State ex rel. Reece v. Gies

• Decision Date: 05 June 1973
• Docket Number: No. 13332,13332
• Citation: 156 W.Va. 729,198 S.E.2d 211
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Charles REECE and Sally Reece, his wife v. Joe GIES, Justice of the Peace, etc., and Charleston Housing Authority.

Page 211

198 S.E.2d 211

156 W.Va. 729

STATE ex rel. Charles REECE and Sally Reece, his wife v. Joe GIES, Justice of the Peace, etc., and Charleston Housing Authority.

No. 13332.

Supreme Court of Appeals of West Virginia.

Submitted May 1, 1973.

Decided June 5, 1973.

Syllabus by the Court

1. The lack of professional legal training of a duly elected justice of the

peace does not render a judgment entered by him in a case over which he has jurisdiction under the Constitution and statutes of this State violative of the due process clauses of the Federal and State Constitutions.

2. In an unlawful entry and detainer action, a statute may properly require a tenant to post an adequate bond before an appeal will be granted to cover the judgment appealed from, as well as the accrual of rent during, the pendency of the appeal.

3. The requirements contained in Code, 50--15--2, for the giving of a bond in an amount double that of the judgment rendered against the tenant for damages and an amount sufficient to cover one year's rent bear a reasonable relation to the amount that may be subject to be recovered under the bond if the landlord prevails on appeal, and would not be a denial of the due process or equal protection clauses of the Federal and State Constitutions.

4. 'Where a justice of the peace has any pecuniary interest in any case to be tried by him, however remote, he is disqualified from trying such case.' Point 1, syllabus, Osborne v. Chinn, 146 W.Va. 610 (121 S.E.2d 610).

5. Where a justice of the peace gets an initial fee of $5 in a civil case which is to be paid by the plaintiff, and, if the justice of the peace finds in favor of the plaintiff he is entitled to an additional fee of $2.50 for issuing an execution on the judgment in order to satisfy the judgment for the plaintiff, the justice of the peace has a financial interest in finding a judgment for the plaintiff and such pecuniary interest violates the due process clauses of the Federal and State Constitutions.

George R. Higinbotham, Charleston, for relators.

No appearance by respondents.

BERRY, President:

The relators, Charles and Sally Reece, filed a petition with exhibits attached thereto for a writ of prohibition in this Court on February 6, 1973 praying that the respondents, Joe Gies, Justice of the Peace, District II, Kanawha County, and the Charleston Housing Authority, be prohibited from proceeding to evict the relators from their home pursuant to a judgment for unlawful entry and detainer. A rule was issued February 19, 1973 returnable May 1, 1973 at which time the case was submitted for decision. The respondents did not file an answer and respondent Joe Gies did not appear on May 1 during the oral argument. Briefs were submitted by the relators and the Attorney General of West Virginia, who appeared on behalf of the respondents, citing Code, 55--13--11, as amended, as authority therefor, without objection by the relators.

The relators were residents or Orchard Manor which is a federally funded low income housing project in Charleston, West Virginia. The relators occupied a four bedroom apartment at a monthly rental of $86. On December 19, 1972 the relators received written notification from the Charleston Housing Authority that as a result of their chronic non-payment of rent and the fact that the relators were keeping pets in their apartment in violation of their lease, the Housing Authority would be forced to sue for possession of the relators' apartment.

On January 9, 1973 the respondent Charleston Housing Authority filed an unlawful entry and detainer complaint with the respondent Joe Gies, Justice of the Peace. At the subsequent trial before the justice of the peace, judgment in the amount of $300 was awarded to the Charleston Housing Authority.

The relators timely filed a motion to appeal and sought to proceed in forma pauperis because the relators were unable to post the bond required by Code, 50--15--2, which requires that bond be posted in an amount double that of the judgment ($600) plus one year's rent ($1,032) or a bond in the total amount of $1632. As a result of their failure to post bond, the justice of the peace refused to allow the relators to file their appeal.

