State ex rel. Shawver v. Casto

• Decision Date: 29 January 1952
• Docket Number: No. 10448,10448
• Citation: 136 W.Va. 797,68 S.E.2d 673
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. SHAWVER et al. v. CASTO et al.

Page 673

68 S.E.2d 673

136 W.Va. 797

STATE ex rel. SHAWVER et al. v. CASTO et al.

No. 10448.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 9, 1952.

Decided Jan. 29, 1952.

Syllabus by the Court.

1. 'In a civil action before a justice the amount named in the summons determines jurisdiction. If plaintiff's claim exceeds three hundred dollars, he may release all above that sum and sue for the remainder, but he can not divide his claim and bring separate suits.' Pt. 1, Syl., Mitchell v. Davis, 73 W.Va. 352 .

2. A creditor having a debt in excess of three hundred dollars may remit such excess, the principal and interest on the same, in accordance with Code, 50-2-7. The method prescribed by such statute is exclusive and must be followed in order to confer jurisdiction on a justice.

3. Jurisdiction of the subject matter of litigation, which a court otherwise does not have, may not be conferred by consent of any or all of the parties.

J. Raymond Gordon, Charleston, for relators.

Lee M. Kenna, Charleston, for respondents.

LOVINS, Judge.

This court awarded Roy E. Shawver and Alma M. Shawver a rule in prohibition requiring Claude H. Casto, Justice of Union District, Kanawha County, West Virginia, and Earl R. Comstock, to show cause why a writ of prohibition should not issue against them.

There is no dispute in this proceeding as to the facts. Petitioners purchased various articles of merchandise from Comstock on open account. The dealings extended from August 9, 1949, to and including November 30, 1950. The total amount of such purchases was $834.92. Petitioners made payments on the account up to and including November 30, 1950, amounting to $102.92, leaving a balance due on the account of $732.

On November 30, 1950, Comstock went to Casto, the justice, and brought three actions for the recovery of the balance due on the account--two for $300.00 each and one for $132.00. Though personally served with process concerning such actions, the Shawvers made no appearance. The justice, on December 7, 1950, attempted to render two judgments against petitioners for $300.00 each and costs, and one judgment for $132.00 and costs. One of the alleged judgments for $300 was recorded in the justice's docket at page seven, another for $300 was recorded at page eight of the docket, and one for $132 was recorded at page nine thereof. It seems that the alleged judgment recorded at page seven of the docket, together with $14.19 costs, has been paid.

The answers of defendants allege that the Shawvers, on August 9, 1949, purchased a refrigerator, the total charge for which was $264.69, after deducting an allowance for certain goods traded in; that on August 17, 1949, they purchased a washing machine on which there was a balance owing of $173.34; that on November 25, 1949, they purchased a range and heater amounting to $192.20; that on December 1, 1949, they purchased various articles of merchandise amounting to $22.73; and that there was an additional charge of $30.60 for other merchandise purchased by them on January 6, 1950. The total cost of merchandise purchased, together with other charges, amounted to $828.26.

It is alleged in Comstock's answer that no controversy existed as to the accuracy of the charges or the quality of the merchandise, and that on November 30, 1950, the balance due from the Shawvers to him was $732.54. The Shawvers arranged to pay Comstock certain bi-monthly payments, the amount of which was later increased to $30 each month. A conditional sales contract covering all the items of merchandise sold by Comstock to the Shawvers, was executed by the purchasers on March 15, 1950, which required the purchasers to pay $30.00 per month. In his answer, Comstock alleges that after the alleged judgments were rendered, the justice was directed to refrain from the issuance of execution thereon so long as semi-monthly payments of $15 were made.

It seems that after this arrangement was made, on or about the first of August, 1951, a controversy arose between petitioners and Comstock and a short time after such controversy arose the justice was directed to issue executions. After December 7, 1950, petitioners made various payments to the justice, which they did not direct to be applied to any one of the alleged judgments.

No appeal was taken to the judgments, nor was any objection interposed as to the three actions mentioned above.

Petitioners contend that the alleged judgment, recorded at page seven of the justice's docket, is valid; that they have paid the costs; and that the other two alleged judgments of $300 and $132 each are void, the justice having been without jurisdiction to render them.

The Shawvers inferentially contend that they are discharged from payment of the residue on the account on the ground that Comstock waived the payment thereof by taking void judgments.

Comstock and the justice contend that the petitioners, by their conduct, in failing to appear to the three actions and objecting thereto, consented to the splitting of the account into three parts, and that when such account was so divided, the justice had jurisdiction to render the three judgments, and further, that if such consent to the splitting of the cause of action was not sufficient to give the justice jurisdiction, all the judgments are void.

These contentions raise the following questions: (1) Did the justice have jurisdiction of the subject matter? (2) Was the implied consent by the debtors to splitting the cause of action sufficient to confer jurisdiction on the justice? (3) Is one of the judgments valid and are the others void, or are they all void?

Jurisdiction of a court consists of three elements--venue, jurisdiction of the person, and jurisdiction of the subject matter. In this proceeding there is no question about venue being proper, nor is jurisdiction of the persons of the Shawvers challenged. Hence, we are concerned solely with the question of whether the justice had jurisdiction of the subject matter.

The civil jurisdiction of a justice rests upon the provisions of Section 28 of Article VIII of the Constitution of this state, which provides that a justice shall have jurisdiction over 'actions of assumpsit, debt * * * if the amount claimed, exclusive of interest, does not exceed three hundred dollars * * *', and upon Code, 50-2-1, sub-paragraph (a). Johnson v. Hunter, 50 W.Va. 52, 57, 40 S.E. 448; Roberts v. Hickory Camp Coal & Coke Co., 58 W.Va. 276, 52 S.E. 182; Midland Inv. Corporation v. Ballard, 101 W.Va. 591, 133 S.E. 316; Hastings v. Finney, 119 W.Va. 301, 193 S.E. 444.

If the principal amount claimed by the plaintiff exceeds three hundred dollars, the action must be dismissed and the costs adjudged against the plaintiff unless the plaintiff remits the excess of principal above three hundred dollars in writing in form and effect as follows: 'The plaintiff, in this action, forgives and remits to the defendant so much of the principal of this claim as is in excess of three hundred dollars, together with the interest on said excess.' Code, 50-2-7.

In Mitchell v. Davis, 73 W.Va. 352, 80 S.E. 491, it was held that the amount named in the summons determines the jurisdiction, but if the plaintiff's claim exceeds three hundred dollars the plaintiff may release all in excess of that sum and sue for the remainder, but he may not divide his claim and bring separate suits. To the same effect: Bodley v. Archibald, 33 W.Va. 229, 10 S.E. 392, where it was held that the lack of jurisdiction may be shown by matters outside the proceedings in the justice's court. In this case there was no effort made to release the $432 still due on open account after the rendition of the alleged judgment recorded at page seven of the justice's docket.

Opinions of this court disclose that in some instances litigants have attempted to confer jurisdiction on justices by giving fictitious credits or by dividing or splitting the cause of action. There is no question as to fictitious credits in the instant case. Here, defendants in their brief admit that Comstock had a single cause of action.

Splitting of a cause of action and bringing a suit for part thereof was forbidden at common law. In such instances the creditor holding such claim was precluded from recovering the balance of his demand. McDowell County Bank v. Wood, 60 W.Va. 617, 55 S.E. 753. Formerly, a plaintiff was required to bring an action for all due him in certain instances, and if he brought his suit for part only, whether the judgment was for...