Town of Camden on Gauley ex rel. Mollohan v. O'Brien
| Court | Supreme Court of West Virginia |
| Citation | 138 W.Va. 787,79 S.E.2d 74 |
| Docket Number | No. 10538,10538 |
| Parties | TOWN OF CAMDEN ON GAULEY ex rel. MOLLOHAN, v. O'BRIEN et al. |
| Decision Date | 18 December 1953 |
Syllabus by the Court.
1. In an action in debt, unlike in an action which sounds in damages such as an action of trespass on the case, the recovery sought is the amount of the debt aqnd damages, if any, for the detention thereof.
2. In an action in debt the damages for the detention of the debt are merely nominal, and need not be stated in either the writ or the declaration.
3. The fact that the writ instituting an action in debt does not state the amount of the debt does not render the writ void, and on motion of the plaintiff the writ may be amended to state in a sum certain the amount of the recovery sought.
4. In an action in debt upon a penal bond, in which the writ does not state the amount of the debt or the amount of the debt and damages for the detention of the debt, an amendment of the writ by order of the trial court under Code, 56-4-30, upon plaintiff's motion, by the insertion in the writ as the amount sought to be recovered of the words 'Damages $3500.00', which is the amount of the penalty of the bond, is sufficient as showing the amount of the debt as distinguished from damages for the detention thereof which plaintiff seeks to recover.
5. 'Under Code, 56-4-30, a defendant in any suit or action, instituted in a court of general jurisdiction, on whom process summoning him to answer appears to have been served, shall not take advantage of any defect in the writ or return, where such defect does not appear on the face of the record, unless such defect be pleaded in abatement.' Syl., Hall, Adm'r, etc. v. Ocean Accident & Guarantee Corp., Ltd., 122 W.Va. 188 .
6. Code, 56-4-30, which provides that 'in the case of every such defect [other than a case of misnomer] or such variance [a variance between the writ and the declaration], whether the same shall be pleaded in abatement or not, the court may at any time permit the plaintiff to amend the writ or the declaration so as to perfect the writ or correct the variance, and may permit the return to be amended * * *', and Code, 56-3-4, which provides that 'It [the process to commence a suit] * * * shall not, after it is issued, be altered, nor any blank therein filled up, except by the clerk', should be construed in pari materia.
7. The issuance and service of process in the manner prescribed by Code, 56-3-4, 5, unless waived, is essential to the jurisdiction of the trial court to entertain an action at law or a suit in equity; and such jurisdiction must always affirmatively appear by proper process, and service on the defendant or acceptance of service by or on behalf of the defendant.
8. 'A defect in such summons [a summons commencing an action or suit in a court of record] is not waived by pleading to the merits after the overuling of a motion to quash, to which an exception has been taken and made a part of the record.' Pt. 3 Syl., Fisher, Sons & Co. v. Crowley, 57 W.Va. 312 .
9. Though the question of jurisdiction was not saved or raised in the trial court or embraced in the assignments of error in this Court, this Court, on writ of error to the final judgment of a trial court, will take cognizance of the fact that the trial court was without jurisdiction to enter the final judgment because the process instituting the action is void.
10. A process which on the face thereof is made returnable 'before the Circuit Court of Webster County, at Rules to be held for said Court, on the first Monday of May next', a day on which the circuit court is not in session, though the day designated in the process is the first day of the May rules held in the circuit clerk's office, does not sufficiently inform the defendant of the place at which he is required to appear, is void; and the error is not self-correcting so as to render the process valid under the rule enunciated by the Court in the case of Town of Point Pleasant v. Greenlee & Harden, 63 W.Va. 207 .
11. An action at law on the official bond of a peace officer of a municipal corporation instituted for the purpose of recovering the penalty of the bond, payable to the State of West Virginia, should be instituted in the name of the State of West Virginia on the relation of the person injured by the alleged breach of the officer's official duties.
12. The case of City of Mullens v. Davidson, 133 W.Va. 557 [57 S.E.2d 1, 13 A.L.R.2d 887], distinguished.
Hoover & Bickel, Webster Springs, for plaintiffs in error.
John H. Fox, W. M. Kidd, Sutton, for defendant in error.
