Opinion
01-01-1818
William Wallace v. The Commonwealth.[*]
OPINION
This was an application for a Writ of Error to a judgment of the Superior Court of Brooke county. The petitioner was indicted for malfeasance in his office of Justice of the Peace. The Indictment charged, that he, out of mere malice, and evil disposition towards a certain John Hindman, a Surveyor of the high-way, and with a wicked and malicious intent to disquiet, defraud and oppress the said J. H. and falsely, wickedly and maliciously to cause the said J. H. to be put to costs and expenses, unjustly, wickedly, maliciously, and unlawfully wrote, signed and issued under his own hand as such Justice of the Peace, a certain Warrant or Summons, to a Constable directed, commanding him to summon the said John Hindman, to appear before him the said William Wallace, to answer to a certain complaint and Information of a certain John Walker, made against him the said John Hindman, for not keeping a road (describing it) in repair, and upon that warrant or summons caused the said J. H. to appear before him the said W. W. as such Justice of the Peace, to answer the complaint aforesaid, and upon a hearing therein, did not acquit the said J. H. of the complaint aforesaid, but unlawfully, corruptly, and wickedly adjudged the said J. H. to pay the costs of the same; whereas, in truth and in fact, the said John Walker never did make to the said William Wallace, nor to any other Justice of the Peace, the Complaint or Information aforesaid against the said J. H. nor did the said John Walker, nor any other person, direct the said prosecution, but the said William Wallace falsely and wickedly used the name of the said John Walker, without his knowledge, and against his directions, in contempt of his the said William Wallace's oath, and duty, as a Justice of the Peace, to the evil example, & c. & c. To this Indictment the Defendant pleaded Not Guilty, and the jury convicted him, and assessed his fine to be one hundred dollars. The Superior Court thereupon entered a judgment against him, that he be removed from his office of Justice of the Peace, and that he is incapable of exercising the duties of the same, and also a judgment for the fine.
The application for a Writ of Error was refused.
JUSTICES OF THE PEACE.
I. Definition and Nature.
II. Appointment and Qualification.
III. Jurisdiction.
1. In General.
2. Statutory.
3. Notice.
4. Amount in Controversy.
a. Amount in General.
b. Reduction.
c. How Determined.
5. Actions Involving Title to Land.
6. Criminal Cases.
7. Illegal Exercise Prohibited.
IV. Procedure.
1. Process Instituting Suit.
2. Examination and Commitment.
3. Pleadings.
4. Attachment.
5. Verdict and Judgment.
6. Continuance.
7. New Trial.
8. Record and Docket.
9. Execution.
V. Disqualification and Removal.
VI. Proceedings against.
Cross References to Monographic Notes.
Acknowledgments, appended to Taliaferro v. Pryor, 12 Gratt. 277.
Appeals.Courts.
Executions, appended to Paine v. Tutwiler, 27 Gratt. 440.
Judgments, appended to Smith v. Charlton, 7 Gratt. 425.
Jurisdiction, appended to Phippes v. Durham, 8 Gratt. 457.
I. DEFINITION AND NATURE.
Definition.--A justice of the peace is a judicial officer of an inferior local court, with jurisdiction in civil cases when small amounts are involved, and in criminal cases of misdemeanors and petty crimes. 18 Am. & Eng. Enc. Law (2d Ed.) 8.
Judicial Officer--Exemptions.--A justice of the peace is a judicial officer, and when acting within his jurisdiction, is exempt from liability in civil actions for his official acts, notwithstanding it is alleged that they were done maliciously and corruptly. Johnston v. Moorman, 80 Va. 131. See Burch v. Hardwicke, 30 Gratt. 24.
Not a State Court.--In the act of congress providing for the removal of causes from certain state courts to the federal courts, a justice of the peace is not a state court within the meaning of the act, and no motion for a removal could have been made before him. Rathbone, etc., Co. v. Rauch, 5 W.Va. 79.
Functions Similar to United States Commissioner.--The functions of the United States commissioner in committing for trial are precisely like those of a justice of the peace, and there is no difference in principle between the effect of the judgment of the justice and that of the commissioner. Jones v. Finch, 84 Va. 204, 4 S.E. 342. See Womack v. Circle, 32 Gratt. 324; Blanks v. Robinson, 1 Va. Dec. 600.
II. APPOINTMENT AND QUALIFICATION.
Authority Delegated to County Court.--Section 97 of Code of 1887, which gives authority to the county courts to appoint additional justices whenever the public service requires it, does not violate § § 2 and 4 of art. 7 of the Constitution, and it is not an unwarranted delegation of legislative power. Ex parte Bassitt, 90 Va. 679, 19 S.E. 453.
By Governor.--The governor may commission some of the persons recommended as justice at the same time by the county court, and may refuse to commission the others. Frederick Justices v. Bruce, 4 Gratt. 281.
When Oath May Be Taken before a Justice. --A person, who has been appointed by the governor as a justice, may take the oath of office before a justice of the peace if it be done in the courthouse on a court day. Frederick Justices v. Bruce, 4 Gratt. 281.
III. JURISDICTION.
See monographic note on " Jurisdiction" appended to Phippes v. Durham, 8 Gratt. 457.
1. IN GENERAL.
Limitations--Provisions of Law Cannot Be Disregarded.--It was stated in James v. Stokes, 77 Va. 225, that the limitations of the law fixing and limiting the jurisdiction of justices were eminently wise and proper; and founded on the soundest principles of public policy, and whether that be so or not, the provisions of the law could not be disregarded, and no manipulation of a debt could alter or affect the jurisdiction prescribed by law for that tribunal.
