
    CHARLESTOWN.
    Barker v. Walton.
    Submitted Sept. 13, 1888.
    Decided Sept. 15, 1888.
    Appeal — Justice op the Peace — Trial de novo.
    According to the constitution of this State the judgment of a justice rendered upon the verdict of a jury in an action in tort or for damages, whether defence was made thereto or not, can not be tried de novo by the Circuit Court; and an appeal allowed in such case will be dismissed as improvidently awarded.
    
      Hutchinson c& Johnson for plaintiff in error.
    
      B. Patterson for defendant in error.
   Snyder, Judge:

This action was commenced before a justice of Pleasants county, by O. P. Barker, against Latimer Bailey and W. N. Walton, to recover the possession of certain personal property, or its value, if not found. Before the trial the defendant Bailey died, and the action was abated as to him. The defendant Walton filed a written statement, alleging that he ' held the said property as agent for the heirs of Latimer Bailey, and disclaiming the possession thereof in his own right. At the instance of the plaintiff, the case was tried by a jury ; which found a verdict in favor of the plaintiff for the property, and fixed its value at $133.00; and they also found $25.00 damages for the detention of said property. Upon this verdict the justice, on September 7,1885, entered judgment; and thereupon the defendant, Walton, tendered the proper bond, and asked the justice to grant him an appeal of said action to the Circuit Court of said county, but the justice refused to grant the appeal. Afterwards, upon the petition of Walton, the judge of said court allowed the appeal, and the case was transferred to and docketed in said court. The plaintiff, Barker, appeared, and moved the court to dismiss said appeal, on the ground that it had been improvidently awarded. The court, on June 16,1886, entered an order sustaining said motion, and dismissed the appeal. It is fro m this order that the defendant, Walton, has brought this writ of error. This Court has repeatedly decided that, according to the constitution of this State, the judgment of a justice, rendered upon the verdict of a jury, in an action in tort or for damages, whether defense was made thereto or not, cannot be tried de novo by the Circuit Court; and that no appeal lies from such judgment to said court. It has also decided that an appeal allowed from such judgment will be dismissed as improvidently awarded. Barlow v. Daniels, 25 W. Va. 515; Hall v. Wadsworth, 30 W. Va. 55, 3 S. E. Rep. 29; Hickman v. Railroad Co., 30 W. Va. 296, 4 S. E. Rep. 654; Woodford v. Hull, infra, 468. Therefore, upon the principles and for the reasons set forth in the opinions of this Court in the cases just cited, we must hold that the said order of the Circuit. Court dismissing the appeal in this case was right, and must be affirmed.

AEEIRMEB.  