Simmons v. Thomasson

• Decision Date: 01 March 1902
• Parties: SIMMONS et al. v. THOMASSON et al.
• Court: West Virginia Supreme Court

41 S.E. 335

50 W.Va. 656

SIMMONS et al. v. THOMASSON et al.

Supreme Court of Appeals of West Virginia.

March 1, 1902

Submitted January 9, 1902.

Syllabus by the Court.

1. Prohibition lies to prevent the enforcement of a judgment by default when the persons against whom the same was rendered had no notice of the time and place, and were not present at the trial.

2. When a justice, by agreement of parties, transfers a case for trial to the office of a justice of an adjoining district neither he nor his successor in office can try such case in his own district, in the absence of either the plaintiff or defendant, until he has legally reacquired jurisdiction thereof in such district by proper notice to the parties of the time and place of trial.

Error to circuit court, Roane county; Warren Miller, Judge.

Action by G. B. Simmons and another against J. B. Thomasson and another. Judgment for plaintiffs. Defendant Thomasson brings error. Affirmed.

J. G. Shilling and O. J. Chambers, for plaintiff in error.

Walter Pendleton, for defendants in error.

DENT P.

J. B Thomasson, committee of Minnie B. Simmons, complains of a judgment of the circuit court of Roane county prohibiting the collection of a certain judgment in favor of himself against G. B. Simmons and W. S. Simmons, for the sum of $200.36, with interest and costs, rendered on the 12th day of January 1901, by R. R. Petty, a justice of Curtis district, in said county. The facts are as follows: On November 6, 1900, a summons was issued by C. C. Kelley, a justice of Curtis district, at the instance of the plaintiff Thomasson, against the defendants, G. B. and W. S. Simmons, returnable at 10 o'clock a. m. November 24, 1900. The cause of action was a note for $200.36, due and payable the 10th day of November, 1890. On the return day, defendants demanded a jury. Trial was had at 1 o'clock p. m., and resulted in a hung jury. By consent and agreement of parties the case was continued to be heard before the same justice at the office of Squire Arnold, in Spencer district, at 10 o'clock a. m., the 29th day of December, 1900. The justice, having failed to appear at such hour, afterwards entered an order continuing the case, "according to law, for one week, at the same place and at the same hour." On the 1st day of January, 1901, Justice Kelley's term of office expired, and Justice Petty succeeded him as justice of Curtis district. On the 5th day of January, 1901, at his office in Curtis district, Petty entered the following order on his docket: "I was not here in attendance at the hour set for trial, and, no other justice being in attendance, the above case was continued according to law till Jan. 12, 1901, at 10 a. m." And on the 12th day of January, 1901, he entered the following judgment: "The above-styled case having been continued according to law at my office at Reedyville, W. Va., at 10 o'clock a. m., and the plaintiff, as well as his attorney, being present, and the defendants nor their attorneys appearing nor making any defense within the hour to the note in controversy, and the plaintiff, being first duly sworn, proved the note in controversy, and also made oath that the continuance at Reedyville Nov. 24, 1900, was, by mutual consent and agreement by both plaintiff and defendants, adjourned to Spencer dis., at Sq. Arnold's office, the last Saturday in Decr., 1900, and that there was no further agreement concerning the case. It is therefore considered that the plaintiff recover of the defendants the sum of $200 23/100 dollars, with legal interest thereon from the 10 day of Nov., 1890, to this date, and costs. This Jan. 12, 1901. R. R. Petty, J. P."

The only question presented here is as to whether this judgment is void for want of jurisdiction. Section 64, c. 50, Code provides that: "No action shall be discontinued on account of the absence of the justice. *** If not tried or continued by another justice as aforesaid, it shall stand adjourned for one week, and so on from week to week, until disposed of." This law only applies in absence of the justice, or agreement of the parties. In the present case, by agreement of the parties the action was taken out of the jurisdiction of the justice and the control of the law, and was therefore made subject to their further agreement. When Justice Petty came into office, he found it in this condition; and he should have required the parties to make further agreement as to the time of trial, or he should have set a day, and notified them to be present. He knew from his docket that the defendants had, and were expecting to make, a defense to the action; and it was therefore improper for him to allow the plaintiff to take advantage of their absence, when he had agreed that the case should be tried at another place and in another district. While neither agreement nor consent can give jurisdiction contrary to law, yet the parties, by consent or agreement, may oust jurisdiction, or transfer a case from one jurisdiction to another having co-ordinate powers. While a justice may not issue a summons returnable before himself outside of his district ( Stanton-Belmont Co. v. Case, 47 W.Va. 779, 35 S.E. 851), yet he may make such summons returnable before any other justice of the county having jurisdiction of the action (section 2, c. 50, Code); and if the latter justice is prevented by sickness, disability, or absence from trying the case, the former justice may attend and try it (section 15, c. 50, Code). ...