Todd and Smith v. Gates.
| Decision Date | 11 November 1882 |
| Citation | 20 W.Va. 464 |
| Court | West Virginia Supreme Court |
| Parties | Todd and Smith v. Gates. |
1. The summons in a justice's court, like the writ in courts of record, must be looked to in order to determine the plaintiff's claim upon the question of jurisdiction, (p. 469.)
2. But if the sum mentioned in the summons is within the jurisdiction of the justice, still if it appears during the trial that the plaintiff's claim was an entire sum and that the plaintiff had reduced it by feigned credits or otherwise, the action will be dismissed as coram non judice. (p. 469.)
3. Where an action before a justice is, under section 3, chapter 226 Acts of 1872-3, on the motion of the defendant, removed to the county court, the action may be tried in that court without written pleadings, and whenever it appears, by proof or otherwise, that the justice would not have had jurisdiction if the case had been tried before him, such court shall dismiss the action, (p. 470.)
4. The pleadings in justices' courts are prescribed by statute, and no provision is made for pleas in abatement; such plea, therefore, to the jurisdiction of the justice, cannot be properly filed either before the justice or the county court to which such action may be removed under the statute, (p. 470.)
5. The evidence of the plaintiff's debt, which is required to be filed with the justice, under section 35 chapter 226, Acts 1872-3, is not a part of the summons and can not be regarded as such on a motion to quash the summons, (p. 471.)
6. In the absence of a bill of exceptions, making the evidence or facts proved on the trial, a part of the record, this Court will presume that the judgment of the court below was proper, (p. 471.)
"Writ of error and supersedeas to a judgment of the circuit court of the county of Ohio, rendered on the 2d day of May, 1881, in an action at law in the said court then pending, wherein Todd & Smith were plaintiffs, and Martin Gates was defendant, allowed upon the petition of said Gates.
Hon. Thayer Melvin, judge of the first judicial circuit, rendered the judgment complained of.
The facts ot the case are fully stated in the opinion of the Court.
Robert White and R. G. Barr for plaintiff in error cited the same authorities as in Stevens v. Broun, supra.
Henry 31. Russell and William P. Hubbard for defendants " 158; 48 N. II. 176; 11 Mass. 368; 10 Bush. 519; 44 Conn. 208; Sto. Conf Laws, § 414; 4 Wash. C. C. 380; 74 Pa. St. 57; 54 Mo. 400; 82 la. 58; 75 Va, 246; 8 O. 201; Sto. Conf. Laws, §§ 241, 280; 11 W. Ya, 531; 26 K Y. 450; 50 Ind. 319; 44 Cal. 294.
Snyder, Judge, announced the opinion of the Court: This action was commenced before Wm. II. Caldwell, a justice of Ohio county, by summons issued May 10, 1878, in which it was stated that the plaintiffs, Todd & Smith, as partners, will claim against the defendant, Martin Gates, one hundred dollars "due on contract for transcript of foreign judgment," With said justice the plaintiffs filed a bill of particulars, consisting of the transcript of a judgment rendered June 20, 1877, in Mill township, Tuscarawas county, State of Ohio, in favor of R. A, Allen against Martin Gates, by John Milone, a justice of said county and State, for one hundred and twenty-eight dollars and ninety-seVen cents and five dollars and forty-five cents costs. Upon said transcript is an affidavit in which said Allen swears, on April 4, 1878, that no part of said judgment has been paid and that the same is due to him from said Martin Gates; and there is, also, endorsed thereon an assignment, dated May 8, 1878, from said Allen to the plaintiffs, Todd & Smith. An attachment was issued and served on the Pittsburg, Cincinnati and St, Louis Railway Company, as garnishee, in Wheeling, Ohio county, on May 10, 1878. The defendant, Gates, appeared before said justice, Caldwell, and on his motion the action was transferred to the county court of said Ohio county, on the 27th day of May, 1878; and the same having been transferred, the defendant on June 4, 1878, moved said county court to quash said attachment, because neither the affidavit nor the attachment was sufficient, and because the justice who issued it and the summons had not jurisdiction as appears on the face of the papers, which motion the court overruled. The defendant then moved the court to quash the summons and complaint, upon the ground that the justice had no jurisdiction, which motion the court, also, overruled. Subsequently, the defendant tendered five pleas to the attachment and four to the action, all of which were in writing, and to the filing of which the plaintiff objected and the court sustained said objections and rejected all of said pleas, and the defendant excepted and tendered his bill of exceptions, which was made part of the record. The defendant thereupon