Superior v. Peters
| Decision Date | 27 June 1923 |
| Docket Number | 4730. |
| Citation | 118 S.E. 540,94 W.Va. 376 |
| Parties | SUPERIOR v. PETERS ET AL. |
| Court | West Virginia Supreme Court |
Submitted April 24, 1923.
Syllabus by the Court.
Under section 2, c. 89, Code, an action of unlawful entry and detainer may be brought, docketed, and tried during a term of court.
"Four rooms and bath, located on the second floor" of a certain building, which are shown to comprise the entire floor, is sufficient description of the premises in such action.
A summons in unlawful entry and detainer, stating that the defendants "unlawfully withhold from the plaintiff the possession of the premises," sufficiently complies with section 1, c. 89, Code, requiring the summons to set forth that "the defendant is in the possession and unlawfully withholds from the plaintiff the premises in question."
Possession by the defendants at the institution of the action justifying recovery against them, is sufficiently shown where it appears that the premises were then occupied by one of the defendants and their tenants.
Error to Circuit Court, Ohio County.
Action by Harry Superior against Alphonse Peters and others. Judgment for plaintiff, and defendants bring error. Affirmed.
Jno. J Coniff, of Wheeling, for plaintiffs in error.
Frank W. Nesbitt and Russell B. Goodwin, both of Wheeling, for defendant in error.
This writ of error is to the judgment of the circuit court of Ohio county, entered July 22, 1922, on verdict of a jury finding for the plaintiff, in an action of unlawful entry and detainer, the premises described in the summons as follows Four rooms and bath, located on the second floor of the building situated on the east side of Main street, between Elizabeth street and Market alley, in the city of Wheeling, known as No. 1048 Main street, in said city. Prior to April 29, 1920, the defendant, who held a long-term lease for said building, used and occupied the first floor thereof in the conduct of a mercantile enterprise. On that date, by written agreement, he sold, transferred, and assigned to the plaintiff his entire stock of merchandise, together with the lease covering the building. The contract was made subject, however, to the provision:
"Should the said Harry Superior require the use of said second floor for his own business or occupation at any time after two years from the date hereof, he shall have the right and privilege of demanding and receiving same upon payment to said Alphonse Peters of the sum of $750."
Under this provision, March 31, 1922, plaintiff tendered to defendant the sum of $750 and demanded the possession and use of said second floor for his own business and occupancy. The summons was issued May 3d, 1922, during the term of court at which the action was tried. On the return day of the summons, May 17, 1922, defendant objected to the case being placed on the docket for trial at that term, on the ground that the court was without jurisdiction, and also moved to quash the summons. The objection and motion were overruled, without exception, and the case set for trial May 31, 1922. Defendant also objected on the calling of the case, May 31st, to its being tried at that term of court, as the suit had not been brought until after the beginning of the term. Defendants also moved to quash the summons for its failure to state that defendants were in possession of the premises. These motions were overruled and exceptions noted.
The defendants offered no evidence, but rely here for reversal upon a number of technical errors, following:
(1) The action, having been brought during the April, 1922, term of court, was improperly docketed and tried at that term.
Section 2, chapter 89, Code, provides that the summons in unlawful entry and detainer, authorized under section 1 of said chapter to be issued by the clerk of the circuit court of the county in which the land, or some part thereof, lies, "may be returnable to, and the case heard and determined at, any term of such circuit court." This section further provides:
Section 1, chapter 131, requires:
Under section 6, chapter 121:
"Any person entitled to recover money by action on any contract may, on motion before any court which would have jurisdiction in an action, otherwise than under the second section of the one hundred and twenty-third chapter of this Code, obtain judgment for such money after twenty days' notice, which notice shall be returned to the clerk's office of such court fifteen days before the motion is heard."
The notice under this statute must be returned to the clerk's office before the beginning of the term of court to which it is made returnable, as a prerequisite to the right of trial at such term. Hale v. Chamberlain, 13 Grat. (Va.) 658; Knox v. Horner, 58 W.Va. 136, 51 S.E. 979; Citizens' National Bank v. Dixon, 117 S.E. 685, decided at this term, but not yet [[officially] reported.
These decisions rest upon the presumed...
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