O'Connor v. Dils ( 1896 )

Dent, Judge :

Patrick O’Connor sued William Dils, before a justice of the county of Kanawha, fora certain sum of money lost at gambling. He moved to quash summons, because it summons him to answer an action “for damages for a wrong” instead of “money due on contract.” The justice overruled the motion, but rendered final judgment in favor of defendant. Plaintiff appealed, and the circuit court rendered judgment in his favor for the sum of one hundred and nine dollars. The defendant obtained a writ of error, and now assigns as error that the circuit court refused on his motion to strike out the evidence as showing a variance between the same and the writ.

There are two questions presented for consideration: First. Was the summons part of the pleadings, and, if so, had the court a right to amend it? Hecond. Is the summons sufficient to cover the case made out in evidence? If the summons is a part of the pleadings, the circuit court had a right to amend it, under clause 10, section 50, c. 50, Code, which is in these words : “The pleadings maybe amended at any time before the trial or during the trial when by such amendment substantial justice will be promoted.” It is provided by clause 2 of same .section that the i-deadings “may be oral or in writing,” and this would indicate that the summons is not to be considered part of the pleadings, but, having served the purpose of bringing the defendant into court, it had fulfilled its mission, and therefore was no longer to be regarded, and the motion to strike out the evidence was properly overruled, as th'e pleadings were oral, and written out in the justice’s record, as appears from the transcript. If the summons is to be regarded in the light of a pleading, or apart thereof, the justice had the right, to amend the same; and this he can do and did do by entry of the oral pleadings on his docket. The effect being to produce the amendment, it is not necessary to set out in words that the summons is hereby amended by striking out certain words and inserting others, but the additional pleading and the summons will be read together, and all unnecessary words be regarded as surplusage. That being the case, the summons, as amended, would read that the defendant was summoned or called upon to snswer an action for money won by him from the plaintiff at gambling. This would give defendant complete notice of the plaintiff’s cause of action. In the case of Fouse v. Vandervort, 80 W. Va. 334 (4 S. E. 302,) it is said : “The summons is not in all respects intended to be a substitute in justices’courts for the declaration in courts of records. And especially is this so in regard to stating the cause of action, because the statute expressly provides for a complaint to he filed by the plaintiff in -which he -shall state his cause of action. It is sufficient to state in the summons in a general manner the nature of the plaintiff’s claim and the amount for which lie will demand judgment. If there is any error in this respect, it can he remedied in the complaint which the plaintiff is required to file.” The distinction really to he drawn between the words “for money due upon contract” and “damages for a wrong,” while partakng of the same nature, is not to he referred to the common law, hut to section 8 of the chapter, which provides. “The jurisdiction of justices within their several districts and counties shall extend to all civil actions for the recovery of money, or the possession of property including actions.in which damages are obtained as a compensation for a wrong.” And it is provided in section 49, “The forms of action now existing shall not apply to justice’s courts and there shall hereafter he but one form of action in said courts, which shall he denominated a civil action.” Thus entirely abrogating all common-law forms except as provided in the chapter. So it is in the chapter alone that we must look for the settlement of the question under discussion.

In the first place, there is hut. one form of action, which is a civil action, and this determines the character of the summons. Then all that follows after the words “civil action” in the summons, to wit: “for money due on contract,” or “for damages for a- wrong,” is a statement of the cause of action, and is, therefore, pleading to that extent, and lienee would he amendable, not by a change in the summons, hut by the complaint, either oral, entered on the justice’s docket, or in writing. This is why no provision is made for the amendment of the summons, for the complaint does that to the extent the summons states the cause of action. The form of the summons given is not intended to he unchangeable, hut section 2(1 provides that it shall he in such “form or substance,” and also provides “hut no summons shall he quashed or set'aside for any defect therein if it he sufficient on its face to show what is intended thereby.” Hence the conclusion follows that the legislature, in using the words “money due on contract” or “for damages for a wrong,” as the case may he, was not prescribing the form of the complaint, hut was simply suggesting the manner in which the cause of action could be stated; and therefore any other statement which, in substance, would, amount to the same thing, would be sufficient to satisfy the requirements of the statute. Then, are the words “damages for a wrong” in substance the same as “money due on contract”? The meaning’ of the word “damages” is a compensation, recompense, or satisfaction in money; “wrong” means any deprivation of right, breach of contract, or injury done by one person to another. Hence “damages for a wrong” means “money given for a breach of contract” as well as any other deprivation of right or injury to person or property. The words “damages for a wrong” therefore not only include “money due on contract,” but money which one is entitled to recover oil' of another for any purpose whatsoever, and is the much broader and more inclusive expression. In substance, then, the statute was fully complied with, and the court did not err in refusing to reject the plaintiff’s evidence, or to set aside the verdict and grant the defendant a new trial. If is especially provided in clause 9, s. 50, e. ñ(),' (Vide, that “a variance between the proof on the trial and the allegations of a pleading shall be disregarded as immaterial unless the justice shall be satisfied that the adverse party has been misled to his prejudice.” This would cure all defects of the summons as a pleading. Therefore the justice did not err in refusing to quash the summons. The judgment should be affirmed.