Limitations--Restricted to District Where Elected.--Except when he is expressly authorized by law, a justice of the peace cannot hear and determine a cause in a district other than the one for which he was elected. Johnston v. Hunter (W. Va.), 40 S.E. 448.
Statutory Forfeit Taking Too Much Toll.--The five dollars forfeit prescribed by the law, § 37, ch. 44, W.Va. Code 1891, to be paid by the proprietor of a grist mill for taking more toll than allowed by the statute, may be recovered in a civil proceeding before a justice of the peace. West v. Rawson, 40 W.Va. 480, 21 S.E. 1019.
2. STATUTORY.
Concurrent Jurisdiction with County and Corporation Courts of Misdemeanors.--Section 4106, of the Code of 1887, as amended by Acts 1893-4, p. 430, provides that justices of the peace shall have concurrent jurisdiction with the county and corporation courts in petit larceny and other misdemeanors, whenever the accused elects to be tried by said justice, and this section is not in conflict with the constitutional provision that in criminal prosecutions a man has a right to a speedy trial by an impartial jury, as provision is made for a trial by jury on appeal to the higher court in cases of conviction before the justice. Brown v. Epps, 91 Va. 726, 21 S.E. 119. This case reverses Miller v. Com., 88 Va. 618, 14 S.E. 161, 342, 979, which is given next below.
The Miller Case.--Section 4106 of the Code, which confers upon justices of the peace jurisdiction of the offence of keeping a bawdy house, concurrent with that of the county and corporation courts, is repugnant to art. 1, § 10, of the Constitution, which guarantees to an accused in all criminal prosecutions the right to a jury trial, and the fact that the subsequent sections give the right of appeal and trial by jury in an appellate court does not relieve the repugnancy. Miller v. Com., 88 Va. 618, 14 S.E. 161, overruled by Brown v. Epps, 91 Va. 726, 21 S.E. 119, supra.
Motion against Constable for Money Received--Jurisdiction Independent of Amount.--By the express provision of the thirty-first section of the act, concerning the jurisdiction of justices of the peace, 1 Rev. Code, pp. 253, 254, a party may recover money received by a constable on execution by motion, and any justice of the county in the court where the constable's official bond is deposited, may hear such motion and render judgment. The jurisdiction does not depend in any way upon the value of the execution or of the judgment, and is not affected by the fact that the party is at the same time prosecuting other motions against the same constable. Hendricks v. Shoemake, 3 Gratt. 197.
No Authority to Regulate Freight Rates in Absence of Statute.--In the absence of legislative enactment a justice of the peace has no authority to determine the rate of freight charges by a railroad corporation. Norfolk & W. Ry. Co. v. Pinnacle Coal Co., 44 W.Va. 574, 30 S.E. 196.
Railroad Company Liable for Killing Horse.--A railroad company bound itself by contract under seal to make and maintain necessary cattle guards at the boundary lines of an adjoining land owner, which it neglected and failed to do. One of its trains running through the premises frightened and drove a horse through the gap where the guard should have been, into the premises of the next land owner, where the track was fenced, by reason of which the horse was killed. The railroad company may be sued before a justice and held liable under § 26, ch. 50 of the Code of W.Va. 1891; Harrow v. Ohio, etc., R. Co. (1894), 38 W.Va. 711, 18 S.E. 926.
Submission to Arbitration--Revocation.--Where an order is made by consent in a justice's court, submitting the matter in controversy to arbitration, the submission is not revocable, except by order of the justice, under the statute, Code 1891, ch. 50, § 92 et seq., and that submission is a bar to a second suit for the same cause. Riley v. Jarvis, 43 W.Va. 43, 26 S.E. 366.
3. NOTICE.
Essential to Jurisdiction.--In order that jurisdiction be conferred on a justice, the summons must be issued and served. Colborn v. Booth, 41 W.Va. 289, 23 S.E. 556.
Judgment without Notice Void.--A judgment pronounced by a justice, without service of process upon or notice to the defendant, is void. Kanawha, etc., R. Co. v. Ryan, 31 W.Va. 364, 6 S.E. 924.
Suit against Railroad--Service on Agent in County Where He Resides and Suit Brought.--The summons to commence a suit against a railroad company before a justice of the peace may be served upon the freight and passenger agent of the company in the county where the suit is brought, and where such agent resides, according to § 34 of ch. 50 of the Code. Harrow v. Ohio, etc., R. Co. (1894), 38 W.Va. 711, 18 S.E. 926.
Order Changing Term--Not Necessary When Justices Present.--All the justices of a county being present in court, they make an order changing the months in which the quarterly courts are to be held, and also the day of the month on which the court is to commence. It was unnecessary that a notice should have been given them, and the order is valid. Jackson v. Com., 13 Gratt. 795.
4. AMOUNT IN CONTROVERSY. --See sec. 7. " Illegal Exercise Prohibited," infra.
a. Amount in General.
Interest and Costs Excluded.--The amount for which judgment is sought, exclusive of interest and costs, determines the jurisdiction of a justice. Moore v. Harper, 42 W.Va. 39, 24 S.E. 633.
See for civil jurisdiction of justices in Virginia, § 2939 of Code 1889, as amended by Acts 1891-2, p. 975; in West Virginia, Code 1899, ch. 50.
