Gorman v. Steed

BrowN, J., delivered the opinion of the court. Between the 20th and 25th of June, 1863, Robert P. Steed sued out of the Clerk’s office of the circuit court of Ritchie county, a summons of unlawful entry and detainer, in the words and figures following, to nut: “The Commonwealth of West Virginia, To the sheriff of Ritchie county, greeting: You are hereby commanded to summon Terence Gorman to appear before the Judge of our circuit court, for the county of Ritchie, at rules to be holden in the Clerk’s office of said court on the first Monday in July next, to answer the complaint of Robert P. Steed, that the said Terence Gor-man has unlawfully taken possession and unlawfully withholds from him, the said Robert P. Steed, the possession of a — 11 — certain tract or parcel of land, lying and being in the county of Ritchie, near Gorman’s Tunnel, and containing about ten acres; and have then there this writ: Witness, Wm. II. Douglass, clerk of our said court, at the court-house of said county, this 23d day of October, 1863, and in the 1st year of the Commonwealth. ¥m. H. Douglass.” This writ was executed upon the defendant Gorman on the 25th day of June, 1863, ten days before the first Mondayin July, 1863. On the 3d day of August, 1863, the said Steed sued out of the said clerk’s office an alias summons against the said Gorman: which was executed on the 25th day of August, 1863; but was not stamped with a United States revenue stamp. On the 21st day of September, 1863, Steed appeared by attorney and moved the circuit court of Ritchie county, to impannel a jury to try the cause upon the original and alias summons. "Whereupon Gorman appeared by his attorney, and moved the court to quash the said writ, but the court overruled his motion, and ho excepted. Gorman then pleaded not guilty, and the jury impannelled to try the issue, found the following verdict: “We the jury find that the defendant unlawfully withholds from the plaintiff, the possession of the promises in the within summons mentioned: and that he has not so held the possession thereof, for three years prior to the institution of this suit, and therefore, wo find for the plaintiff.” The defendant Gorman, then moved the court to set aside the verdict and grant him a new tidal, for the reason that the verdict was not responsive to the issue, in failing, as he alleged, to find that the defendant unlawfully withheld the premises in question on the day of suing out the summons. But the court overruled the motion and he again excepted. Thereupon judgment was rendered for the plaintiff Steed against the defendant Gorman, for the possession of the premises in question. And the cause comes here upon a supersedeas to the said judgment, wherein the said Gorman, who was defendant in the court below, is plaintiff, and the said Steed, who was plaintiff below, is defendant. A.n objection to the jurisdiction of this court has been raised at the — 12 — threshold of this cause, and should be the first disposed of. It is contended by the counsel for the defendant, that as the only ground of jurisdiction is that conferred by the constitution, where the title or boundaries of land may be drawn in question, and that as in this case the question of possession was the only matter in controversy, that therefore the case was not within the constitutional provision, and the court is without jurisdiction. A provision similar to our own existed in the constitution of Virginia, and yet the court of appeals of that State, have uniformly taken jurisdiction from a very early period, and repeatedly exercised it in eases of unlawful entry and detainer, and in cases of ejectment, in some of which, the question of possession alone, was the subject of controversy. And though the objection to the jurisdiction for the reason above stated has never before, that I am aware of, been made, nor directly decided by the court of appeals of Virginia, where the jurisdiction is precisely the same quo ad the matter in question, as that of this court. Yet in the case of Tapscoittl vs. Cobbs et. als., 11 Grat. 172, it was held that, “a party in peaceable possession of land, being entered upon and ousted by one not having title, nor authority to enter, may recover the premises in ejectment upon his possession merely; and his right to recover cannot be resisted by showing that there is or may bo an outstanding title in another, but only by showing that the defendant himself, either has title, or authority to enter under the title.” And in the case of Olniger vs. Shepherd, 12 Grat. 462, it was held that, “in a proceeding for an unlawful entry or detainer, if the defendant has entered unlawfully, the plaintiff is entitled to recover without any regard to the question of his right of possession: and this though the land from which he is ousted, is the land of the Commonwealth or of the party who ousted him.” This exercise of jurisdiction without objection, is not without import, and would require a clear case to justify a departure from it. Nut independently of the jurisdiction thus uniformly exercised, the provision of the constitution — 13 — in Article 6, section 8, which is to be taken in its broadest sense is ample to meet the case here. It gives jurisdiction to. this court in controversies concerning the title or boundaries of land. Possession is one of the elements of title, and a very important one too; and the statute requires that the premises of which the possession is claimed, shall be described in the summons: thus presenting in a double aspect the question of title and boundary within the mean-iúg of the constitution. The motion therefore to dismiss the