SIMPKINS v. WHITE et al.
| Decision Date | 17 March 1897 |
| Court | West Virginia Supreme Court |
| Parties | SIMPKINS v. WHITE et al. |
unlawful DrtAINEK Summons Justice of the Peace.
Summons in unlawful detainer before a justice, held good. r 52 93
Unlawful Detainer Description of Premises. (
Description ol' premises in unlawful detainer, held good. j 59 ggf
(p. 127.)
U n la wful D eta I n e r Summon s Des eription of Pre nlises.
Description of premises in summons in unlawful detainer before a justice shall describe the premises with convenient certainty, so as to enable the sheriff tc deliver possession; but that description need not be so certain as in itself and alone to enable him to do so, as he may deliver as the plaintiff, or information from other sources, may direct, so he do not violate the description in the summons. If that description can be rendered certain by extrinsic evidence, it is sufficient, (p. 128.)
Stare Decisis.
Doctrine of stare decisis discussed, (p. 129.)
5. Unlawful Detainee Pleading Verdict.
In unlawful detainer before a justice, or on its appeal, a verdict, on full trial on the merits, will not be set aside because there was no plea and issue. The statute puts in the plea of not guilty, (p. 130.)
6. Verdict Without Issue.
The rule that a verdict without issue is bad, questioned by Braxxox, Judoe. (p. 129.)
Error to Circuit Court, Logan county.
(John Caudle. Judgment for plaintiffs and defendants bring error.
A firmed.
H. K. Shumate and Brown, Jackson & Knight for plaintiffs in error.
Campbell, Holt and Campbell, for defendant in error.
This was an action of unlawful detainer begun before a justice, and appealed to the Circuit Court, ending in a judgment for Simpkins against White and Caudle. One question is whether the summons was good against the motion to quash it. The defect is alleged to be in its omission of the words "unlawfully withholding." Code, 1891, c. 50, s. 212, says that the summons shall require the defendant "to answer the action of the plaintiff for unlawfully withholding from the plaintiff the premises." The present summons requires the defendants "to answer the complaint of.Joseph Simpkins in a civil action for the recovery of the possession of real estate situated," etc., and states that "the plaintiff will also claim one hundred dollars damages for the unlawful detention of said property." Even if we did not have the clause in section 26, chapter 50, that "no summons shall be quashed or set aside for any defect therein, if it be sufficient on its face to show what is intended thereby," 1 should have no halt in saying that this summons notifies the defendants that they are both charged with unlawfully withholding the premises. If not, why does it say that its object is recovery of possession? To recover by action is to obtain what is detained unlawfully, that is, against the right of the party; to obtain what he has not, and the other party has; and, when the summons says it is to recover possession, it Fairly means to get actual possession from a defendant having it. But this is not all. It says damages will he claimed "for the unlawful detention of said property." Its plain meaning is that both defendants unlawfully withheld possession. No other construction would he anything hut very technical. After writing the above, I find the case of Postlewait v. Wise, 17 W. Va. 1, holding good a declaration in ejectment omitting the allegation that the defendant unlawfully withholds from the plaintiff the possession of the premises, though, as here, the statute says it shall so aver. It pointedly meets this objection.
Another alleged defect is that the summons does not sufficiently describe the premises in saying that it is "real estate situated in Logan county, and founded and designated as 10-acre lot lying near Beech creek bridge, bounded by Beech creek and Beech creak switch and land of P. A. Steel, it being the same property upon which the said Caudle now resides." This is relied on in the assignment of error, but is not insisted upon in the brief. It is an untenable objection. If is as certain a description as is practicable, unless every line be given. The sheriff could give possession of it. Mere we have general and particular calls. We are directed to the neighborhood, and when there we have signs by which to find the particular land, because we have creek and adjoining land and quantity given, and are told who lives upon the land. It would have been good as an entry of waste land in times gone1 by. McNecl w Her old, 11 Graf. 314. loss certainty is required in a grant, as Judge Lea there says, than in an entry. A declaration in ejectment or a summons in unlawful detainer need not contain more certainty of description than a deed conveying land. On first thought, we are inclined to say that such declaration must contain a description which will enable the she 'ill, from that description alone1, without other aid, to deliver possession to the plaintiff; but that is incorrect, as he can get information from the plaintiff or elsewhere to guide him, as Judge Haymond shows in Hoard of Ed. v. Crawford, \A W. Va. 797. It seems he is to deliver as the plaintiff directs (Herm. Ex'ns, § 351; Freem. Ex'ns, §472), unless it would violate or exceed the plain description contained in the execution, and to follow the plaintiff's direction would be manifestly wrong. He surely may take means to glean information to enable him to apply the language of the writ of possession to the subject-matter, the land. He must not contravene his warrant, however, but lie can resort to extraneous aids. The law of description in deeds is that of reasonable certainty only; Jones, Real Prop. §828; Thorn v. Phares, 85 W. Ya. 771 (If S. E. 899). Let us have as much certainty in the declaration as convenient, as it is all the better; but where there is not the highest degree, or even a high degree of certainty, let us not overthrow it by too rigid a requirement, which is not exacted by the law. I think a misunderstanding prevails considerably in this matter. Carter v. Railway Co., 26 W. Ya. 614, will sustain this view, and the'present summons is more certain than the declaration in that case. In support I refer to the opinion in Board of Ed. v. Cratqford, 14 W. Ya. 790, and Tyler, Ej. 898. That case liberalized on this matter, and since then the above-quoted clause has been put in the statute. See opinion Pontic wait v. Wise, 17 W. Ya. 10.
Another point made againat the judgment is...
To continue reading
Request your trial