Dryden v. Swinburn

15 W. Va. 234, 1879 W. Va. LEXIS 25

Opinion

Green, President,

delivered the opinion of the Court :

Certain preliminary questions must be disposed of first in this case. The first of them is : Has this court any jurisdiction in this case under our Constitution? The third section of Article 8 of our Constitution provides that the Supreme Court of Appeals “shall have appellate jurisdiction in civil cases, when the matter in controversy, exclusive of costs, is of greater value, or amount,' than $100.00.” Under this clause has this Court jurisdiction in any case where the matter in controversy in the inferior court was an office ? Or does the Constitution confer jurisdiction only when the subject of controversy is property which by the law is the subject of sale or purchase ? The form or character of the remedy or proceeding in the inferior court cannot affect the jurisdiction of this Court under this clause of the Constitution. No matter what may be the form of the controversy, if the decision of the inferior court, if erroneous, has caused an injury to the plaintiff in error, or appellant, to an amount greater than $100.00, this Court will review the case at his instance. And as the injury to the party who brings the case before this Court, is the basis of our jurisdiction, it may happen that one party may have a right to have a case reviewed which the other may not. Thus in Lee v. Lee, 8 Pet. 44, it was held that on a petition for freedom the matter in dispute, so far as the petitioner was concerned, was his freedom, which was not susceptible of a pecuniary valuation, and therefore no w-rit of error would lie to a judgment against the petitioner, such writ not being allowed by the statute, “unless the matter in dispute should be of the value of $1,000.00 or upwards.” But if the judgment had been in favor of the petitioner, a writ of error would have lain in favor of the defendant, if the slave had been worth over $1,000.00; for the matter in dispute, so far as the defendant was concerned, was the value of the slave.

Is the office of clerk of a court, the subject of dispute in this case, like freedom incapable of pecuniary valuation ? It is true it cannot be sold or purchased; but this is not because it is incapable of being valued pecuniar-ily, but because the law from public policy declares that this office shall be inalienable. The law of Virginia formerly permitted the office of sheriff to be sold; and it was a very common thing to sell this office, and it had a pe cuniary value not more difficult of ascertainment than many other species of property. If an office has a salary attached to it, its value may be more readily ascertained; but in principle there can be no difference between an office having a salary attached to it and one that has not, but whose value consists in the fees of the officer. The sheriffalty, when it was authorized to be sold, was property having a value as such, though no salary was attached to the office. An office is a franchise, and as such property; and its value cannot depend upon whether the law from motives of public policy forbids or permits its sale. Real estate is property, and as such has a value, though at one time from public- policy the common law forbade its sale. The matter in controversy must have a value which can be proved and calculated in the ordinary modes of business transactions, in order to give under this clause of our Constitution appellate jurisdition to this court. If the matter in controversy is incapable of this sort of valuation, this court under this clause of the Constitution can not take appellate jurisdiction.

A controversy about the custody of an infant child, for instance, is not capable of this sort of valuation ; and if there were no other clause of the Constitution giving this court appellate jurisdiction in such a case, such jurisdiction would not be conferred by this clause. See Barry v. Mercein et al., 5 How. 103; De Kraft v. Barney, 2 Black 714. But a controversy about an office is capable of this sort of valuation, and that too, whether a salary be attached to the office or its value arises from fees of office. Thus the mayoralty of Georgetown was held by the Supreme Court capable of this sort of valuation, and therefore, where the appellate jurisdiction of that court depended on the value of the matter in dispute, it took jurisdiction in a controversy about this office. See United States ex-relatione Crawford v. Addison, 22 How. 174. It is true this office had a salary attached ; but when the proceedings in that cause were instituted, and when the case was decided, the salary either due or earned by tbe services performed was insufficient in amount to give the court jurisdiction. The court regarded the office as the subject of controversy,¡and estimated its value, without reference to whether the services had been performed or not, as giving the court jurisdiction. The view that the office was of no value, but only afforded compensation for labor and services to be thereafter performed, was repudiated by the court in this decision, as I conceive.

In the Columbian Insurance Co v. Wheelright et al., 7 Wheat. 534, where the controversy was about the office of director in the Columbian Insurance Co., the court decided that it had such a value as might give the court appellate jurisdiction; and its value must be ascertained by the amount of the salary attached to the office. This is obviously the proper mode of estimating the value of a salaried office. But if no salary is attached to an office, it may nevertheless have a pecuniary value, to be estimated at what would be given for it, if the policy of the law permitted its sale.

It is insisted that the principles laid down in Ritchie v. Munroe & Forest, 2 Pet. 243, are not in accord with these views. This was a controversy about who was entitled to be appointed guardian. The amount of the estate of the minor was probably about $5,000.00, as the penalty of the guardian’s bond was $10,000.00. The matter in dispute had to be of the value of $2,000.00 to give the Appellate Court jurisdiction. The question discussed at the bar seems to have been, not whether the office of guardian was such a subject-matter of dispute' that the sort of pecuniary value could be attached to it such as was necessary to give the Appellate Court jurisdiction, but rather whether in that case “ the amount in controversy was, or was not, sufficient to authorize an appeal.” The appellants counsel contended, “ that the right of appeal was complete, as the property ¡which would come into the hands of the guardian would exceed $2,000.00.” The appellee’s counsel insisted “ that the pecuniary benefit of the appellant from the estate could not under any circumstances amount to $2,000.00.” When the points discussed are considered, I think there is nothing in the opinion of Chief Justice Marshall, from which the inference can be di’awn that he thought that in no case would on appeal lie when the matter in controversy was the office of a guardian; but that he thought it would lie, if the benefit of this office pecuniarily to the appellant was shown to be sufficient. He says : “ In the present case a majority of the Court are of opinion that the Court has no jurisdiction in the case; the value in controversy not being sufficient to entitle the party by law to claim an appeal. The value is not the value of the minor’s estate, but the value of the office of guardian. The office of guardian is of no value, except so far as it affords a compensation for labor and services thereafter to be earned.”

