Stewart v. Baltimore
| Decision Date | 14 September 1889 |
| Citation | 33 W.Va. 88 |
| Court | West Virginia Supreme Court |
| Parties | Stewart v. Baltimore & O. R. Co.*(Green, Judge,Absent.) |
In determining the question of jurisdiction in an action before a justice for a wrong the amount claimed in the summons, not the damage shown by the testimony, must control.
Where the plaintiff claims damages for the destruction of 500 rails, about one mile of board fence, some wood upon his land and a lot of growing timber, caused, as he alleges, by the negligence of the defendant in permitting tire to emit from its locomotive and spread over his land, he will not be permitted to prove general damages done to his farm, but he will be confined to the specific items of damage alleged in his complaint.
J.A. Hutchinson for plaintiff in error.
U. N. Arnett and J. A. Haggerty for defendant in error.
This was a writ of error from a judgment of the Circuit Court of Marion county upon an appeal from the judgment of a justice of said county. The defendant in error, in his complaint before said justice, alleged that on the day of, 1885, in the said county of Marion, the plaintiff in error suffered and permitted fire to emit and drop from its locomotive, and wrongfully and negligently suffered and permitted it to spread to and over the land of the said defendant in error, situate in said county, and to burn and destroy about 500 rails and about one mile of rail and board fence and some wood upon said land, of the value of $125.00 and burn and destroy a lot of growing timber and other forest and rail-timber, of the value $175.00 upon said land, the property and timber of said defendant in error; and he claimed that he was damaged to the amount of $300.00 in the manner therein stated; and in the summons which was issued by said justice in said action, dated on the 23d day of August, 1886, the said justice required the plaintiff in error to answer the complaint of Jesse Stewart in a civil action for the recovery of money due as damages for a wrong, in which the plaintiff would demand judgment for $300.00 exclusive of interest and costs; and on the 8th day of October, 1886, a judgment was rendered by said justice against the plaintiff in error for the sum of $250.00 with interest from that date and costs.
From this judgment an appeal was taken to the Circuit Court of said county, where said action was tried before a jury of six, who found a verdict in favor of the defendant in error for $270.00, which verdict the plaintiff in error moved the court to set aside, and grant it a new trial, which motion was overruled, and a judgment rendered upon said verdict, from which judgment the plaintiff in error applied for and obtained a writ of error to this Court.
To the rulings of the Circuit Court upon the trial of said appeal six separate bills of exceptions were taken by the plaintiff in error. By the first of said bills of exceptions it appears, that the defendant in error testified, that he had sustained damages to the amount of $500.00 by reason of the matters complained of in said suit, and that thereupon the plaintiff in error moved the court to dismiss the case, on the ground that the action was brought before a justice of the peace for a cause not within a justice's jurisdiction, which motion was overruled, and the action of the court in overruling said motion is assigned as the second error and is earnestly insisted on by the attorney for the plaintiff in error in his brief he claiming that, because the defendaut in error testified, that, the injury, for which suit was brought, caused damage to him to the amount of $500.00, therefore the justice did not have jurisdiction. Now, our Code, c. 50, § 10, provides, that "a justice shall have jurisdiction of ac tions for trespass on real estate, or damages to the same, or to rights pertaining thereto, if the damages claimed do not exceed three hundred dollars, and the cause of action arose in his county." What is meant by the "damages claimed?" and where do we look to see what is claimed? *In answering these questions it is not necessary to wait until the trial has commenced, and the evidence, or any portion of it, has been introduced; the allegata in some form must precede the probata, and in ascertaining what has been alleged in a suit of this character before a justice we must look to the summons, by which the action is commenced, and if it is found, that in the summons a greater amount of damages than $300.00 is claimed, then the motion to dismiss should prevail.
In the case of State v. Lambert, 24 W. Va. 399, which was an action before a justice to recover damages for the breach of an official bond, this Court held, that "theamount of damages alleged and claimed in the summons, and not the penalty of such bond, must be considered as determining the jurisdiction of the justice."
In the case under consideration only $300.00 was claimed in the summons, and the plaintiff could not go beyond that amount in his recovery, no matter what might be the proof. I do not therefore think the court below erred in overruling the motion of the plaintiff in error to dismiss the case on the ground that the cause was not within the jurisdiction of a justice.
The third ground of error assigned by the plaintiff in error is as to the mode of estimating damages permitted by the Circuit Court, as shown by bill of exceptions No. 2, from which it appears, that the plaintiff's own testimony before the jury tended to prove, that the damages done to his whole farm of 135 acres by the burning in the complaint mentioned was $500.00, because said evidence was misleading and erroneous and was not admissible under the complaint, the damage being thereby limited to "rails, rail and board fence," and a lot of growing timber, and other forest and rail-timber, and the burning mentioned in bill of exceptions No. 6 being confined to about eight acres, upon which was standing the timber-trees, young trees,...
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