Snyder v. Harper.

• Decision Date: 26 April 1884
• Citation: 24 W.Va. 206
• Parties: Snyder v. Harper.
• Court: West Virginia Supreme Court

24 W.Va. 206

Snyder

v.Harper.

Supreme Court of Appeals of West Virginia.

Submitted September 10, 1883

Decided April 26, 1884.

After the appearance of the defendant the court should be liberal in allowing such amendments to the declaration, as tend to promote the fair trial and determination of the subject-matter of controversy, upon which the action was originally really based; but no amendment should be allowed against the protest of the defendant, which introduces into the case a new substantive cause of action different from that declared upon and different from that, which the party intended to declare upon, when he brought his action, though the amendment be such, as would in another count have been properly inserted in the original declaration, and the new cause of action was such, as could, if the plaintiff had so chosen, been united in the same suit with the original cause of action actually sued upon. (p. 211.)

Green, Judge, furnishes the following statement of the case:

On April 17, 1875, John D. Harper sued out of the clerics office of Pendleton county court a summons against Sampson Snyder, David Ilarman (of Samuel) Henry Snyder, Martin V. Bennett, Joseph Harman and Samuel Ilarman to answer the plaintiff of a plea of trespass, assault and battery, damage one thousand dollars. On the return day of said summons at the June rules the declaration was filed. It was a declaration for a trespass, assault and battery upon the plaintiff for beating, bruising, mutilating and shooting him. At the next term of the county court of Pendleton the defendants appeared and pleaded not guilty and filed two special pleas. One of these special pleas was the plea of the statute of limitations, that the plaintiff did not commence his action within one year from the time the cause of said action accrued to the plaintiff. The second special plea was the one known as the plea ot belligerent rights, "that the wrongs, injuries and acts complained of by the plaintiff were done according to the usage of civilized warfare in the prosecution of the late war between the government of the United States and a part of the people thereof." Each of these pleas concluded with a verification. At the August term, 1875, when these pleas were filed, an entry was made on the record, that the plaintiff "replied, *' but the record-book does not state, whether the replications were general or special, and no written replications appear as filed at the August term, 1875. At the November term the only entry on the record-book is, that the cause was continued on motion of the plaintiff and at his costs till the next term. At the March term of the court the plaintiff offered to file an amended declaration, to which the defendants objected, and the court overruled the objection and the amended declation was filed, and the defendants demurred to this amended declaration, which demurrer the court overruled; and the death of Samuel H. Harman one of the defendants being suggested it was ordered, that the suit be abated as to him, and the cause was continued till the next term.

This amended declaration contained two counts, one for an assault and battery by the defendants on the plaintiff, which was substantially the same as the original declaration. The second count was for another assault and battery on the plaintiff by the defendants, and also that the said defendants on the same day "took and carried and drove away certain goods and chattels, to-wit, two blind-bridles, one ridingbridle, one grey mare and one grey horse of the said plaintiff, of great value, to-wit, of the value of three hundred dollars, and converted and disposed of the same to their own use; and other wrongs then and there did to the plaintiff against the peace and dignity of the State of West Virginia to the damage of the plaintiff of one thousand dollars."

At the August term, 1876, the record states, that the defendants filed two special pleas to each of which the plaintiff replied specially. The only two special pleas, which can be referred to in this order are those which are copied into the transcript of the record before the entry of this order, and they are the pleas of the statute of limitations of five years and of belligerent rights: and the only special replications which could be referred to in this order made at the August term, 1876, are that the plaintiff could not take the test-oath, and that he was obstructed by war and insurrection in the prosecution of his action. Each of these special replications conclude with a verification; and in the last of each there is the following endorsement: "Filed November court, 1875, demurrer, &c," But this endorsement seems to have been a mistake of the clerk, for the record-book does not show that any replications or any demurrer had been filed at that term, of the court; the only entry at that time being: "On the motion and at the cost of the plaintiff this case is continued till the next term." Upon the filing of these pleas and these special replications this further entry was made: "This day came the parties by their attorneys and issues are joined, ar.d thereupon came a jury (naming them) who being elected, tried and sworn the truth to speak upon the issues joined upon their oaths do say, "we the jury find for the plaintiff and assess his damage at three hundred and fifty dollars." And thereupon the court rendered the following judgment:

"Therefore it is considered by the court, that the plaintiff recover of the defendants the sum of three hundred and fifty dollars damages with interest thereon from the 15th day of August, 1876, till payment and his costs herein expended including an attorney's fee, five dollars."

The record further states in substance, that after the plaintiff had announced to the court that he had completed his evidence, the defendants asked the court to instruct the jury that they must find for the defendants on the plea of the statute of limitations, unless they believe from the evidence that the plaintiff could not take the test-oath. The counsel for the plaintiff then stated, that he thought that the plaintiff had made and filed an affidavit to the effect that he could not take the test-oath, and this not being the case he asked the court to permit the plaintiff to file such affidavit, to which the defendant's counsel objected; but the court per-mittecd such affidavit to be then made and filed, to which action of the court the defendants excepted. The defendants obtained a writ of error and supersedeas to this judgment, and on October 15, 1879, the circuit court of Pendleton affirmed this judgment and rendered a judgment for costs in favor of the defendant in error. From this judgment of the circuit court a writ of error and supersedeas has been awarded to this Court on the petition of the defendants in the county court.

W. H. E. Flick and W. F. Dyer for plaintiffs in error. George A. Blakemore for defendant in error.

Green, Judge:

We have had great difficulty in procuring a true copy of the record upon which the circuit court of Pendleton based its judgment affirming the judgment of the county court. As we are merely supervising the judgment of the circuit court, we must act on the case as presented to that court by the record of the proceedings in the county court of Pendleton, as certified by its clerk which, I presume, had been mislaid by the clerk of the circuit court of Pendleton, as the record certified by him to this Court was, as it appeared from a return to a writ of certiorari issued by this Court, evidently made up by the clerk of the circuit court ot Pendleton from the original papers of this suit, and from the record-book of the county court, which on the abolition of the county court as a court for the trial of causes was deposited with the clerk of the circuit court of Pendleton. On discovering this we issued a certiorari to the clerk of the circuit court of Pendleton requiring him to send up the original copy of the proceedings of the county court of Pendleton in this case, as it had been certified by the clerk of the county court of Pendleton, and on which the circuit court of Pendleton acted, when it affirmed the judgment of the county court of Pendleton. In answer to this certiorari the original paper acted on by the circuit court of Pendleton has been sent up, it having, I suppose, been recently found. The statement of the case has been made up from this paper, as it exhibits the case...