As I understand this opinion, it very properly held that the office of guardian has a value, but that the proper mode of ascertaining this value was not to put it at the whole value of the minor’s estate, but its value is the worth of the right to future compensation for labor, to be performed. In that particular case it was obvious this right was not worth $2,000.00. As under this clause of our Constitution appellate jurisdiction is given to this court, where the matter in controversy exclusive of costs is of greater value than $100.00, and as this jurisdiction is entirely independent of the form of action, it must happen in many cases from the form of the action that the value of the matter in controversy is not disclosed by the record. In such cases it must follow, that it may be shown by evidence aliunde, as by affidavits filed in this court "or a certificate of the value in controversy according to the proofs in the court below; and either of these methods may therefore be resorted to in order to show the value of the matter in controversy. See Pratt v. Fitzhugh et al., 1 Black 271; Sparrow v. Strong, 3 Wall. 97; ex parte Bradstreet, 7 Pet. 634; United States v. Brig Union, 4 Cranch 216. In the present case the record expressly states, that “ it was proven to the court that the office of clerk of the cireuit court of Kanawha county is of greater value than $100.00” How it was proven does not appear; but the contract made between W. E. G. Gillison and the plaintiff shows, that its clear monthly value was $50.00, which in the six years, the time for which the clerk is elected, would make its value $3,600.00. We must therefore regard the value of the matter in controversy as more than $100.00; and this Court has therefore appellate jurisdiction in the case.

It remains to enquire how this appellate jurisdiction in such a case as this must be evoked, whether by writ of certiorari or by writ of error. According to the general rule the writ of error is the appropriate remedy, when the proceedings are according to the course of common law, and- the writ of certiorari when the proceedings are of a different character. Powell on Appellate Proceedings, ch. 8, §5, p. 350. The proceedings before the county-court were purely statutory and of a character entirely unknown to the common law; and unless the mode of supervising them by the circuit court is controlled by statute, it would according to this general rule be by writ of certiorari. But it is insisted by the appellant, that as the writ of certiorari is a common law writ, the proceedings in this case before the circuit court, brought there by this writ were common law proceedings, and therefore according to this general rule, the review of those proceedings in the circuit court must be by writ of error from this court and not by certiorari. This position receives some countenance from the case of Dowland v. Slade et al., 5 East 272, which was a writ of right originally brought in the court of the manor and forest of Gillingham, in which there was a judgment for the demandant, and the defendants presented a writ of false judgment returnable in the court of common pleas, assigning numerous errors. The court of common pleas reversed the judgment of the manor-court. And it was held a writ of error lay to the King’s bench from the court of common pleas. But in that case the judgment of the court of common pleas was a judgment prescribed by the common law. On the other hand Melvin v. Bridge, 5 Mass. 205, was a case of a criminal prosecution originating under a statute before a justice. The penalty by statute was on conviction not only a fine, but a forfeiture of his fishing nets used in violation of’ law. ’ An appeal was taken to the court of common pleas and the judgment before the justice reversed, and the defendant acquitted. The case was taken to the Supreme Court by writ of error, who quashed thefwrit, holding that a writ of error does not lie when the proceedings in any stage of them are not according to the course of common law, and the judgment given by the statute was not a common law judgment. But we need not decide whether at common law a writ of error in such a case as this would lie from the judgment of 'the circuit court of Kanawha county to this Court, because, as I understand our statute, a writ of error in such a case is authorized by statute-law.

The act of the Virginia Legislature, passed April 16, 1831, organizing circuit courts in each county, after allowing to them appeals as of right in certain specified cases, says: “And in all other cases wherein any person or persons shall think himself, herself or themselves aggrieved by any judgment, proceeding or order oí any county or corporation-court (other than decrees, proceedings and orders thereof in chancery) such judgment, proceeding or order being final and in no way interlocutory, the said person or persons may prefer a petition for a writ of error or supersedeas to the Circuit Superior Court of Law and Chancery, &c.” See supplement to R. Code, ch. 109, §30, p. 145. Though the proceeding in the county-court was purely statutory and not according to the course of common law, under this statute, if final, it is obvious that it might be reviewed by a writ of error, if it was not a chancery proceeding. And I do not suppose that any final judgment or order of tbe county-court could be reviewed by tbe circuit court by writ of certiorari, merely because tbe proceedings in it were not according to tbe course of tbe common law.

The [same statute, §31, p. 147, provides for writs of error or supersedeas from certain specified judgments, decrees, orders and sentences of the circuit courts to the Court of Appeals, and among'them “any other judgment, decree,|sentence or order in any other case, wherein by the laws then in force writs of error or supersedeas lay from the Court of Appeals’to the former Superior Courts of law.” The law in reference to writs of error or super-sedeas from the Court of Appeals to these former Superior Courts of Law, is found in ch. 69, §14 of 14. Code of 1819, vol. 1, p. 231, and is : “Any party thinking himself aggrieved by the judgment of said courts, may obtain a writ of error thereto from the Court of Appeals, not of right but at the discretion of the Court.” This seems to give a writ of error to any and all judgments of the circuit court to the Court of Appeals. The language is broad and would include a judgment rendered in a statutory proceeding and not according to the course of the common law, and applies as well to judgments, which by the common law could be reviewed only by writs of certiorari, as to those which could by the common law be reviewed by writs of error.

This I apprehend remained our law, both witli reference to judgments of the county and circuit courts, till the formation of this State ; for though the language of the law was changed in the Code of Virginia of 1849, yet its meaning in this respect was not changed. This Code provided in ch. 182, §2 p. 682, that “a person who is'a party to any civil case wherein there is a final judgment or order may present a petition for a writ of error or supersedeas to tbe judgment or order” except in a few specified oases which were not to be reviewed. This section applied equally to judgments of the county or circuit court, and its language is broad enough to include every judgment or order, including one in a statutory proceeding, not according to the course of the common law. Thus under the Virginia statutes the writ of certiorari was unnecessary to be resorted to, as a general rule, in case of any final judgment or order of either a circuit court or county-court, at least in a controversy to which there were parties; but they might, and I suppose as a general rule must, be reviewed only by writ of error or supersedeas. And accordingly the Virginia Reports show no case of a judgment'of the county or circuit court reviewed by writ of certiorari. This mode of review has been attempted in some such cases; but it has been disapproved. See Hay’s adm’r. v. Pistor, 2 Leigh 707, Tankersley v. Lipscomb, 3 Leigh 813.