Fines--Penalty for Failure to Deliver Message.--Section 2939 of the Virginia Code provides that a justice of the peace shall have jurisdiction of any claim to a fine not exceeding $ 20, and of other claims not exceeding $ 100. Where a penalty of $ 100 was imposed by § 1292 of the Code, upon a telegraph company for failure to deliver a message, such penalty is a fine within the meaning of the statute, and a justice has no jurisdiction of the case. Union Tel. Co. v. Pettyjohn, 88 Va. 296, 13 S.E. 431.
b. Reduction.
Part of Demand May Be Waived.--A party may waive part of his demand, and sue before a justice for the balance, if the justice would have jurisdiction of the whole, though the effect is to cut off the right to an appeal. Ward v. Evans (W. Va.), 38 S.E. 524.
So one having claim under contract for more than $ 300, may, to get jurisdiction before a justice, release part of it and recover a less sum, but cannot split one demand into several actions. Richmond v. Henderson (W. Va.), 37 S.E. 653.
Though in an action before a justice the proof shows grounds for recovery of an amount beyond the jurisdiction, the plaintiff before verdict may withdraw any item, and then reduce his recovery within the jurisdiction and prevent the dismissal of his suit. Kyle v. Ohio, etc., R. Co. (W. Va.), 38 S.E. 489.
Claim for Specific Sum Cannot Be Split to Give Jurisdiction.--A person who claims a specific amount of damages for an alleged injury sustained in his business, will not be allowed to split up his claim, in order to reduce it to the jurisdiction of a justice, and to bring consecutive suits before a justice for such claim. Hale v. Town of Weston, 40 W.Va. 313, 21 S.E. 742; Richmond v. Henderson (W. Va.), 37 S.E. 653.
Reduction of Unliquidated Damages.--A party claiming unliquidated damages may reduce his claim, so as to bring it within jurisdiction of a justice of the peace. Wells v. Michigan Mut. Life Ins. Co., 41 W.Va. 131, 23 S.E. 527.
c. How Determined.
Amount Demanded in Summons Decides.--The amount of recovery in a civil action before a justice demanded by the summons is the test of the amount in controversy, on the question of jurisdiction. Richmond v. Henderson (W. Va.), 37 S.E. 653; Todd v. Gates, 20 W.Va. 464; Stewart v. Balt., etc., Co., 33 W.Va. 88, 10 S.E. 26.
Although a complainant in a justice's court claims items of recovery aggregating an amount in excess of the jurisdiction of that court, yet if the summons demands a sum within that jurisdiction, the action cannot be dismissed for want of jurisdiction. Kyle v. Ohio River R. Co. (W. Va.), 38 S.E. 489.
Amount Demanded in Summons Decides. --Breach of Official Bond--Damages.--Where an action for damages for a breach of the official bond of a constable was brought before a justice against the constable and his sureties, the jurisdiction of the justice is determined by the amount of damages claimed in the summons, and not by the penalty of the official bond of the constable. State v. Lambert, 24 W.Va. 399.
Amount Demanded in Summons Decides. --Bill of Particulars.--Where a summons of a justice in a civil action for the recovery of money for the breach of contract demands judgment for $ 300, though the plaintiff files two bills of particulars on different causes of action aggregating more than $ 300, this is not cause for dismissing the action before trial, for want of jurisdiction. Richmond v. Henderson (W. Va.), 37 S.E. 653.
Specific Claim for Damages--Cannot Be Split.--A claim for a specific amount of damages for an injury to plaintiff's business, cannot be split so as to bring the amount within the jurisdiction of a justice, and then be sued on in several suits. Hale v. Town of Weston, 40 W.Va. 313, 21 S.E. 742.
5. ACTIONS INVOLVING TITLE TO LAND. --It is generally provided by statute that a justice of the peace shall not have jurisdiction of actions involving title to real estate. Miller v. Marshall, 1 Va. Cas. 158; Warwick v. Mayo, 15 Gratt. 528.
No Jurisdiction of Cases Involving Title to Land--Trespass.--It was held in Belcher v. Gaston, 4 W.Va. 639, that under § 11, ch. 50 of the Code of W.Va. of 1868, a justice of the peace had no jurisdiction to try actions for trespass to real estate, in a case where the title to such real estate was drawn in question.
No Jurisdiction of Cases Involving Title to Land--Obstructing Street--May Decide Bona Fides of Claim.--In a proceeding before a mayor or justice to impose a penalty on a party for obstructing a street, if a claim to a freehold, incorporeal hereditament or franchise is set up by the defendant, the mayor or justice has jurisdiction to try the fact whether the claim is bona fide made. If it is, then the jurisdiction is ousted. Warwick v. Mayo, 15 Gratt. 528.
No Jurisdiction of Cases Involving Title to Land--Unlawful Detainer--Affidavit.--On the trial of a warrant issued by a justice in unlawful detainer, if answer of title is filed by the defendant setting forth therein facts showing that such title will come in question on trial thereof, which answer is verified by affidavit of the defendant or that of his attorney, if the justice be of opinion that the title to real property will come in question he shall dismiss the action at the cost of the plaintiff, unless the plaintiff or his attorney shall file an affidavit denying the truth of such fact. Watson v. Watson, 45 W.Va. 290, 31 S.E. 939.
No Jurisdiction of Cases Involving Title to Land--Unlawful Detainer--Landlord and Tenant.--In a warrant of unlawful detainer if it is a case in which the title to the land would properly come in question, and if the relation of landlord and tenant did not exist between the plaintiff and defendant, a justice of the peace has no jurisdiction to try the merits of the case, and it is his duty to dismiss the warrant. If after such dismissal an appeal be taken to the circuit court, it is the duty of such court to dismiss the warrant for want of jurisdiction, if the same facts appear. Hughes v. Mount, 23 W.Va. 130.