pleaded nil debit, to which the plaintiff replied generally, and by consent of parties the case was tried by the court which found the issue for the plaintiff, and, on January 27, 1879, rendered judgment for the plaintiff for one hundred and rune dollars and fifty cents and costs. At the same time a rule was awarded by the court against The Pittsburgh, Cincinnati and St. Louis Railway Company, garnishee, requiring it to answer the attachment theretofore served on it; and on March 25, 1879, said Railway Company appeared and filed its answer admitting that, at the time said attachment was served on it, it was indebted to the defendant seventy-seven dollars and sixty-five cents; and thereupon the court gave judgment against it for said sum. The defendant was allowed a writ of error from said judgment of January 27, 1879, to the circuit court of said Ohio county, and by an order entered by said court, May 2, 1879, said judgment was affirmed; and from this last mentioned judgment the defendant was granted a writ of error and supersedeas to this Court, The pleas in writing tendered in this action by the defendant and rejected by the court, except as hereinafter stated, attempt to make the same defences and present the same questions that were attempted to be made by the pleas in writing tendered and rejected in the case of J.E. Stevens for, cfe., v. Norris H. Brown, decided at the present term of this Court, For the reasons stated in the opinion of this Court in that case, and for the reasons hereinafter given, we are of opinion that the said pleas tendered in this case were prop airy rejected. The only defences raised by the pleas in this action which were not raised by the pleas in that case are: (1.) That the amount of the foreign judgment sued on in this action was for a sum in excess of one hundred dollars, and that the plaintiffs fraudulently and for the purpose of giving jurisdiction to a justice instituted this action for but one hundred dollars, part of said foreign judgment; and (2.) That the assignment of said foreign judgment by the plaintiff therein, R. A. Allen, to the plaintiffs in this action, is illegal and void, because made by a citizen of the State of Ohio in violation of a statute of that State, making it a misdemeanor to make such assignment for the purpose said assignment was made, and that, therefore, the plaintiffs have no title to the said judgment and cannot sue in their names upon it. I do not deem it necessary to set out said pleas in full or to give any of the other pleas rejected as aforesaid, because by reference to the facts set out in the said case of Stevens v. Brown their character will be fully understood.
It is first insisted by the plaintiff in error that the affidavit on which the attachment in this case is founded, is insufficient. There are several objections taken to said affidavit but the only one I deem it necessary to notice is, that it does not state the nature of the plaintiff's claim as required by the statute. The affidavit states that the claim, "is for transcript of foreign judgment." In McCluny v. Jackson, 6 Graft. 96, under a statute which required the plaintiff to state, in his attachment, the character of his claim, the court held that the statute did not require the plaintiff to describe his claim with the precision of a declaration, nor was it necessary for him to state whether it was due by bond, note, account or otherwise. See, also, Haywood v. McOrory, 38 111. 459; Theirman v. Value, 82 Ind. 400; Sullivan v. Fugate, 1 Heis. 20; Klenk v. Schoahn, 19 Wis. 124.
Under these authorities it seems to me the affidavit is sufficient.
I shall next consider, together, the defendant's motion to quash the attachment, his motion to quash the summons and complaint and, also, his plea to the jurisdiction of the justice.
The object of this plea and these motions was, evidently, intended to present in different phases the question, whether the justice, before whom this action was brought, had jurisdiction of the plaintiff's claim? The plaintiff in error insists that the said claim, as shown by the foreign judgment tiled with the justice and referred to in the summons, was for over one hundred dollars; being in fact for one hundred and twenty-eight dollars and ninety-seven cents, and, therefore, in excess of the amount for which a justice can take jurisdiction. When this action was brought, chap. 226 of the Acts of 1872-3, was in force and the powers and duties of the justice must be determined by that statute. It provides, that the civil jurisdiction of justices shall extend to actions of assumpsit, debt, &c, "if the amount claimed exclusive of interest does not exceed one hundred dollars." "But in every case where the sum in controversy exceeds the amount or value of twenty dollars, the justice shall, upon the...
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