In the first Constitution of this State the county-courts ceased to exist. And while it was in operation the writ of error also was unknown, the mode adopted by statute for reviewing cases being appeals of right. The mode of taking appeals to the Supreme Court of Appeals was prescribed by statute. See Code of W. Va., ch. 135, p. 639. By the second Constitution of this State county-courts were again recognized as a part of our judiciary. See article 8, Session Acts of 1872-3, p. 25. On December 21, 1872, the Legislature passed an act regulating appeals, writ of error and supersedeas. The first section of this act provides that “a party to a controversy in any circuit court may obtain a writ of error or supersedeas to the Supreme Court of Appeals from a judgment thereon. First, in civil cases wherein the mattei in controversy exclusive of costs is of greater value or amonnt than $100.00 wherein there is a final judgment,” and in certain other cases not necessary to specifiy. This law was amended February 16, 1877; but this first section so far as above quoted was unaltered except that the words “wherein there is a final judgment” are omitted. See Acts of 1872-3, ch. 44, §1, p. 52. There is no provision in the Act of 1872-3, or in any amendment of it, designating the cases in which a writ of error may be taken from a judgment of county-court. And the act organizing the circuit courts under our new Constitution is very different from that organizing the circuit courts of Virginia before referred to. Our act, ch. 15 of Acts of 1872-3, p. 43, provides that “The circuit courts shall have the supervision of all proceedings before the county-courts and other inferior tribunals by mandamus, prohibition and certiorari. 'They shall have appellate jurisdiction upon petition and assignment of error in all cases of judgments, dcrees and final orders rendered by the county-court, and such inferior courts of record as may be hereafter established, under the pro visions of the 12th se'ction of article 8 of the Constitution, where the matter in controversy, exclusive of costs, is of greater value or amount than $20.00, except in certain specified cases,” It will be observed that this act does not, as the Virginia act organizing the circuit court does, specify a writ of error as the mode of taking up cases to be reviewed. It is silent on this subject; though §15 of this act provides by whom writs of error, appeals and supersedeas are to be awarded.

As the Virginia law alway has allowed a writ of error or supersedeas to any judgment of a circuit court in a controversy in which there are parties which can be reviewed by the Appellate Court, I am forced to conclude that such is also our law under this statute, though it may be otherwise when the judgment is rendered in a case when there are no formal parties to the controversy in the circuit court. The language of our statute authorizing a writ of error or supersedeas is broad enough to include every such case; and I conclude every such case, even when a writ of certiorari would have been, by the rules of the common law, the mode of bringing the case before the Appellate Court, may be brought here by writ of error. . But our statute being silent as to the cases in which the writ of error or supersedeas may be awarded when a judgment of the co unty-court is to be reviewed, I conclude that the common law mode of review is in, force in tills State, when a judgment of a county-court is f° be reviewed; and therefore when a judgment of a county-court is reviewed by the circuit court, it must be done by writ of certiorari in such cases as by the common law could only be reviewed in that maimer.

The judgment rendered by the county-court in the case before us was one of those cases, it being a novelease authorized by statute, the proceedings in which were all regulated by statute and were, of a kind which was unknown to the common law and not according to its course. I conclude therefore that the circuit court properly reviewed the judgment of the county-court in this case on writ of certiorari; and that the review of ihe judgment of the circuit court is properly brought before us for review by a writ of error. In reaching this conclusion I have omitted to review the position of the counsel for the appellees in which they insist that the latter part of section 3 of Art. VIII. of our Constitution so qualifies and restricts the first portion of this article which gives appellate jurisdiction to this court “ in civil cases when the matter in controversy exclusive of costs is of greater value or amount than $100.00,” as to exclude this court from all appellate jurisdiction in every case where the proceeding of the court below was on a writ of certiorari. The language of this third section is:

“ The Supreme Court of Appeals shall have appellate jurisdiction in civil cases when the matter in contro versy, exclusive of costs, is of greater value or amount than $100.00; in controversies concerning the title or boundaries of land, the probate of wills, the appointment or qualification of a personal representative, guardian committee or curator; or concerning a mill, road, ferry, or landing; or the right of a corporation or county to levy toll or taxes; and also in cases of quo warranto, habeas corpus, mandamus and prohibition and in cases involving freedom or the conslitutionalty of a law. It shall have appellate jurisdiction in criminal cases where there has-been a conviction for felony or misdemeanor in the circuit court, and when a conviction has been had in án inferior court and been affirmed in the circuit court.”

This section is by the appellee’s counsel contrasted with the 12th section of Article VIII of our Constitution which says: “ The circuit courts shall have appellate jurisdiction upon petition and assignment of error, when the matter in controversy, exclusive of costs, is of greater value or amount than $20.00 ; in controversies concerning the title or boundaries of land ; the probate of wills, the appointment or qualification of a personal representative, guardian, committee, or curator ; or concerning .a mill, roadway, ferry or landing, or right of a corporation or county to levy tolls, or taxes; and also in cases of habeas corpus, quo warranto, mandamus, prohibition and certiorari and in cases involving freedom, or the constitutionality of a law; and in all cases of conviction under criminal prosecutions in said court.”

By this clause appellate jurisdiction is expressly given to the circuit court in all cases of certiorari; and the ap-pellee’s counsel insists that as in the third section of Article VIII of the Constitution above quoted, appellate jurisdiction is given the Supreme Court in all the cases of extraordinary remedies named in this eighth section excepting only certiorari, which is omitted in the third section, that it is thus-apparent that the third section did not intend to confer on the Supreme Court appellate jurisdiction in any ease of certiorari. This, it seems to me, is clearly a nonsequitur. It is obviously true it does not, as the VIII Article did, confer appellate jurisdiction in every case of certiorari, but the first portion of section 3 had expressly conferred on the Supreme Court appellate jurisdiction “in civil cases where the matter in controversy exclusive of costs is of greater value than $100.00.” This clearly included cases of certiorari where the matter in controversy, exclusive of costs, exceeded $100.00. For a certiorari is certainly a civil case. And while the rest of the third section confers on the Court appellate jurisdiction in certain specified cases, though the amount in controversy be less than $100.00, there is certainly in it nothing to take from the Court appellate jurisdiction in all civil cases where the amount in controversy, exclusive of costs, including certiorari cases, exceeds $100.00.