6. CRIMINAL CASES.
Exclusive Original Jurisdiction of Misdemeanors.--By § 4106 of the Code, as amended by Acts 1895-96, ch. 845, p. 924, justices of the peace are given exclusive original jurisdiction of all misdemeanors occurring within their jurisdiction. By § 4107 an unrestricted right of appeal to the county and corporation courts is secured, where a jury trial can be demanded. The effect of this statute is to take away from the county and corporation courts the power to try misdemeanors as courts of original jurisdiction. A warrant committing a prisoner charged with a misdemeanor by a county court is void. Lacey v. Palmer, 93 Va. 159, 24 S.E. 930.
Petit Larceny.--A justice of the peace has jurisdiction to try a prisoner for petit larceny and punish him if guilty; he has also the further jurisdiction to merely inquire into the alleged crime, and to require him to appear and answer the charge before the county court. Where he exercises the latter jurisdiction, the plea that the accused was twice in jeopardy will not lie. Wolverton v. Com., 75 Va. 909.
Petit Larceny. --By Free Negro or Mulatto.--Under Act of March 15, 1832, a free negro or mulatto for simple larceny to the value of $ 20 or less, must be tried by a justice of the county or corporation, and a court of oyer and terminer has no jurisdiction of the case. Cropper v. Com., 2 Rob. 842.
Violation of Sabbath.--Section 3799 of the Va. Code provides that any person laboring on the Sabbath shall forfeit two dollars for each offence. Section 745 provides that the word " fine" when used in that chapter shall include any pecuniary forfeiture; and § 712 provides that any fine imposed by statute shall be recoverable by indictments unless otherwise provided, except when the amount is less than $ 20, when the recovery may be by warrant. Section 2939 provides that any fine less than $ 20 recoverable by action at law, may be sued for before a justice by a civil warrant. Section 717 authorizes a justice to commit a defendant to jail until the fine and costs are paid. Under these statutes it was held that a justice had jurisdiction to impose a fine of two dollars for violating the Sabbath and to commit the offender to jail until payment. Marx v. Milstead (Va.), 9 S.E. 617. The provision in the constitution in regard to trial by jury does not extend to such an offence. Ex parte Marx, 86 Va. 40, 9 S.E. 475.
Presentment against Master for Suffering Slave to Hire Himself.--The superior courts of law have no jurisdiction to try and determine a presentment against a master for suffering his slave to hire himself out; but on presentment being made, it ought to be certified to a magistrate to be by him acted on pursuant to the statute. Com. v. Moore, 2 Va. Cas. 155.
Bail--After Examining Court Sends Prisoner to Superior Court.--A justice of the peace has no general authority to admit to bail, after an examining court has sent the prisoner to the superior court for trial, even if the examining court refuses bail or is silent, though any judge of the general court may. Hamlett v. Com., 3 Gratt. 82.
7. ILLEGAL EXERCISE PROHIBITED.
Prohibition--Judgment--Evidence.--Prohibition will lie to prohibit justices' tribunals, which are limited by law to the decision of controversies where the amount falls within a specific sum, from exercising a jurisdiction wholly beyond their authority, even after judgment, but before the judgment has been fully carried into effect; and in such cases the want of jurisdiction may be made to appear by matters dehors the record of the proceedings before such tribunals. Bodley v. Archibald, 33 W.Va. 229, 10 S.E. 392.
Prohibition--Consent of Parties.--A justice cannot take jurisdiction beyond limits fixed by law, under any pretext of acquiescence of the parties. The consent of parties cannot enlarge this jurisdiction, and any attempt to extend it beyond the legal limits will be checked by prohibition from the higher courts. James v. Stokes, 77 Va. 225.
Prohibition--Joint Contract--Partition of Shares.--Where a claim for an amount exceeding the limit of a justice's jurisdiction, is due to several persons jointly on a single contract, and is by them divided without the consent of the debtor so that the amount assigned to each is within the jurisdiction of a justice, and one or more of the creditors sue and obtain judgment, prohibition will lie after judgment and before satisfaction, to prevent the justice and the creditor from enforcing such judgment. Bodley v. Archibald, 33 W.Va. 229, 10 S.E. 392.
Prohibition--Separate Notes for Single Debt.--If four single bills for $ 20, each payable on different dates, be given for a single debt of $ 80, and after the last is due the obligee obtains warrants from a single justice to recover these several sums, the obligor may by prohibition from the superior court prevent the justice from proceeding, because he has no jurisdiction of the cases as all the notes constitute but one debt. Hutson v. Lowry, 2 Va. Cas. 42; James v. Stokes, 77 Va. 225.
Prohibition--Process Returnable in Another District.--When a justice of the peace makes his process in an action returnable before him in a district other than the one for which he was elected and in which he resides, he thereby does an act in excess of his lawful powers, and the writ of prohibition lies to restrain him from proceeding to try such action without his district. Johnston v. Hunter (W. Va.), 40 S.E. 448.
Prohibition--Usurpation of Jurisdiction by Division of Debt.--The jurisdiction of a justice of the peace in Virginia in 1877, was limited to $ 50. In order to give the justices jurisdiction of a debt of over $ 100 the appellant induced the appellee to cut it up into three bonds, each of which was less than $ 50, and so give jurisdiction to a justice. The limitations of law fixing the jurisdiction of justices are eminently wise and proper and founded upon sound principles of public policy and a writ of prohibition was properly awarded in this case where by the methods of the creditor, the justice usurped jurisdiction in fraud of the law. James v. Stokes, 77 Va. 225.