In this action in debt instituted in the Circuit Court of Webster County by Alma Mollohan, entitled Town of Camden on Gauley, a municipal corporation of the State of West Virginia, which sues for the use and benefit of Alma Mollohan, against Ulysses S. O'Brien, Town Sergeant of Camden on Gauley, a municipal corporation, and H. C. White, the plaintiff sought to recover damages in the amount of thirty-five hundred dollars, the penalty of an official bond in which the defendant, Ulysses S. O'Brien, is principal, and the defendant, H. C. White, is surety. To a judgment in the amount of fifteen hundred dollars, based upon a jury verdict, the defendants prosecute this writ of error.
This action was instituted by the issuance of a writ, dated April 16, 1952, served on the defendant, Ulysses S. O'Brien, Town Sergeant for the Town of Camden on Gauley, a municipal corporation, and H. C. White, commanding the defendants * * *'
The defendants having moved the Court on September 9, 1952, to quash the process issued and served, and to dismiss the action on the ground that the process in the action is void for the reason that the action sounds in damages and no damages are laid in the process and writ, the court, over defendants' objection, on plaintiff's motion permitted the process to be amended by inserting therein, after the words 'In Debt', the following: 'Damages $3500.00.'
On September 23, 1952, defendants tendered for filing a written demurrer to the declaration on the ground that the bond pleaded in the declaration being payable to the State of West Virginia, the action must run in the name of the State of West Virginia, and not in the name of the municipal corporation, the Town of Camden on Gauley. The trial court refused to permit the defendants to file this demurrer on the ground that it was tendered too late.
The defendant O'Brien, Town Sergeant of the municipal corporation, Camden on Gauley, on April 23, 1951, having observed that Ira Mollohan, husband of Alma Mollohan, was driving his automobile while intoxicated on the main street of that town, pursued him in a pick-up truck from the place where the Mollohan automobile had been parked to a point in Nicholas County, a short distance from Camden on Gauley, which is in Webster County. There, without a warrant, the officer arrested the driver, Ira Mollohan, for the offense of driving an automobile while intoxicated, and his wife, Alma Mollohan, for intoxication in a public place, the offenses being claimed by the defendant officer to have been committed in his presence.
Alma Mollohan, hereinafter referred to as 'relator', together with her husband, was taken to the jail in the Town of Camden on Gauley, and incarcerated therein. There they remained until about ten o'clock on the following morning, when they were taken before a justice of the peace in the Village of Cowen, Webster County, and fined.
Upon appeal having been taken by the relator to the Circuit Court of Webster County, the warrant, subsequently issued for her arrest, was dismissed. On April 16, 1952, the relator, claiming that the arrest and imprisonment of April 23, 1951, were false, instituted this action of debt against the defendants.
At the trial the relator testified and introduced evidence, over defendants' objection, as to the condition of the town jail at the time the Mollohans were incarcerated, a matter over which the defendant O'Brien, as Town Sergeant, had not control.
The trial court gave, over defendants' objection, 'Plaintiff's Instruction No. 1', and gave, without objection, defendants' instruction No. 1, which defendants assert was inconsistent with the peremptory instruction given for the plaintiff. Defendants' instruction No. 1 instructed the jury that the burden is upon the plaintiff (relator) to prove to the satisfaction of the jury by a preponderance of the evidence every material and essential fact alleged in the declaration, and that if the jury believes that the plaintiff has failed by a preponderance of the evidence to prove any single allegation of her declaration, the jury should find for the efendants.
The trial court refused to give defendants' instruction No. 2, which instructed the jury that if it should believe from the evidence that the defendant O'Brien was chief of police of the Town of Camden on Gauley, in Webster County, and arrested the plaintiff in Nicholas County without a warrant, and if the jury should further believe that the plaintiff (the relator) had committed no offense in the presence of O'Brien in the Town of Camden on Gauley, O'Brien was not in fresh pursuit of relator for the offense for which she was arrested, in which event the jury was instructed that the act of the defendant officer complained of in the declaration is unrelated to the duties of his office, and entirely beyond any duty which he might be called upon the perform in connection therewith, and the jury should find for the defendant.
The circuit court also refused to give defendants' instruction No. 3, which instructed the jury that if it...
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