The difference between the eighth and third sections is that the eighth section confers appellate jurisdiction in all certiorari cases, while the third section only confers appellate jurisdiction when the amount in controversy exceeds, exclusive of costs, $100.00. The latter clauses of both sections enlarge the appellate jurisdiction of the respective courts. This enlargement is quoted under the eighth, then under the third section. Butn either of the¡m can be interpreted to limit or restrict the appellate jurisdiction conferred expressly by the first clause in each section. This seems to me the obvious construction of these provisions of our Constitution, that it is the true construction is rendered obvious from comparing the third section of Article VIII of our Constitution, with the 11th section of Article VI of the Constitution of Virginia, found in the Code of Virginia of 1860, p. 53. The provision of our Constitution conferring appellate jurisdiction on the Supreme Court was obviously taken from this provision of the Virginia Constitution, the language used being almost the same. Its language is:“It shall have appellate jurisdiction except in certain cases,” and then it proceeds: “It shall not have jurisdiction in civil cases where the matter in controversy, ex-clqsive of costs, is of less value or amount than $500.00, except in controversies concerning the title or boundaries of land, the probate of a will, &c.” using the language of our Constitution and omitting, as it does, cer-tiorari. This conferred jurisdiction generally in civil cases where the amount in controversy exceeded a certain sum, except that in certain cases specified, the amount in controversy need not exceed the named sum. Our Constitution I think obviously has the same meaning- e

The next enquiry is : Did the circuit court err in granting a writ of certiorari on a petition sworn to without giving notice to the opposite party and without a rule to show cause against its being granted ? The practice in different States is not uniform. Thus in Massachusetts it is discretionary with the court, to which a petition for a writ of certiorari is presented to review the proceedings of an inferior court, to direct or not, as may be deemed proper, notice to be given to the opposite party in interest before acting on the petition or granting the writ. But by their practice notice to show cause against the issuing of the writ must be given to the tribunal to which the writ, if granted, will be addressed. See Rutland v. County Commissioners, 20 Pick. 71, Farmington River Water Co. v. County Commissioners, 112 Mass. 206; Tewksberry v. County Commissioners, 117 Mass. 563; Worcester & Nassau Railroad v. Railroad Commissioners, 118 Mass. 563. But this practice does not appear to have prevailed generally. Thus in Gardner v. the Commissioners of Highways of the town of Warren, 10 Hun. 183, Cheppin, Judge, says in delivering the opinion of the court : “Motions are frequently made both at general and special terms for the allowance of common law writs' of certiorari. My own recollection is, that such motions have generally been made ex parte. It is not necessary to give notice of the application to the court for the allowance of the writ.”

The more general rule adopted seems to be that it is discretionary with the court, to whom an application for the writ of certiorari is made, to require notice to the parties interested, or to have a rule issued to show cause against the issuing of the writ, as in the particular ease it may or may not be deemed necessary. Thus the rule in North Carolina is thus stated by Henderson, Judge, in Cherry v. Slade, 2 Hawks 402. “ A certiorari is granted on facts uncontroverted or apparent on the record or papers before che court; but a rule is proper when the application is made on facts not so apparent.” But as in North Caro lina they “in all cases permit the facts to be controverted when the certiorari is returned/’ (See Henderson, Judge, 2 Hawks 402), it is there more usual to require a rule before the writ of certiorari is awarded; but this is not deemed essential. But as a new trial of the case is then had on the writ of certiorari, this trial will not be proceeded with, till the adverse party has had an opportunity to obiect that the writ had been improvidently awarded. Chambers v. Smith, 1 Haywood 424.

In the case of State v. Morris Canal, 7 Halst. (12 N. J. Law) 420 the court requested an argument of this point. The' counsel for the party asking the writ without notice or rule said, that in England notice was required only in two particular cases. One of these cases was when the certiorari asked was to remove an indictment out of London or Middlesex into the King’s Bench, see 5 Yin. 351 (H.) pl. 7; Raym. 74. The other was under 12 Geo. II., ch.18, §5, requiring notice of six days in certain cases 4 Vin. 353; 1 Bac. 367 (D.); 5 T. R. 279. The opposite counsel relied on 18 Eng. C. L. Rep. 278. The court decided that a notice was not necessary. It said : “We are of opinion however, that the court may in their discretion grant a certiorari in the first instance upon motion, or if from the peculiar circumstances of the case they should consider it necessary, direct a rule to show cause. TJris is a novel ease of great importance, many questions may arise as to the most correct mode of proceeding, the court therefore thinks it proper to direct a rule to show cause.”

The views of the law on this point as laid down bjr the Supreme Court of New Jersey seem to me just and reasonable. Applying the law to the case before us, I do not think the court erred in awarding the writ of cer-tiorari in this case without notice to Thomas Swinburn, and without a rule to show cause. The petition was sworn to/and)a full copy of the record of the proceedings in the county-court to be reviewed accompained the petition. This/ecord was very brief and simple and presented mere ly a law question to be considered by the court. I do not see that a notice to Swinburn or a rule on the county-court before the issuing of the writ would have served any useful purpose. It would only have produced delay in a case where the prompt action of the court in finally determining the matter in controversy was peculiarly important to all parties. Neither the county-court nor Swinburn from the nature of the case, if notified, could have presented any matter to the court to affect its judgment on the question, whether the writ of certiorari should be awarded, which the petition did not itself present. It was however necessary to notify Thomas Swinburn of the pendency of these proceedings before the court acted upon the writ of certiorari after its return. He was a party who was deeply interested in the result of this writ, and it was essential to notify him of the proceeding, though he was not a formal party to it. See Johnston, Supervisor v. Hanna, 1 Wright (Ohio) 138; State v. Joseph Giberson, 2 J. S. Green (14 N. J. ) 388.