Prohibition--Does Not Lie When Justice Has Jurisdiction and Does Not Exceed Powers.--When a justice of the peace has jurisdiction of the subject-matter in controversy, and does not exceed his legitimate powers, a writ of prohibition should not be granted. West v. Rawson, 40 W.Va. 480, 21 S.E. 1019.
IV. PROCEDURE.
1. PROCESS INSTITUTING SUIT.
Must Be Signed by Justice Issuing It.--In issuing a summons to commence an action for the recovery of money, in order that the suit may be considered commenced or pending, the justice who issues the summons must sign it. Colborn v. Booth, 41 W.Va. 289, 23 S.E. 556.
States Two Causes of Action--No Grounds for Quashing.--If the summons in a case before a justice states a legal cause of action, and is in other respects sufficient, the justice ought not to quash it simply because it states two or more causes of action. Fouse v. Vandervort, 30 W.Va. 327, 4 S.E. 298.
Distress Warrant--Returnable to Justice.--A distress not being judicial process, need not be made returnable before a justice or court, but if it is made returnable to a justice, it is valid. Anderson v. Henry, 45 W.Va. 319, 31 S.E. 998.
Return--Amendment.--The return of service of a summons from a justice's court, defective in failing to show that the service was made on the agent of a corporation in the county of his residence, may be amended before the justice. Hopkins v. Balt., etc., R. Co., 42 W.Va. 535, 26 S.E. 187.
Sufficiency.--A summons issued by a justice of the peace requiring the defendant to appear before him at his office at a proper time therein specified to answer the complaint of the plaintiff " in a civil action for the recovery of money due on a judgment on the docket of--late a justice, to show cause why said judgment should not revive and be re-entered, and, execution issued thereon, in which the plaintiff will demand judgment for one hundred and sixty-two dollars and--cents exclusive of interest and costs," is sufficient. Meighen v. Williams (W. Va.), 40 S.E. 332.
May Be Amended.--A judgment may form the basis and subject-matter of a civil action before a justice of the peace, and such summons, having all the requisites of a summons in such case after striking out certain words, is amendable in that respect, and if the plaintiff files a complaint showing the object of the action to be the obtaining of a judgment, and not the revival of the former judgment, such summons is thereby amendable; that part of the summons which purports to set forth the cause of action being regarded as pleading in the action to that extent. Meighen v. Williams (W. Va.), 40 S.E. 332.
Objection for Defects--Motion to Quash.--The proper method to take advantage of any defect in the summons or in the return thereto in a justice's court, is by a motion to quash, because in that court there are no formal pleadings, and hence the question cannot be raised by plea in abatement, as it might and ought to be raised in the circuit court, when the suit is brought originally in that court. Layne v. Ohio, etc., R. Co., 35 W.Va. 438, 14 S.E. 123.
Objection for Defects--Special Appearance--Waiver.--In order to take advantage of any defect in the summons or return in a justice's court, the defendant must appear for that purpose only, and must so state in submitting the motion. If he appears generally he will be regarded as having waived all defects. Layne v. Ohio, etc., R. Co., 35 W.Va. 438, 14 S.E. 123.
Waiver--Plea in Bar.--If the defendant in a justice's court makes two motions, one for a continuance and the other to quash the return of the writ, and at a subsequent day to which it has been continued he appears, and without requiring the justice to act upon his motion to quash, files an informal plea in bar, and proceeds to trial, he will be deemed to have waived his objections to the writ. Layne v. Ohio, etc., R. Co., 35 W.Va. 438, 14 S.E. 123; Blankenship v. Kanawha, etc., R. Co., 43 W.Va. 135, 27 S.E. 355.
In Bastardy Cases--Any Justice in Any Township.--Under ch. 80 of the W.Va. Code 1868, any justice of any township might issue a warrant in a bastardy case, whether the woman, or defendant either, resided there or not. Tennant v. Brookover, 12 W.Va. 337.
2. EXAMINATION AND COMMITMENT.
Commitment--Authorized Not Compelled.--A justice of the peace may be authorized to commit, although they cannot be required or compelled to do so. Ex parte Pool, 2 Va. Cas. 276.
Commitment--Counts--Constitutional Law--An act of commitment is not such an act as is required to be exercised exclusively by the courts in art. 3, § 1, Const. U.S. Hence the act of Congress authorizing any justice of the peace within the United States to issue a warrant committing a sailor, who has deserted, until his vessel is ready to sail is not unconstitutional. Ex parte Pool, 2 Va. Cas. 276.
Felony--Previous Examination--Waiver.--In Virginia a person cannot be tried for a felony, without a previous examination of the offence of which he stands charged, before a justice, unless he waives such examination. See pp. 328 and 336 of Acts 1887-8; Butler v. Com., 81 Va. 159. See Chahoon's Case, 20 Gratt. 733, and Jackson's Case, 23 Gratt. 919.
May Direct Trial in Examining or County Court.--A justice who commits a prisoner for felony may direct him to be tried by an examining court called for the purpose, or by the county court at its regular term. Kemp v. Com., 18 Gratt. 969.
When Prisoner Cannot Demand Examination.--When an accused has been actually indicted in the county court for murder, and upon arraignment elects to be tried in the circuit court, he cannot when brought to trial there, demand as a matter of right that he be carried before a justice and be examined, and that the indictment be quashed. Jackson v. Com., 23 Gratt. 919.