case for want of jurisdiction should be overruled. The points made by the plaintiff and fairly arising upon the record of the ease, are next to be considered. And the first error thus assigned, is in the court’s not quashing the original summons, for several causes apparent on the face of the writ. By the constitution, Article 1, section 5, it is declared that “writs shall run in the name of the State of West Virginia,” but the original summons in this case does not run in that name, but in the name of the Commonwealth of West Virginia, and ought therefore to have been quashed for that cause. Again, while the true date of the original summons was the day on which it issued, which was between the 20th and 25th of dune, 1863, and not the day, viz: October 23d, 1863, on which it purported to bear date, and the true return day therefore was in July, 1863, and not July, 1864, as supposed, yet the confusion of dates was well calculated to delude the defendant as to the day when he should appear and answer the complainant; and therefore the said writ ought to have been quashed for that cause. Again, the original summons was returnable to rules, while in such case it could only have been properly returnable to court. Chapter 170, of the Code of 1860, concerning process generally, and chapter 135, of the same Code, concerning the S3immary remedy for unlawful entry or detainer, are to be construed with reference to each other; and the general provisions of the former restrained and limited by the latter, by which it is manifest that the — 14 — summons in an action of unlawful entry or detainer, is to be returned to court and not to rules. The second error assigned by tbe plaintiff, is the refusal of the court to quash the alias summons because it was not stamped, and because it was not a case in which an alias might be issued. As the alias is but the continuation of the original, and dependent upon it, it must stand or fall with it; and the original being quashed for the causes assigned, the alias ought also to have been quashed. The statute, section 3, of chapter 170, of Code of 1860, only authorizes the clerk to issue an alias where the original has not been executed, and not where it had boon, as in this case, returned executed, and was therefore functus officio. And without deciding that the court might not, in a proper case, where it was necessary to preserve the original action, amend a defective summons in unlawful entry or detainer, and award an alias, (upon which point it is not now intended to express an opinion,) it is yet clear that tho alias should have been quashed for tho reason that tho original summons having boon returned executed, there was no authority vested in tho clerk to issue an alias in such ease, Tho objection that the alias summons liad no United States revenue stamp affixed to it, is not well taken, as no stamp is required on mesne process. The most important principio involved in this case, is that raised by tho motion to quash both the original and alias summons, for want of convenient certainty in tho description of the land in controversy; and tho samo question is raised on tho motion, to set asido the verdict for the same cause. And as tho verdict follows tho description contained in the process, whatever may be said and considered in tho one case, will equally apply to tho other. Chapter 134, section 1, of Code of 1860, requires the premises to be described in tho summons of unlawful entry or detainer. And chapter 135, section 8, on ejectment, requires that tho promises claimed shall bo described with convenient certainty, Here, then, one chapter requires the premises to — 15 — be described, and tbe other requires them to be described with convenient certainty. The different phraseology employed does not indicate greater certainty of description in the one ease, than in the other: for, to describe a thing or place, and to describe it with convenient certainty, would seem to moan the same. The reason for description is apparent; and is as applicable in one ease as in tiro other. The reason assigned in chapter 135, section 8, is that, “from such description, possession may be delivered.” It is true that in chapter 134, no such reason is assigned: but it cannot be questioned that it equally exists, since the possession is iii like manner to be delivered, and the description is the only safe guide to the officer in making it. But section 8, of chapter 135, has received interpretation by the court of appeals of Virginia in the case of Hitchcox vs. Rawson, 14 Grat. 526; tried by the ruling in that case, and the views above stated, the description of the premises in tire original and in the alias summons’, and also in the verdict, was not sufficiently certain to put the defendant to a denial of the complaint, nor to furnish a safe guide to the officer in delivering possession. And for that cause also both writs ought to have been quashed, and the verdict sot aside. The last objection is that the verdict is not responsive to the issues, in failing, as the plaintiff alleges, to find that the defendant in the court below, unlawfully withheld the premises in question at the time of the institution of the suit. This objection is not well taken, because the verdict is substantially a general verdict for the plaintiff' below. And a general verdict, in effect, finds ovory ossontial fact necessary to authorize it, and withholding the possession at the date of the institution of the suit, is one of thoso facts; Olniger vs. Shepherd, 12 Grat., and Kincheloe vs. Tracewells, 11 Grat., 587. Judgment reversed with costs to the plaintiff’, in this court and the court below.