It is claimed in this case that the summons, directing Thomas Swinburn to be notified to answer this writ and show cause why the prayer of the petition should not be granted, was not properly served. As Swinburn was not a formal party to this proceeding, I doubt whether the circuit court ought to have considered or regarded any mere formal or technical objections to the mode of the service of this process. It is very probable that to sustain the proceeding it would be only necessary to show that he had notice of its pendency; and though the service of the summons had been technically defective, yet if he had such” notice the court might properly proceed to decide the case, as he was not a formal party to it; but it is unnecessary to consider or determine whether it was as necessary to serve a summons on him in as legal and formal a manner, as if he had been a formal party to the proceeding, as on a consideration of the evidence I am satisfied he was formally served with a copy of this notice in just the manner in which the law required him to be served with process in a suit which he was a formal party. The return of the summons was, that “the process was served on the defendant Thomas Swinburn on the 16th day of December, 1878, by posting a copy thereof, on the front door of the dwelling house of Thomas Swinburn, his usual place of abode, said Swinburn not being found there, and no other member of his family being there found.” This was a good service of this process if the facts stated in it were true. But Swinburn not being a formal party to this proceeding, and this process amounting to nothing more than a notice, upon the principles decided by this Court in the case of Bowyer v. Knapp & Martin, decided at the present term of this court, the. falsity of this return could be proven by evidence aliunde. An effort was made to show its falsity in fact. But in my judgment this effort was a failure. I need not review this evidence. It is substantially set forth in the statement which I have made of this ease. It satisfies my mind that this return was true.

On Saturday the 14th of December, 1878, the first summons of Thomas Swinburn was issued by order of the court. At that time he and his family were, it is expressly proven, abiding at his residence and they were there that night; this process was returned “not served for want of time:” andón Monday the 16th day of December, 1878, an a,lias summons was issued on which the above return was made. The evidence satisfies my mind that, to avoid a service of the process of the court, he on Monday morning left his residence and caused his family to be removed therefrom; that this removal was, as shown by the occasion of it, merely temporary ; and that when this process posted up at the front door of his residence it was then his usual place of abode. It was in the language of Capehart, adm’r, v. Cunningham, adm’r, 12 W. Va. 751, “his usual place of abode eo instanti the summons was served.” For the temporary absence of himself and family could not prevent it from being1 his then usual place of abode. For this mode of service by posting a copy at the front door of his usual place of abode, as provided by eh. 50, §32, of our Code, was expressly intended for such a case when no member of his family was found at his usual place of abode. I have reached this conclusion from the evidence in the record ; but it is strongly confirmed by the fact, that if he had any other place of abode on the 16th day of December, 1878, the defendant could with perfect ease have proven it by himself or any member of his family. Yet no such proof was offered.

I conclude therefore that the circuit court had, in the manner it adopted and at the time it acted, a right to review the judgment of the county-court.

Was this judgment of the county-court erroneous? And first, was the notice, which was duly served in time in this case, sufficient on it's face to give the county-court of Kanawha county jurisdiction of the case ? Section 30 of ch. 118 of Acts of 1872-3, p. 354, provides that “any person intending to contest the election of any officer enumerated above (which enumeration includes the clerk' of a circuit court of a county) shall, within ten days after the result of such election is declared, give him notice in writing and a list of the votes he will dispute, with his objections to each, and of the votes rejected, for which he will contend. If the contestant objects to the legality of the election, or the qualifications of the persons returned, the notice shall set forth the facts on which such objection is founded, and he shall append to his notice an affidavit that the matters therein set forth are true according to his knowledge and belief.” The notice in this case show's on its face that John Dryden, who' signed it, was a contestant for this office, that is, that he claimed he and not the party notified, Thomas Swinburn, had been elected clerk of the circuit court of Kanawha county. The notice however did not give a list of the votes which the contestant, Dryden, intended to dispute. with his objections to each, or a list of the votes rejected for which he' would contend, which it is insisted by appellant's counsel was essential to make the notice good. This is certainly true, if the contest had been based on the ground that illegal votes had been received, or legal votes rejected; but if the contestant does not claim that any legal votes were rejected, or any illegal votes received, it would of course be impossible to furnish any such lists, and it would obviously be unnecessary, unless the contest was confined by the statute to cases in which such-legal votes had been rejected, or illegal votes had been received. The statute, however, on its face evidently contemplates other grounds on which the contest may be based. Thus it expressly provides that the contestant may object to the legality of the election ; and this may be the whole basis of his contest. Of course if the election was declared to be illegally held, which conclusion and judgment of the court is evidently contemplated as possible, then the contestant could not possibly be declared by the court as elected. And yet he may, the statute says, allege this as the ground of the contest, and it follows necessarily that the notice need not set out facts which show that the contestant is entitled to the office, as the appellant’s counsel insists it must in every case.

He says that unless he shows facts which entitle him to the office, he does not show any ground for instituting this proceeding, as it is intended to redress only a private wrong in depriving him of an office to which he is entitled. But obviously the purposes of this act are misunderstood; for if he can base this notice, as the statute says he may, on the illegality of the election, this very ground shows that he is not and can not be entitled to the office. But though the contestant neither objects to the admission of illegal votes, the rejection of legal votes nor the illegality of the election, he has still by the words of this statute a right to contest the election, because he objects to the qualifications of the person who has been returned elected.

. This is the sole ground according to the notice of the contest in this case; and in that ease the statute that the notice shall set forth the facts on which this objection is based. This is done explicitly in this notice; and these facts are stated to be that “at the time of said election, October 8, 1878, you were not, and never have been, entitled to vote in this State ; and by express provision of the Constitution of this State you could not be elected to said office at said election.”