3. PLEADINGS.
Oral or Written.--In a civil action before a justice of the peace the pleadings in the cause may be either oral or written, under Acts of 1881, ch. 8, and if they are oral a brief statement of the contents of the pleadings should be made upon the justice's docket. See § § 50 and 179; Poole v. Dilworth, 26 W.Va. 583.
Oral or Written. --Demand of Jury--Setting Aside Verdict.--In West Virginia before there can be a trial in a justice's court there must be a complaint either oral or written. Where the defendant demanded a jury, and after it was sworn and before any evidence was introduced the plaintiff made his complaint orally, it was held that as the summons made a demand for a specific sum of money, and the defendant controverted that claim, by demanding a jury, the verdict would not be set aside for the reason that the complaint was made after the jury was sworn. Straley v. Payne, 43 W.Va. 185, 27 S.E. 359.
Common-Law Forms of Actions Abolished.--Commonlaw forms of actions, in so far as justices' trials are concerned, are entirely abolished in West Virginia by § 49, ch. 50 of the Code. O'Connor v. Dils (1896), 43 W.Va. 54, 26 S.E. 354.
Defects in Venire Facias--Waiver by Appearance.--When the defendant in a justice's court appears and has the case continued, and the jury is adjourned to the time set for trial he will be held to have waived any irregularity in the writ of venire facias summoning them to the first trial, if it appears that he was not injured thereby. Greer v. Wilson, 38 W.Va. 100, 18 S.E. 380.
Joinder of Counts.--Plaintiff suing before a justice alleged in his first count that the defendant, a railroad company, negligently ran its train and killed the plaintiff's horse. The second count alleged that the defendant had bound itself by written contract to maintain the necessary cattle guards, and through its failure to do so the injury occurred. These counts were properly joined. Harrow v. Ohio, etc., R. Co., 38 W.Va. 711, 18 S.E. 926.
No Issue--No Reversible Error.--Where there has been a full trial before a justice as if on plea and issue, it is no reversible error that there was no plea or issue. White v. Emblem, 43 W.Va. 819, 28 S.E. 761.
Venire Facias for Jury before Summons Returned--Consent.--When either party demands a jury, it is error for the justice, without consent of parties, to issue a venire facias for such jury, before the summons to commence the suit has been served and returned, and the time fixed for the appearance of defendant has arrived. Greer v. Wilson, 38 W.Va. 100, 18 S.E. 380.
4. ATTACHMENT.
Jurisdiction--Levy.--In order that jurisdiction of an attachment be conferred on a justice the attachment properly issued must be levied on the property of the defendant. Colborn v. Booth, 41 W.Va. 289, 23 S.E. 556.
Jurisdiction--Affidavit.--An attachment may be sued out before a justice of the peace on the plaintiff's filing an affidavit at the commencement of the action or at some time during its pendency. Colborn v. Booth, 41 W.Va. 289, 23 S.E. 556.
Creates Lien from Levy.--An attachment from a justice's court creates a lien on leviable chattels only from its levy. Poling v. Flanagan, 41 W.Va. 191, 23 S.E. 685.
5. VERDICT AND JUDGMENT.
Judgment Invalid Based on Defective Process.--Service of summons in an action before a justice against a domestic railroad corporation upon its president must be in the county in which he resides, and the return must show that fact, else it is invalid. A judgment based on a return of service not showing that fact, there being no appearance, is void. Taylor v. Ohio, etc., R. Co., 35 W.Va. 328, 13 S.E. 1009.
Action for Personal Property--Verdict.--A verdict in an action for the recovery of personal property before a justice must find the value of the property, and of each article sued for, as in the action of detinue, and the judgment must do so. White v. Emblem, 43 W.Va. 819, 28 S.E. 761.
Action for Personal Property--Judgment.--A judgment in an action before a justice for the recovery of personal property, or in the formal action of detinue, which is only for the sum found by the verdict as the value of the property, is erroneous. It should be for the property, if to be had, and if not, then for its value. White v. Emblem, 43 W.Va. 819, 28 S.E. 761.
Unlawful Detainer--Verdict Not Set Aside for Want of Issue.--In an action of unlawful detainer before a justice, a verdict, on full trial on the merits, will not be set aside because there was no plea and issue. The statute puts in the plea of " not guilty." Simpkins v. White, 43 W.Va. 125, 27 S.E. 361.
Illegal Judgment Nunc Pro Tunc.--Two justices presided at a trial at which a verdict was rendered, but no judgment thereon was entered. Nearly two years afterwards, without notice they undertook to enter judgment upon the verdict nunc pro tunc. Such entry was unauthorized and illegal. McClain v. Davis, 37 W.Va. 330, 16 S.E. 629.
When Judgment Cannot be Enjoined and Reversed.--Under § 13, art. 3, of the Constitution of West Virginia, providing that no fact tried by a jury shall be retried except as at common law; and § 91, ch. 50 of the Code declaring that no more than one new trial shall be granted by a justice in any case, equity cannot enjoin and reverse a judgment rendered on a verdict in the second trial of a cause in the justice's court, the issue being one of law and of fact. Ensign Mfg. Co. v. McGinnis, 30 W.Va. 532, 4 S.E. 782.
When Action on Judgment Barred.--Section 10, ch. 139, W.Va. Code 1887, providing that an action may be brought on a judgment, on which no execution is issued within two years, at any time within ten years next after the date of the judgment, applies to judgments rendered by justices; and their judgments are not barred where ten years has not elapsed. Livesay v. Dunn, 33 W.Va. 453, 10 S.E. 808.
