return day of the summons, unless good cause be shown to the contrary." Common-Law Forms of Actions judgment simply because the jury were sworn to "try the issue" between the parties, where the record fails to show that any plea had been filed or issue Abolished.-Common-law forms of acmade in the case, in the absence of anything to show that the plaintiff in error was prejudiced by such irregularity, if it was such. Tully v. Despard, 31 W. Va. 370, 6 S. E. 927. Unlawful Detainer.-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. Pleas in Abatement.—The pleadings in justices' courts are prescribed by statute, and no provision is made for pleas in abatement. Such plea, therefore, to the jurisdiction of the justice, can not be properly filed, either before the justice, or the circuit court to which the action may be appealed. As a substitute for such pleas, § 66, ch. 50, Code, provides that "the action shall be dismissed at plaintiff's cost whenever it appears that it has been brought in the wrong county, or that for any other reason the justice has not jurisdiction thereof." Mountain City Mill Co. v. Southern, 46 W. Va. 754, 34 S. E. 782; Todd v. Gates, 20 W. Va. 464; Layne v. Ohio River R. Co., 35 W. Va. 438, 14 S. E. 123. tions, 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. 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, 179, W. Va. Code, Poole v. Dilworth, 26 W. Va. 583. Action on an Account.-In an action before a justice, founded upon an account, note, or other writing for the payment of money, it shall be a sufficient complaint for the plaintiff to deliver the account, nete, or other writing to the justice, and to state that there is due to him thereon from the defendant a specific sum, which he claims to recover in the action. Mountain City Mill Co. v. Southern, 46 W. Va. 754, 34 S. E. 782. In an action for the recovery of money due on contract before a justice, a complaint in writing in the nature of a declaration in assumpsit with the common counts, the last count 2. Number and Character of Plead- "also in the sum of two hundred and ings. Section 50, ch. 50, of the West Virginia Code, provides for the rules of procedure before justices as follows: "The pleadings in these courts are, first, the complaint by the plaintiff; second, the answer by the defendant." "The pleadings may be oral or in writing; if oral, the substance of them shall be entered by the justice in his docket; if in writing they shall be filed by him and a reference to them be made in the docket. In either case if the parties appear and the defendant made defense they shall be made up on the fifty-six dollars and thirty-six cents as stated in the account of the plaintiff against the defendant, attached to and made part of this complaint," and averring promise and failure to pay, and which account attached is a complete bill of particulars of the item, with date and amount of each and showing what the charge was for, with notice that it would be relied upon at the trial, is held sufficient under the Garber. Blatchley, 51 W. statue. Va. 147, 41 S. E. 222. 3. Joinder of Counts. Plaintiff suing before a justice al leged in his first count that the defend- tice at any time, and will, for the purant, a railroad company, negligently pose of sustaining the proceedings, be ran its train and killed the plaintiff's regarded as made." Packet Co. v. horse. The second count alleged that Bellville, 55 W. Va. 560, 564, 47 S. E. the defendant had bound itself by writ- 301. ten contract to maintain the necessary Time of Entry.-Although the statcattle guards, and through its failure ute requires that a judgment of a justo do so the injury occurred. These tice shall be entered within twentycounts were properly joined. Harrow four hours after trial (Sundays exv. Ohio River R. Co., 38 W. Va. 711, cepted) a judgment rendered within such time, but entered after the time thus directed, is not void. Packet Co. 18 S. E. 926. C. CONTINUANCES. See the title CONTINUANCES, v. Bellville, 55 W. Va. 560, 47 S. E. vol. 3, p. 272. D. VERDICT AND JUDGMENT. Judicial Act. "In Stallcup v. Baker, 18 O. St. 544, it is held, that the rendition of judgment by a justice on a verdict of the jury is a judicial and not a ministerial act, and neglect on his part to render judgment on such verdict within the time required by law to make it valid is not a breach of his official bond conditioned that he 'shall well and truly perform every ministerial act that is enjoined upon him by law and by virtue of said office."" Packet Co. v. Bellville, 55 W. Va. 560, 564, 47 S. E. 301. 301. Where a judgment in an action tried before a justice is rendered and publicly announced by the justice on the day and at the close of the trial, although the clerical work of entering the judgment upon his docket is not performed until a few days thereafter, the statute is substantially complied with. Packet Co. v. Bellville, 55 W. Va. 560, 47 S. E. 301. Entry 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. It was held, that such entry was unauthorized and illegal. McClain v. Davis, 37 W. Va. 330, 16 S. E. 629. Irregular Rendition.-"In Robinson v. Kious, 4 O. St. 593, the court holds, that the statute which provides that Mistake as to Tense.-By § 180, ch. 'upon a verdict the justice must imme- 50 of the West Virginia Code, all diately render judgment accordingly, formalities in the entry of a justice's does not make a judgment rendered judgment are dispensed with, and it is upon a subsequent day absolutely void, sufficient if the truth be stated so as but it makes it irregular and for such to be intelligible. "Good grammar is irregularity when not waived it is re- not essential to a good judgment. The versible." Packet Co. v. Bellville, 55 mistake of a proper tense will not renW. Va. 560, 564, 47 S. E. 301. der a justice's judgment unintelligible 2. Entry. or invalid. Justices are not usually educated men, learned either in the intricacies of law or grammar, hence their records must be scanned with the greatest leniency." Davis v. Trump, 43 W. Va. 191, 27 S. E. 397. Ministerial Act. The entry of judgment is in no respect the exercise of judicial power but the performance of a mere ministerial act. "An omission therefore to make such an entry will not render the entire proceedings a Statement of Defendants' Nonapnullity. It may be made by the jus- pearance. The fact that the justice ror which will cause its reversal by a higher court, is not for that reason b. What Judgment Must Show. does not state in so many words on ! his docket that he waited one hour for the appearance of the defendants void." Griffin v. Haught, 45 W. Va. does not render the judgment invalid. 