White v. Emblem

28 S.E. 761, 43 W. Va. 819, 1897 W. Va. LEXIS 84

• Court: West Virginia Supreme Court
• Decided: November 17, 1897
• Status: Published

Opinions

Brannon, Judge:

Action before a justice for recovery of personal property, and appeal to circuit court, and judgment for plaintiff. It appears there was no plea forming an issue in this case in either the justice’s or circuit court, and Judge ENGLISH insists upon the reversal of the judgment for that cause, but the other judges do not agree to do so. In Simpkins v. White, 43 W. Va. 125 (27 S. E. 361), I gave my reasons for refusing to reverse the judgment in an action of unlawful entry before a justice for want of issue. I would apply the same doctrine to any action before a justice. A formal action of detinue asserts that defendant unlawfully detains the property, and the general issue is non detinet, denying the unlawful detention. In formal common-law actions there are formal pleas and formal issues, and the jury is sworn to try the issue or issues; but there are no formal pleadings or issues in actions before justices, or on their appeal to the circuit court. The Code, in chapter 50, s. 49, abolishes, as to justices’ courts, the forms of action in courts of record, and, of course, abolishes formal pleadings applicable thereto. If the defendants in this case had pleaded, they would simply have denied the allegation of unlawful detention of the property. By making defense they did this just as clearly as if they had filed a plea denying it, or pleaded non detinet. The jury was sworn to try “all matters in difference between the parties,” thus covering all points of issue or controversy. It would seem to be over-nice to reverse this judgment for that cause when we see that a jury trial was had, just as if there had been a formal plea.

But a grave error in this case consists in the facts (1) that the verdict does not give the value of each of the several articles of property sued for, nor does the judgment; (2) the judgment is one for the recovery of a sum of money found by the jury as the gross value of all the property, whereas it should have been for the recovery of the specific property, if to be had, and, if not, then for the alternative value in money. The verdict must find the separate values of the property, and each article, if more than one is sued for. This is old law. 6 Am. & Eng. Enc. Law, 657; 2 Bart. Law Brae. 705. The judgment must correspond. Though the case be before a justice, where rigid proceeding is not required, still there must be such a verdict as will support such a judgment, as the law requires; especially might we ask it on the appeal. The plaintiff' has right to the particular property he has sued for, if to be had, and, if not, then its value; while the defendant has right to surrender the property, and not pay its value. This judgment denies the defendants this right, and makes them pay the money at all hazards. Therefore we reverse the judgment, set aside the verdict, and send the case back to the circuit court for a new trial.