It is said by appellant’s counsel that a writ quo warranto is the only mode by which the public can oust a usurper from office; and that this statute only provides the manner in which a person, who is entitled to the office, may claim his right; and that as he in this proceeding is suing for the office, he must show a complete right to it in himself as in ejectment; and that it cannot be that any voter can institute this proceeding, as the statute shows it must be instituted by a candidate for the office, a contestant, and from this the inference is drawn that the party instituting this proceeding must in his notice allege facts that show, if true, that he is entitled to the office. The falsity of this position'is shown by the absurdity to which it leads. For as the statute permits the contestant to allege the' illegality of the election as the ground of the controversy, and in such case requires .that the facts, which show the election to have been illegally held, shall be stated in the notice, it is obvious that so far from it being required to state facts showing that the contestant is entitled to the office, it may show facts that show it is impossible for him or any or.e else to be entitled to the office under this election. All that can possibly be required is that the party giving the notice should be a candidate for .the office. I do not say that this is necessary, but it maybe, and if so, this notice complies with this requisite as it says: “that he will claim to be himself, duly and legally elected to said office at said election.”

The notice'seems to me to be clearly a legal and suffi cient notice, if the. day this notice was returnable, November 1, 1878, does not render it illegal. The county-court on November 1, 1878, the return day of this notice, docketed the same, and the defendant demurring to the jurisdiction of the court, it sustained the demurrer and dismissed the notice. This action was doubtless based on the idea that the notice could not be returnable to November 1, 1878, as that was a day in the October term of the county-court of Kanawha county. The 32d section of chapter 118 of Acts of 1872-3, page 355, provides that the county-court “at its November term, or if no term be held in the month of November at the next term thereafter may hear such evidence as may be brought before it in such a case,” that “they may continue the hearing from time to time but not beyond the time designated for such officer to qualify,” that is in this case, within sixty days from the time he was declared elected. The 30th section of this Act had declared : “In all contested elections the county-court shall be the judge of the election, qualification and returns of its own members, and all county and district officers.” It is obvious this section gave the county-court general jurisdiction of such a case as is presented by this record, and under it the notice might obviously be returnable to any day in any term of the county-court; and under it a notice returnable to a day certain in the October term of the county-court would be a good notice. . Does the fact that a subsequent section requires the case to be tried at the November term vitiate the notice ? It seems to me clearly not. There is no sort of inconsistency in the two sections, the first gives the county-court general jurisdiction of the cases ; the second states when the case is to be tried. Having general jurisdiction of the case, if the notice was returnable to a day in the October term, it may perhaps under the statute have been the duty of the court simply to have docketed the case and continued it for trial to the next term. Though their duty to continue the case might well be doubted, as the obvious spirit of the stat ute is to have the earliest possible trial of the case. But if we admit that it could not be tried by reason of this 32d section earlier than the November term, there is certainly nothing in either the words or spirit of this act to prevent ils being docketed at some day in the October term, so as to be ready for trial at the first day of the next term. So far from this being in conflict with the spirit of the act, it is obviously with its spirit, and is promotive of the 'earliest possible trial of the case. If not so construed, the contestant might be deprived of all opportunity to contest an election. There might be a t&m of the county-court in December, which might be a fiscal term, at which the contested election case could not be legally tried ; and if, because it could not be then tried, it could not be docketed, and the notice could only be made returnable to the January term succeeding the election, it could not be then docketed, because the 32d section provides that it must be tried before that time ; and I apprehend that it modifies the general jurisdiction of the county-court to the extent of forbidding by implication, that a contest can be originated by a notice subsequent to the time in which the law provides that the case ought to be tried. But I cannot see any reason why the notice may not be given to a day prior to the time it may be tried, and if so given, why it may not be docketed and continued till by law it may be tried. There is, it seems to n\e, nothing in either the letter or spirit of the law to forbid this.

It remains to enquire what judgment in this case should have been rendered by the circuit court, the judgment of the county-court dismissing the proceeding for want of jurisdiction being erroneous. The writ of certio-rari in England is used generally to remove a cause from an inferior court to a superior court for trial, when the inferior court is proceeding irregularly or without jurisdiction of the subject; and this being the character of the proceeding, if the writ is sustained, the case is retained generally for trial de novo in the superior court, though it is after the reversal of the irregular proceed-"ingin the inferior court sometimes for special reasons applying to the peculiar character of the case sent down for trial denovo in the inferior court. See Tidd’s Practice, page 412. The writ of certiorari was also used in England sometimes not to remove a case pending in an inferior to a superior court for trial, but as a means of supervising and reviewing a case in an inferior court after a final judgment in the inferior court.' I am not prepared to say whether, when the writ was used strictly as an appellate proceeding when the inferior court h^d rendered a final judgment, the superior court on reversing the inferior court ever retained the case for trial de novo in the superior court.

On this subject Justice Scott in delivering the opinion of the court in Carroll v. Crawford County, 6 English (Ark.) 614 says: “We are aware that in several States the practice has been adopted of giving a new trial (denovo) in all eases removed by certiorari, after judgment, from an inferior to a superior court, but this does not seem warranted by the uniform course of practice in England. There, where cases are thus removed before judgment in the inferior conrt, the proceeding is de novo, so that if the case is at issue when removed, the plaintiff must declare de novo (Tidd’s Practice 349-350). Biit there is no warrant in the practice- of the English courts for a trial de novo after judgment in the inferior court; and this is doubtless the foundation of the practice long established in this State to take no other action in such case than to quash of affirm (County of Pulaski v. Irvin, 4 Ark. 487) regarding the process, when running to acourt moving in a new course different from the common law, as performing the same functions as a writ of error running to one moving in the course of common law. Gromvelt v. Burwell, 1 Salk. 263.”

If the court had in that case reversed the circuit court, they hold that the proper judgment would have been to reverse and annul the judgment and award a new trial in the court below; but there being no error in that case in the judgment of the county-court, they hold that on the ease being brought before the circuit court the judgment of the county court ought to have been affirmed. The circuit court instead of rendering a judgment of af-firmance reached, as it supposed, the same result by dismissing the certiorari and striking it from its docket; this judgment of the circuit court was therefore reversed and cause remanded with instructions to render a general judgment of affirmance.