6. CONTINUANCE.
Oath to Just Defence--Diligence.--Section 58, ch. 50, W.Va. Code of 1887, provides that a defendant in an action before a justice, upon making oath that he has a just defence to the action, may demand a continuance as of right. Section 60 provides that either party may have a continuance on showing that he cannot safely proceed with the trial for want of some material evidence, and that he has used due diligence to procure the same. A defendant who does not make the oath prescribed by § 58, but moves for a continuance on the ground of absence of a witness and want of counsel, must show that he has used due diligence to secure such witness. Mullinax v. Waybright, 33 W.Va. 84, 10 S.E. 25.
7. NEW TRIAL.
Construction of Section 91, Chapter 50, Code 1891.--The provisions in sec. 91, ch. 50, of the Code of W.Va. 1891, that, " no more than one new trial shall be granted by a justice in any case," is construed to mean that not more than one new trial shall be granted either party in any suit. Dickey v. Smith, 42 W.Va. 805, 26 S.E. 373.
No New Trial after Thirty Days from Judgment.--Where more than thirty days had elapsed from the date of a judgment, a justice of the peace had no jurisdiction to award a new trial (§ 2946, Code of 1887); and being without jurisdiction, it was proper for a writ of prohibition to restrain him to issue from the circuit court of that county. Burroughs v. Taylor, 90 Va. 55, 17 S.E. 745.
Motion for Overruled--Certiorari.--When a justice renders judgment on a verdict on one day, and on the next day a motion for a new trial is made and overruled, the 10 days allowed for a certiorari begins to run on the latter day. Straley v. Payne, 43 W.Va. 185, 27 S.E. 359.
8. RECORD AND DOCKET.
Entries Informal.--By § 180, ch. 50 of the Code of 1891, all formalities in the entries of a justice's judgment are dispensed with, and the same is sufficient if the truth be stated so as to be intelligible. Davis v. Trump, 43 W.Va. 191, 27 S.E. 397.
Statutory Provisions Directory--Omission.--The W.Va. Code 1891, ch. 50, § 178, which directs that the justice shall render on his docket the amount of money which the plaintiff demands, is merely directory, and its omission cannot be cause for reversal. Straley v. Payne, 43 W.Va. 185, 27 S.E. 359.
Transcript Not Conclusive.--A justice of the peace is not required to make other than a brief entry on his docket of the return of a summons, hence the transcript of his docket, as to a return of a summons, is not so conclusive as to render a judgment void for the reason the return as set out in the transcript is defective. Moren v. American, etc., Co., 44 W.Va. 42, 28 S.E. 728.
Evidence Admissible to Prove Fact Omitted.--Where the docket of a justice omitted to enter a proceeding which should have been entered, evidence may be admitted to prove the fact of such proceeding. Anderson v. Henry, 45 W.Va. 319, 31 S.E. 998.
9. EXECUTION.
Void When No Judgment.--An execution, purporting to be issued upon the judgment of a justice, when there is in fact no such judgment, but simply a verdict of a jury, is void, and the justice should quash such execution upon notice and motion. Lowther v. Davis, 33 W.Va. 132, 10 S.E. 20.
Cannot Be Served by Constable--Exception.--It was formerly held that an execution issued by a justice of the peace from the court of a county or corporation in Virginia could not be served by a constable, except in the city of Richmond. Stokes v. Perkins, 4 Rand. 356.
Purporting to Be Issued in Wrong County--When Valid.--An execution issued by a justice of the peace of one county is valid, though it purports to be issued in another county, if in fact it was issued in the proper county. Davis v. Davis, 2 Gratt. 363.
V. DISQUALIFICATION AND REMOVAL.
By Superior Court Not by Executive.--It was held in Edmiston v. Campbell, 1 Va. Cas. 16, that the governor could not remove a justice of the peace from office, but that he might be removed by the judgment of a superior court of law.
Acting as Coroner No Disqualification from Sitting on Examining Court.--A justice of the peace who has acted as coroner in taking the inquest upon the dead body of a man, whom the prisoner is charged to have murdered, is not thereby disqualified from sitting as a member of the examining court. Forde v. Com., 16 Gratt. 547.
Conviction of Felony Forfeits Office--Effect of Pardon.--A conviction of a justice of the peace for malicious stabbing is a felony, and although pardoned after being sentenced and confined in the penitentiary, it is a forfeiture of his office, and he is incapacitated from acting under his commission. The pardon did not avoid the forfeiture nor restore his capacity. Com. v. Fugate, 2 Leigh 724.
Removal from State--On Return Cannot Resume Office.--A justice of the peace leaves the state with intent to establish his residence in another state. He remains there nine months, but does not establish his permanent home there, and then returns and resumes his former residence in this state. It was held that he has no right to resume the exercise of his office of justice of the peace. Poulson v. Justices, 2 Leigh 743.
Removal from County--Cannot Be Invested with Office by Mandamus.--The removal of a justice of the peace and his family, from his county to another, and remaining there for several years although he afterwards returns, is either an abandonment, virtual resignation or forfeiture of his office, and whether void, or only voidable, by a judicial proceeding eventuating in a judgment of amotion, no mandamus ought to issue to invest him with office not belonging to him if void, or which might be taken away from him if voidable. Chew v. Justices, 2 Va. Cas. 208. See Amory v. Justices, 2 Va. Cas. 523.