The relators contend that the justice of the peace system in West Virginia has inherent deficiencies which have the effect of preventing a fair and impartial trial. They contend that the respondent Gies was a layman and had no formal legal training and hence was unable to understand the legal argument of their counsel. The relators contend that they, as indigents, were denied due process of law and equal protection of the law by the provision of Code, 50--15--2, which requires that they post an appeal bond in an amount double that of the amount of the judgment against them and an amount sufficient to cover one year's rent of premises.

The relators also contend that the justice of the peace had a financial interest in the outcome of the case in that the justice would be entitled to a fee of $2.50 for his services in connection with an execution on a judgment, and he would also be entitled to $.35 for mailing each suggestee execution by registered and/or certified mail.

No answer was filed on behalf of the respondent and the attorney general appeared and filed a brief citing as authority therefor the provisions of Code, 55--13--11, as amended, without objection by the relators, although the authority cited by the attorney general for such action would not appear to be applicable to the instant case.

The grounds upon which the relators rely for awarding of the writ of prohibition are: (1) That the summons served upon the relators violated due process of law in that it did not sufficiently apprise them of the underlying claim; (2) that the justice of the peace who tried the case is a layman not trained in the law and therefore was unable to understand the legal argument of counsel for the relators, thus preventing a fair and impartial trial; (3) that the relators as indigents were denied due process and equal protection of the law by the provision of Code, 50--15--2, requiring that an appeal bond be posted in an amount double that of the judgment against them and an amount sufficient to cover one year's rent of the premises before an appeal can be granted; and, (4) that the justice of the peace had a financial interest in the outcome of the case in that he was entitled to a fee of $2.50 for the issuance of an execution on a judgment rendered in favor of the plaintiff respondent and was also entitled to an additional $.35 for mailing the suggestee execution by registered or certified mail.

There is no merit in the first contention of the relators that the summons did not sufficiently apprise them of the claim. The summons, a copy of which was attached to the relator's petition as an exhibit, informs the relators that the action by the respondent Housing Authority was for the unlawful withholding of the premises which were specifically described in detail, and therefore fulfills all requirements of due process of law in this instance.

The second contention that the relators were denied due process of law because the justice of the peace had no formal legal training and was unable to understand the legal arguments of counsel for the relators is not well taken. It has been specifically held by this Court that this contention is without merit because of the constitutional provisions for such courts under the provisions of Article VIII of the Constitution of West Virginia. State ex rel. Moats v. Janco, W.Va., 180 S.E.2d 74.

It was held in the Moats case that:

'The Constitution prescribe no qualification for a justice of the peace except the requirement of Article VIII, Section 27, that he must reside in the district for which he was elected and the requirement of Article IV, Section 4, that he be a citizen entitled to vote; and there are no additional qualifications prescribed for a justice of the peace such as legal training or the status of a duly licensed attorney at law as contended by the petitioner.

'In view of the foregoing this Court holds that a duly elected justice of the peace who resides in the district for which he was elected is authorized and empowered to exercise within the county in which such district is located the jurisdiction conferred upon him by the Constitution and the statutes of this State; and his lack of professional legal training and his liability to attain the status of a duly licensed attorney at law do not of themselves render his judgment of conviction of a defendant of a criminal offense of which the justice has jurisdiction violative of the due process clauses of the Federal and State Constitutions.'

These statements are equally applicable in civil cases where a justice of the peace is given jurisdiction by statute, in accordance with Article VIII, Section 28 of the Constitution of West Virginia. Code, 50--2--1(b) gives a justice of the peace civil jurisdiction 'Of actions of unlawful entry or detainer of real estate situated within his county as provided in article eleven (50--11--1 et seq.) of this chapter;'.

The third contention of the relators is that they are indigents and that by virtue thereof were denied due process and equal protection of law by the provision of Code, 50--15--2 requiring them to post an appeal bond in an amount double that of the judgment against them and an amount sufficient to cover one year's rent of the premises.

The Supreme Court of the United States has held that due process does not require a state to provide an appellate system. McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 39 L.Ed. 876; Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d 36; Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572. It was held in the Ortwein case the a statute requiring a filing fee to be paid by indigents seeking to appeal an adverse welfare decision did not violate the due...