jury, which rendered a verdict for the plaintiff for $275, upon which verdict the justice entered judgment, and then Henderson obtained from the judge of the circuit court a writ of certiorari. Upon said writ of certiorari the circuit court reversed the justice's judgment, set aside the verdict of the jury, and granted a new trial; and afterwards the said circuit court wholly dismissed the action brought by Richmond before the justice, and to this judgment of dismissal Richmond took a writ of error to this court.
The first question that occurs is, did the circuit court err in dismissing the action brought before the justice? The only ground upon which this dismissal is sought to be vindicated is this: The justice's summons was "for the recovery of damages for the breach of a written contract between said Henderson and said Richmond on the ___ day of October, 1898 for rent of said Henderson's farm in Tyler county for five years, in which the plaintiff will demand judgment for three hundred dollars, with interest and costs according to law"; and Richmond filed a bill of particulars against Henderson for $300. Afterwards he filed before the justice what is called an "amended complaint," which is simply and only a bill of particulars of items of charge against Henderson, aggregating $300. These two bills of particulars together aggregate $600, and it is claimed that by filing this amended bill of particulars Richmond made his action exceed the constitutional jurisdiction of a justice, of $300, and thereby ousted the jurisdiction of a justice, and that, as the justice lost jurisdiction, so the circuit court could entertain the case no longer, on the principle that, if the court in which an action is brought has no jurisdiction of the amount in controversy, the court to which it is taken by appeal is without jurisdiction for a new trial on the merits, though it might have taken jurisdiction in an original action, and that this rule goes so far that if, after the case goes to an appellate court, an amendment to the complaint is made, so as to increase the amount in controversy to a sum in excess of the jurisdiction of the appellate court is ousted, and the case must be dismissed. No doubt, this is good law, where it applies. Works, Courts & Jur. 67, 102; Todd v. Gates, 20 W.Va. 464. From the confused and uncertain record in this case, I gather that Richmond brought a suit on the idea of recovering damages for breach of the written contract of lease, and he filed for specification a claim for $300 damages, on the same idea of breach of contract. That specification reads, This is a repetition of the language of the summons. Then Richmond shifted his basis of recovery to that of charges for building houses and other things, furnishing material for the same, and labor performed on the leased premises; still claiming, however, for such charges the theory of a breach of the lease by Henderson, inasmuch as Henderson did not comply with the engagement which he made by the lease, to have Richmond do certain work, by failing to point out the work and agree upon the price, whereby Richmond could not do more work, abandoned the premises of Henderson, and charged for what he had done. This charge bears some relation to that contract of lease. Now, I do not understand this to be an addition to the demand, so as to oust the justice's jurisdiction. It is well settled in formal actions in courts of record that a declaration may contain different counts on different causes of action (different counts really on the same cause of action), which aggregate more than the sum named in the original summons, or the ad damnum clause of the declaration, and yet that fact of excess does not deprive the court of jurisdiction. Works, Courts & Jur. 59. Why may not a suitor in a justice's court, as well as in a circuit court, vary the character of his claim so as to meet the proof, to meet different theories of recovery? I regard these two specifications like different counts in a declaration, but the recovery on either account, on any theory of recovery, must not exceed the sum demanded in the justice's summons. We must remember, in dealing with this question, that, "in determining the question of jurisdiction before a justice for a wrong, the amount claimed in the summons, not the damage shown by the testimony, must control." Stewart v. Railroad Co., 33 W.Va. 88, 10 S.E. 26. I understand that in justices' courts, for any cause of action, whether on contract or for a wrong, the amount claimed in the summons controls, when the question is whether the amount of jurisdiction is exceeded. Todd v. Gates, 20 W.Va. 464. Therefore, let the bills of particulars be for different amounts or for different causes, though added they would exceed the amount claimed in the summons, yet, so the recovery is not beyond the amount specified in the summons, it is legitimate procedure. There is no want of jurisdiction. In this case Henderson's objection is, rather, that Richmond by two bills of particulars shifted his base for recovery, on the theory that his first claim was for breach of the written contract, while his second bill of particulars was for different things; that is, for building houses, furnishing materials, work, etc. This is, rather, an objection based on the idea of a departure in pleading,--an amendment of the declaration, introducing new and distinct matter. Now, that would not oust jurisdiction. If the objection was that the second bill of particulars introduced matter not germane to the original bill of particulars, that subject could be regulated at the trial, because the plaintiff might be compelled, in a proper case, to elect upon which bill of particulars he would proceed. This should be done, rather than throw his action out of court on the theory of want of jurisdiction. But I hold that in justices' courts even that can be rarely done, and would not have been proper in this case. Why? Because, under principles held in O'Connor v. Dils, 43 W.Va. 54, 26 S.E. 354, great liberality prevails in actions before justices under this head, as well as under other heads. That case holds that the words "damages for a wrong," found in the summons issued by a justice, are equivalent to, or, rather, include and cover, the words "money due on contract," also found in a summons issued by a justice. The Code says a summons issued by a justice shall state that the demand is for the recovery of money "due on contract (or for damages for a wrong, as the case may be) in which the plaintiff will claim judgment for $___." This would seem to indicate a separation between actions ex contract and actions ex delicto, as distinguished by the common law, and to preclude proof of any cause of action arising out of contract where the summons is for recovery for a wrong, and vice versa; but the case cited holds the reverse, and from it, though the summons be for damages for a wrong, yet proof may be given of a cause of action arising out of contract. The opinions of Judges Dent and Holt in that case will show that there is but one form of action in justices' courts, and that the common-law forms of action do not prevail there, and that the distinction between actions for tort and contract is abolished in those courts, and that the summons has for its office to bring the parties before the court to answer an action for a claim not exceeding a given sum, and that any evidence establishing a legal cause of action may be given, but the recovery shall not exceed the sum of constitutional jurisdiction. It follows from this that even if Richmond's first claim is on a theory of...
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