Incompatible Office--Deputy Clerk.--The offices of a deputy clerk of a county court, and of justice of the peace of the same county, are incompatible offices, so that they cannot both be held at the same time. Amory v. Justices, 2 Va. Cas. 523.
Incompatible Office--Office under United States Government--Resignation.--By the Acts of 1821-22, ch. 26, if a justice of the peace is appointed and accepts an office under the United States government, or any other incompatible office, he thereby vacates his office of justice of the peace and his resignation of the other office will not restore him to the office of justice, nor can he ever lawfully exercise this latter office without a new commission. Com. v. Sherrard, 4 Leigh 643.
Incompatible Office--High Sheriff.--But although the office of deputy sheriff is incompatible with the justice of the peace, by statute in Virginia the office of high sheriff is not incompatible with it. The acceptance of the office of deputy sheriff vacates the office of justice. Com. v. Tate, 3 Leigh 802.
Incompatible Office--Coroner--Acts Valid Prior to Disqualification. --In Maddox v. Ewell, 2 Va. Cas. 59, the question was raised but not decided, whether the acceptance of the office of coroner, by a justice of the peace, was a forfeiture of his office. But the court held that it did not vacate his subsequent acts as justice, which were done before his disqualification was established by some proper judicial proceeding instituted for that purpose.
Misbehavior in Office.--A justice of the peace may be amerced and removed from office, upon an information against him in a superior court of criminal jurisdiction, for misbehavior in office. Com. v. Alexander, 4 H. & M. 522.
Misbehavior in Office. --Sitting on Bench While Intoxicated--Amotion.--Sitting on the bench while in a state of intoxication from drinking spirituous liquors, and rendered thereby incompetent to discharge the duties of the office with propriety, decorum and discretion, is misbehavior by a justice of the peace, for which a superior court may render judgment of amotion from office against him. Com. v. Mann, 1 Va. Cas. 308; Com. v. Alexander, 1 Va. Cas. 156; Com. v. Alexander, 4 H. & M. 522.
Justice Acting as Coroner--Certification of Commitment.--A justice of the peace acting as coroner, and having as coroner committed a person to jail for a felony, is not disqualified from certifying the fact of such committal as a justice of the peace. Wormeley v. Com., 10 Gratt. 658.
Issuing Warrant Falsely and Maliciously.--A justice of the peace, who maliciously and falsely issued a warrant commanding a surveyor of a road to appear before him, and answer a complaint for not keeping the road in repair, and adjudged him to pay the cost, when in fact there had never been any complaint made, but the justice falsely used the name of the complainant, was held to be guilty of malfeasance in office, and indicted, fined, and removed from office. Wallace v. Com., 2 Va. Cas. 130.
Justices Interested with Many Others in Public Landing.--Upon an application to establish a public landing, the viewers reported that the place viewed would be of great convenience to the public, as a list containing a great many names had been shown to them, who would be benefited by it. Two of the justices of the county were on the list, and when the order awarding the writ of ad quod damnum was made they were on the bench, and one of them was on the bench when the landing was established. It was held that this constituted no legal objection to the landing, and the justices were not disqualified. Muire v. Falconer, 10 Gratt. 12.
VI. PROCEEDINGS AGAINST.
Indictment--Allegations. --An indictment against a justice in the county court for misbehavior in office must distinctly charge that the act imputed as misbehavior was done with corrupt, partial, malicious or improper motives, and above all with knowledge that it was wrong. Jacobs v. Com., 2 Leigh 709.
Indictment--Corrupt Barter of Votes--Misdemeanor.--A corrupt agreement between two justices of the peace, by which one agrees to vote for a certain candidate for office in consideration of the other's voting for another candidate, is not an offence within the statute against buying and selling offices, but such agreement is a misdemeanor at common law, for which an indictment will lie. Com. v. Callaghan, 2 Va. Cas. 460.
False Issuance of Search Warrant--Trespass Vi et Armis.--Trespass vi et armis, and not case, is the proper action, against a justice of the peace, for maliciously and corruptly, with intent to injure and oppress, and without probable cause, issuing a search warrant, by virtue whereof a constable forcibly enters the plaintiff's close, and takes and carries away from his possession certain slaves which he held as his property. Muse v. Vidal, 6 Munf. 27.
Taking Defective Bond--Misfeasance--Trespass on the Case.--Where a defective bond is taken from a guardian and his sureties by a justice of the county court who appointed him, so that the sureties are not bound for the defaults of the guardian, equity has no jurisdiction to enforce the liability imposed upon the justice by § 5, ch. 108, 1 Rev. Code, but the action should be trespass on the case for misfeasance in office. Ausitn v. Richardson, 1 Gratt. 310.
Proceedings in County Courts--Removal--Unconstitutional.--Under the provisions of the W.Va. Constitution, art. 8, § 24, county courts are authorized to exercise such other powers and perform such other duties, not of a judicial nature, as may be prescribed by law. Section 7, of ch. 7 of the Code 1891, so far as it authorizes the county court to hear charges preferred against a justice of the peace, after having him summoned, and to remove him when a proper case is made, is judicial in its nature, and to that extent the section is unconstitutional. Arkle v. Board of Comm'rs, 41 W.Va. 471, 23 S.E. 804.
Malicious and False Issuance of Warrant.--Where a justice of the peace maliciously issued a warrant commanding a person to appear before him and answer the complaint of another person, and adjudged him to pay the cost, when in fact said complaint was never made, he was guilty of malfeasance and was indicted and fined. Wallace v. Com., 2 Va. Cas. 130.
[*]For monographic note on Justices of the Peace, see end of case.