So far as I. have been able to ascertain, the State Supreme Courts generally, who upon the reversal of a final judgment of an inferior court on a writ of certiorari by a superior court have decided that the case should be tried de novo in the superior court, have so held, not because this was common law, but because by the statutes of these States such a trial in the superior court was in such case authorized. Thus it was decided formerly in Alabama in cases of judgments of inferior tribunals brought before the circuit court by writs of certiorari and reversed; that they could not be tried de novo in-the circuitoourt. See Durham v. Carter & Carrol, 2 Stew. 497; Aldridge v. Hightower, 4 Porter 418; Bell v. Killcrean, 11 Ala. 685. But on February 12, 1850, Session Acts, 81, it was enacted that in all cases of forcible entry and detainer and unlawful detainer, wnich may be removed to any circuit or county-court pursuant to law, shall be tried de novo.” This act changed the law in the cases removed to the circuit court after its passage, but did not affect the cases removed by certiorari before its passage and which were pending in the circuit court at the time of its passage, free Mahan v. Leister, 20 Ala. 162.

So in Indiana, when a judgment of a justice of the peace was reversed on certiora.ri by the circuit court, it was retained in the circuit court for trial. But in Burton v. Breeze, 1 Carter 123, this practice is by the court based on the Indiana statute found in their'Bevised Statutes p. 895. In Fore v. Fore, 24 Ala. 484, the court expressly say : “ A certiorari only brings up the record of the proceedings in the inferior court to the superior court and the cause must be heard in the superior court on the record alone. There can be no trial de novo, unless the statute has so directed; otherwise the judgment on certiorari is either that the' proceedings below be quashed, or that they be affirmed, 8 Yerg. 102; 5 Mass. 423.”

So in Weigland v. Malatesler, 6 Cald. (Tenn.) 362, it was decided : “That when a cause is brought to a circuit court by certiorari, it is required of the court by statute to render a final judgment; and therefore the court held that by the true construction of this statute if the circuit court in such ease reversed the inferior court a trial, de novo must be had in the circuit court.” The court admits that without this statute no trial de novo could be had in the circuiteourt. From the case of Hill v. Faison, 27 Texas, 430, it appears to be also the practice in that State in cases brought up to a superior court from decisions of a justice to try the case de novo; but it does not from this case appear whether this practice is based on the statutes of that State or not. There is nothing in the case to indicate that the court regards such practice as based on the common law. I find however one case in which the Supreme • Court of Pennsylvania upon common law principles held, in a very novel proceeding in this country, an assize of nuisance, a proceeding which was antiquated at that time, upon a certiorari to bring it before the Supreme Court that they had the power to re-summon a jury to try the case. In this country however the writ of certiorari is very rarely used as a means of supervising and controlling inferior courts, till after judgment. It is not used here to remove a case pending in an inferior court to a superior court for trial; but it is as a general rule used here as strictly a proceeding in error after the final judgment of the inferior court. And being so used, the practice in writs of error is usually applied to cases brought before a Superior Court by certiorari-, and therefore a trial de novó in the superior court is not allowed, unless it is authorized by statute. See Farming River Water Power Co. v. County Commissioners, 112 Mass. 213; Lowell v. County Commissioners, 6 Allen 131; Commonwealth v. West Boston Bridge Co., 13 Pick. 195, 196; People et. al. v. Ferris Tiffany (36, N. Y.) 218; Hopkinton v. Smith et. al., 15 N. H. 152; Jefferson County v. Hudson, sheriff, 22 Ark. 595; Harvy v. Herritage, 2 Haywood 38; Owens v. State, 27 Wis. 456; Gilmer, assignee v Warren & Scarborough, 17 Ga. 426; Haller, Seaver & Burbank v. Bluin & Harris, 56 Ga. 525; Leonard v. Peacock, 8 Nev. 161; Smith v. Pratt & Barber, 13 Ohio 550: Commissioners of Sonora v. Supervisors of Carthage, 27 Ill. 143.

As the writ of certiorari, when not used as an auxiliary process, is sometimes used in this country as in England for other purposes than as merely an appellate proceeding, as in the case of Machaboy et al. v. Commissioners, 2 Va. Cas. 268, the rules governing the proceedings and practice in writs of error have not in all respects been universally adopted, when the writ of certiorari is used as a merely appellate proceeding. Thus the cases above cited, while they all agree that a trial de novo can not be had in a superior court in a case brought before it by certiorari, yet they by no means agree as to the judgment which may be rendered. They agree that if no error is found in the proceedings in the inferior court, its judgment should be affirmed; but they differ on the judgment to be rendered, if the judgment of the inferior court is found erroneous. Some holding in such a case all that the superior court can do is to render a judgment reversing the judgment of the inferior court; and others holding it may go further, and render such judgment as the interior court ought to have done, as in cases brought before the superior court by writ of error, that is, they may modify the judgment of the inferior court or reverse it in toto, and enter up a new judgment, or remand it to the inferior court for trial.

This latter practice would certainly seem to be far the most convenient, especially where the inferior court is a court of record, but there are highly respectable authorities which deny the superior court the right, unless so authorized by statute, to do more than simply to reverse or annul the judgment of the inferior court. See Farming River Water Power Co. v. County Commissioners, 112 Mass. 213, and other Massachusetts cases; People et al. v. Ferris, 36 N. Y. 218; Hopkinton v. Smith et al., 15 N. H. 152; but the weight of authority is in favor of the power of the superior court in a case brought before it by certiorari to do more than simply to affirm or reverse the judgment of the inferior tribunal, and is in favor of the authority of the superior court to affirm thejudgment below, or to reverse it and remand it to the inferior court, or to modify its judgment, and in short to enter up such judgment as the court below ought to have done, as in cases brought up by writ of error. See Jefferson County v. Hudson, sheriff, 22 Ark. 601; Harvy v. Herritage, 2 Haywood 38 (top page 201); Leonard v. Peacock, * Nev. 161; Smith v. Pratt & Barber, 13 Ohio 549.

