
    CHARLESTON.
    Vandervort v. Fouse.
    Submitted September 14, 1887.
    Decided November 12, 1887.
    Ai’I’eal — Justice 01? the Peace — Teial de Novo.
    The judgment of a justice upon the verdict of a jury, in an action sounding in damages, to which the defendant declined to appear or plead, cannot be tried de novo by the Circuit Court upon appeal.
    
      O. T. Oaldwell for plaintiff in error.
    
      J. W. Vandervort for defendant in error.
   Snyder, Judge:

Writ of error to a judgment of the Circuit Court of Wood county, dismissing an appeal from the judgment of a justice of said county. The original action was brought before the justice by J. W. Yandervort against Herman Fouse, to recover damages for the breach of a contract. The defendant having been duly summoned appeared before the justice on the day set for trial, and moved to quash the summons, which motion being overruled, the defendant declined to plead to the action and withdrew from the case. The plaintiff demanded a jury, which was called and sworn by the justice. The case was tried by jury, and a verdict returned in favor of the plaintiff for $264.00, upon which the justice gave judgment for that sum and costs. On the day after the judgment was rendered the defendant filed his bond, and obtained from the justice an appeal to the Circuit Court. The appeal was docketed in said court, and afterwards upon the motion of the plaintiff that court dismissed the appeal. It is from the judgment of the Circuit Court that the defendant obtained this writ of error.

In Hickman v. Railroad Co., ante, 296, a case involving the same questions raised by the record in this case, decided at the present.term, this Court held, that the judgment of a justice rendered upon the verdict of six jurors in an action for damages, in which no defence was made by the defendant, can not be tried de novo by the Circuit Court upon appeal. The effort of the plaintiff in error in this case, as it was in that case, is to have the judgment of the justice disregarded, and the case tried de novo under the provisions of section 169, ch. 50, Amend. Code, p. 417. This we have held can not be done both in Hickman v. Railroad Co., supra, and Barlow v. Daniels, 25 W. Va. 512. For the reasons set forth in the opinions of the Court in those two cases, the judgment of the Circuit Court in this case is affirmed.

Woods, Judge,

dissenting:

I am unable to concur in the opinion and syllabus of the Court in this case for the reasons stated by me in my opinion dissenting from the opinion and conclusions of this Court in the case of Hickman v. B. & O. R. Co., decided at the present term.

Aeeirmed.  