460, 31 S. E. 957, 959. The statement that "the defendant not appearing" is a sufficient compliance with § 179, ch. 50, Code. Fishburne v. Baldwin, 46 W. Va. 19, 32 S. E. 1007. Judgment as a Lien on Real Estate. -As to when the judgment of a justice of the peace becomes a lien on real estate, see the title JUDGMENTS AND DECREES, vol. 8, p. 320. 3. Validity of Judgment. a. Conditions Essential to Valid Judg ment. In order that a valid judgment may be rendered by a justice of the peace, the suit must be brought against a defendant upon whom is the liability, and service of process upon another and different party will not confer jurisdiction of the subject matter. Yates v. Taylor County Court, 47 W. Va. 376, 35 S. E. 24. 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 River R. Co., 35 W. Va. 328, 13 S. E. 1009. 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. "In any case where the court has jurisdiction of the subject matter of the action, and the parties are before it by due service of proper process, the jurisdiction is never ousted by the erroneous exercise of the power which it confers; and the judgment in the case, though it may be marked by er Must Find Value of Property.-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. 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. "Defendant" for "Defendants."-A judgment of a justice, which is plainly intended to be against two defendants named in the heading and summons, is not invalid for the reason that the word "defendant" is used in the body thereof instead of the word "defendants." Fishburne v. Baldwin, 46 W. Va. 19, 32 S. E. 1007. c. Judgment Rendered by Two Jus tices. amendable clerical omissions not in any wise invalidating the judgment, or rendering it uncertain as to time, parties, or the amount thereof. Fishburne v. Baldwin, 46 W Va. 19, 32 S. E. 1007. While a writ of prohibition will be awarded to prevent a justice of the peace from taking jurisdiction of a debt in excess of one hundred dollars which has been split up into notes, each less than one hundred dollars, all of which are due, and for which separate warrants are being prosecuted before him, yet where such warrants have proceeded to judgment before the justice, with the consent or acquiescence of the defendant, such judgments can not be thereafter collaterally assailed by third persons. This result does not in any degree impinge upon the maxim that consent can not give jurisdiction, as the justice had jurisdiction over the amount represented in each judgment. Adams v. Jennings, 103 Va. 579, 49 S. E. 982. See also, the title PROHIBITION. 4. Action on Judgment. no 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 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. 5. Transcript of Judgment. 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. ing purporting to be "an abstract from a justice's docket,' certified to as fllows: A true abstract from docket in my possession,' signed, 'A. J. Kirkpatrick, of the peace.'" It was held, that it is not such a certificate as the statute, ch. 226, § 135, acts 1872-73. required, in order to make a transcript of a justice's judgment evidence. But the court did not decide the question as to whether the paper writing, if properly authenticated, would be such a transcript of the judgment as the statute requires. Jackson v. Conrad, 14 W. Va. 526, 528. Filing of Transcript.-When the justice has transmitted to the clerk of the circuit court a complete transcript of his docket in the proceedings in the action, together with the original papers relating thereto, the clerk should file with them all the papers so transmitted to him by the judge. Hubb rd v. Yocum, 30 W. Va. 740, 5 S. E. 867. Constitutionality of Statute.-Section 118, ch. 50, Code, 1899, allowing a transcript of a judgment of a justice to be filed in the office of a circuit to be issued court, and execution thereon, does not violate the provision of the constitution requiring the amount for jurisdiction of the circuit court to exceed $50. Speidel Grocery Co. v. Warder (W. Va.), 49 S. E. 534. 6. 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 . Davis, 33 W. Va. 132, 10 S. E. 20. Can Not Be Served by Constable.— 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. Improper Signature. A paper writ- 356. Purporting to Be Issued in Wrong County. 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 Davis, 2 Gratt. 363. E. NEW TRIALS. See also, the title NEW TRIALS. Discretion of Trial Court-Under § 5, ch. 138, a trial court has large discretion in granting new trials conditioned on payment of costs by the moving party and the appellate court will not interfere unless it clearly appears that such discretion has been abused. Garber v. Blatchley, 51 W. Va. 147, 41 S. E. 222. Construction of § 91, Ch. 50, W. Va. Code, 1891. The provisions in § 91, ch. 50, of the Code of West Virginia, 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. new 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 trial (§ 2946, Va. 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. 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 can not 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, etc., Co. v. McGinnis, 30 W. Va. 532, 4 S. E. 782. VII. Docket. See also, ante, "Entry," VI, D, 2. Statutory Provisions Directory.The West Virginia 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 can not be cause for reversal. Straley v. Payne, 43 W. Va. 185, 27 S. E. 359. Entries Informal.-By § 180, ch. 50 of the West Virginia 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. 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. VIII. Review of Proceedings. See also, the title APPEAL AND ERROR, vol. 1, p. 654. Motion for Overruled.—When a justice renders judgment on a verdict on one day, and on the next day a motion A. APPEAL AND ERROR. for a new trial is made and overruled, 1. Allowance of Appeal. the ten days allowed for a certiorari a. Right to Appeal. begins to run on the latter day. Straley v. Payne, 43 W. Va. 185, 27 S. E. 359. See also, the title CERTIORARI, vol. 2, p. 734. When Judgment Can Not Be Enjoined and Reversed.-Under § 13, art. 3, of the constitution of West Virginia, "An appeal lies from the judgment of a justice rendered upon the verdict of a jury, just as in cases tried by him without a jury, and the writ of certiorari does not lie in such case. The cases of Barlow v. Daniels, 25 W. Va. 512; Hickman v. Baltimore, etc., R. |