In the latter case, Lam, C. J.,says: “The defendants object to any examination of these proceedings, because they are pending before us by error and not by certirari. The distinction between the respective offices of these writs is well marked in England and in some of the States ; but in our practice the difference in the forms of these writs, the mode of allowance, the process, the assignment of error and the judgment is so slight that it has almost disappeared ; and although no case is known, or believed to exist, where judgments proper have been reviewed by certiorari, or where the proceedings of other public bodies, except courts of common law, have been carried up by writs of error, yet the acts of courts of record, other than their common law proceedings, are daily examined by writs of error ; and several reported cases show the existence of the practice. 4. Mass. 670; 9 Mass. 465; 4 Pick. 125; Wright 673; 7 Ohio 130, 178; 9 Ohio 142.”

The judge was doubtless right in holding that in this country there was now but little difference between the proceeding-sin writs of error and writs of certiorari; and in most of our courts there is no difference in the judgments entered in these cases; but I think he was wrong in saying that in this country, except when authorized by statute, “ acts of courts of record, other than common law proceedings, may be examined by writs of error.” And this view of the judge was subsequently expressly condemned by the Supreme Court of Ohio in Baxter v. Columbia Township, 16 Ohio 56, where it was decided that a writ of error does not lie to reverse the judgment of a court of common law pleas in a case arising under an act for the maintenance and support of illegitimate children ; but a writ of certiorari was the proper proceeding, the judgment being rendered in a proceeding not according to the course of the common law. The Massachusetts cases do not sustain the position for which they were cited.

It seems to me that there is no sound reason why, in a case brought before a superior court by certiorari from the judgment of an inferior court of record, the judgment of that court should be confined to simply an affirmance or reversal of the decision of the inferior court of record; and in such case it seems to me that both reason and authority sustain the position, that the superior court ought, in case of a reversal of the judgment of the inferior court, either to remand the cause to be further proceeded with, or enter such judgment as the court below ought to have entered, as is done in a case brought befo re it by writ of error. No sound reason can be assigned why the case should not thus be fully disposed of in either case. The record alone is to be the basis of the judgment in either case ; and I cannot see why the scope of the judgment of the superior court, when the case is brought before it in its appellate character, should not be as great when the proceedings' are not according to the course of the common law, as in the ease where it is in accordance with tbe course of the common law. The circuit court 'should therefore have reversed and annulled the judgment of the county-court dismissing the case; and the plaintiff should have been adjudged his costs in the circuit court; and the case should have been remanded to the county-court to be proceeded with according to law and the statute in such case made and provided, unless there be some statute authorizing the retention of the case tn the circuit court tor trial. The only statute allowing a retention of a casein the circuit court for trial, where there has been a final judgment of a county-court brought up for review, is the 22d section of ch. 17 of Acts of 1872-3, p. 63, which though it uses the broad language “when any judgment of the county-court is reversed or affirmed the cause shall not be remanded to the county-court, but shall be retained in the circuit court and be proceeded in there,”yet it has no application toa case reversed on a writ of certiorari as this section is in a chapter whose title is an act regulating appeals, writs of error and supersedeas ; and all the sections of the act refer only to such cases. This section therefore applies only to cases reversed which have been brought before the court by -writs of error. .

It may be said such judgment can not now be entered; because the statute, ch. 118, §32 of Acts of 1872-3, p. 355, provides that the county-court may “at its November term, or if no term be held in the month of November at the next term thereafter, hear the evidence; that they may continue the hearing from time to time but not beyond the time designated for such officer to qualify. The court shall declare the result and cause the same to be entered upon the records of the court.” The time when the clerk of the circuit court of Kanawha county elected in October, 1878,-should have qualified was within sixty days from the time he was declared elected ; and this time having pasted, the county-court cannot now hear the evidence or decide the case. I do not so understand this law. It would be strange indeed, if the failure of the court to decide the case in a certain time could be regarded as a forfeiture of the plaintiff’s right to prosecute his case. The language of the, law ■ I have quoted must be regarded as directing the county-court not to continue the case beyond the specified time ; but if they had in violation of their duty done so (which they have not in this case) it could not operate a forfeiture of the plaintiff’s right by the statute being interpreted to prohibit the court from deciding the case after that time. Their failure to perform their duty and to decide the case before that time could not be a reason why they should, much less must, still further fail in their duty by never deciding the case. By the Constitution as well as by the 30th section of this act they were expressly made the judges of the qualification and returns of the circuit clerk of their county. And it was thereby made clearly their duty, when a contested election case for such office was brought before them, to decide it. The 32d section directs them to decide it promptly; but their failure to do so can not release them from their obligation to decide this- as all other cases brought before them, over which they have jurisdiction.

It was, according to my view, improper for the circuit court to hear the evidence or decide the case on its merits. I need not therefore decide whether, if this had been its duty, it ought on the motion of the defendant to have continued the trial of the case on its merits till the next term. Of course it was not only proper, but the obvious duty of the circuit court to decide at that term the only question properly before it: whether the county-court erred in dismissing the case. Nor can there be any just ground of complaint that the summons served on the defendant required him to appear in a very brief time. He could not require any time to prepare the case for trial, as it could by that court only be heard on the record, and his counsel are supposed to be prepared to maintain the judgment of the county-court in their favor at all times, and I do not understand that the counsel complain that sufficient time was not allowed them to prepare their argument and argue the case before the court.

All of the proceedings of the circuit court in.this case after the 19th day of December, 1878, when it vacated and annulled the judgment of the county-court, were irregular, as the case should then have been remanded to the county-court; and all the proceedings of the circuit court after that time must be annulled and set aside; and the judgment of the court in retaining the cause, as well as all the subsequent proceedings and judgments of the court, must be set aside and annulled; and this Court proceeding to render such judgment as the circuit court ought to have rendered, doth vacate, set aside and annuli the judgment of the county-court sustaining the demurrer and dismissing the plaintiff's notice, and doth remand this case to the circuit court of Kanawha county with directions to remand the samé to the county-court of Kanawha county to hear such legal evidence as may be brought before it, and otherwise proceed with this case according to the principles laid down in this opinion, and further according to law and the statute in such cáse made and provided, and declare the result, and cause the same to be entered upon the records of their court.

Judges Moore a°nd Johnson concurred in this opinion of Judge Green; and Judge Haymond concurred in the conclusion reached ; and all the Judges concurred in the syllabus.

Judgment Reversed. Cause Remanded.