CHARLESTON.

#### Erb *v.*The Hendricks Company (Limited) .

Submitted January 29, 1901.

Decided November 9, 1901.

1. Execution bbom Cibcuit *Coubt*— Justice *Jurisdiction.*

H. Co. recovered a judgment before a justice in R. Comity against H. *&*E. and bad tbe same certified to tbe clerk of tbe circuit court of said county under section 118, chapter 50, Code. Tbe clerk of said court issued writ of execution tbereon directed to sheriff of T. County who levied tbe same on property, claimed by J. B. E., the sheriff demanded and received from H. Co. an indemnifying bond. J. B. E. filed bis petition under section 152, chapter 50 before a justice of T. County who notified the execution creditor and defendants to try the right of the property levied on before said justice. *Held:*the execution having been issued from the clerk’s office of a circuit court, the justice was without jurisdiction in the premises, (p. 30).

2. Indemnifying *Bond*— Statute *Construed.*

In such case the remedy of J. B. E. was to proceed in tbe circuit court of T. County under the provisions of chapter 107, Code, or upon the indemnifying bond taken by tbe sheriff of T. County, (p. 31.).

Error to Circuit Court, Tucker County.

Action by the Hendricks Company, Limited, against Joseph B. Erb, D. D. Hazeltine, and Grant Erb, before a justice. Execution from circuit court levied on certain property, and third person interposed claim before the justice. From a judgment *29on trial of right to property, defendant Joseph B. Erb brings error.

*Dismissed.*

E. D. Talbot and A. Jay ValeNTINB, for plaintiff in error.

CuNNINGItam & StalliNGS, for defendant in error.

MoWiioimsR, Judge :

The Hendricks Company (Limited) recovered a judgment against D. D. Hazeltine and Grant Erb doing business as Hazel-tine *&*Erb, before A. C. Bowan, a justice of Randolph County, for Qne hundred and ninety dollars upon which execution was issued by said justice and duly returned partly satisfied. Said justice certified to the clerk of Randolph circuit court a transcript of said judgment under section 118, chapter 50, Code. The clerk of said circuit court issued an execution thereon dated the 2d of June, 1898, with a credit of thirty-five dollars endorsed, and directing the same to thfe sheriff of Tucker County for levy, accordingly the sheriff of Tucker County on the 29th day of June, 1898, levied the same on a lot of about twenty thousand feet of oak and ash lumber as personal property belonging to —Erb, but before the sale the sheriff demanded from the plaintiff and received an indemnifying bond, as stated in the petition, and it is conceded that an indemnifying bond was given. Joseph B. Erb made his petition addressed “To any justice of the county of Tucker, West Virginia,” reciting the judgment, partial satisfaction of execution, the certification of the judgment to the circuit clerk of Randolph County, the issuance thereon by the said clerk of the execution and levy thereof on the said lumber, claiming the property so levied as his own and praying that an order be entered by a justice of the county wherein the levy was made, to notify both the Hendricks Company (Limited) as a creditor in said execution and the said D. D. Hazeltine and Grant Erb, as debtors therein, to appear before said justice on a day and at a place to be designated by him, to show cause why the said property so levied upon should not be discharged from such levy. C. S. Ward, a justice of Tucker County, on the 8th day of July, 1898, made such order as was prayed for in said petition and cited the said execution creditor and debtors to appear before him at his office in Black Fork dis*30trict in Tucker County on the 11th clay of July, 1898, at eight o’clock A. M. to show cause why said property should not be discharged from said levy. On the 11th of July upon hearing of the petition of Joseph B. Erb the same was dismissed by the justice. Plaintiff Erb appealed the case to the circuit court. On the 19th of June, 1899, the parties appeared and the defendants, The'Hendricks Company (Limited), moved to dismiss the plaintiff’s petition for want of jurisdiction which motion the court overruled, to which ruling the defendants excepted which exception was saved to them by bill of exceptions duly signed. On the 10th day of March, 1900, a jury of six was impaneled to try the issue and on the 12th clay of March the jury returned their verdict finding tire right and title of the property levied on to bo in Joseph B. Erb, and its value to be two hundred and twenty-one dollars and forty cents, when the defendants moved the court to set aside the verdict of the jury and grant them a new trial, of which motion the court took time to consider and on the next day the court overruled the motion and entered judgment on said verdict for the said sum of two hundred and twenty one dollars and forty cents and costs in the court and before the justice, to which rulings of the court defendants excepted. The defendants obtained from this Court a writ of error to said judgment and assigned some nine causes of error. All the assignments except the first and fourth are concerning the admission of improper evidence and the giving of erroneous instructions for plaintiff and refusing to give propér instructions asked by defendants. If the first and fourth assignments which are to the same effect, are well taken, it will be wholly unnecessary to consider the others, indeed they do not arise in the case for consideration. The first “that the execution having issued from the circuit clerk’s office of Randolph County directed and delivered to and levied by the sheriff of Tucker County, that a justice of the peace of Tucker County had no right to determine the right of property,” and the fourth is of the same character “that it was error not to dismiss said case when it appeared that the execution had issued from the circuit clerk’s office of Randolph County and been levied by the sheriff of Tucker County as set out in bill of exceptions No. 3.” Section 118 of chapter 50, Code, provides that “the person in whose favor a judgment is rendered by a justice, or who is entitled to receive the money due thereon, or any part of it, may file in the clerk’s office of the cir*31cuit court of the county in which the judgment was rendered, a transcript thereof, certified by the justice who has the lawful custody of the docket in which such judgment is entered; and the said clerk may issue exception thereon in the same manner, and with *like effect as if the judgment had leen rendered ly the circuit court.”*It is contended by appellee that the judgment on which this execution issued was rendered .by a justice and that the mere fact of it having been docketed in the circuit clerk’s office does not make it a judgment of the circuit court, and that one reason why this is true is that a judgment can be rendered by a justice of the peace for an amount below the jurisdiction of the circuit court, which could bo docketed in the circuit clerk’s office, but which certainly would not, then, become the judgment of the circuit court, because it would have no juris-. diction to render such judgment. It is true it does not become the judgment of the circuit court in the strict sense of the term, but the section just quoted makes the execution issued thereon by the clerk have the same effect as if the judgment had been rendered by the circuit court, the execution issued upon' such judgment is placed upon precisely the same footing and given the same force and properties as executions issued on the judgment of the circuit court. The jurisdiction of circuit courts is limited in actions that may be brought therein to a minimum of fifty dollars in amount, yet they may render judgments for any amount less than fifty dollars if upon the trial or hearing of a case, in which it has jurisdiction it is found proper to do so. And in case an execution issued upon a judgment of the circuit court for a less amount than fifty dollars, and which has been levied on property about the title of which there is doubt or dispute, provision is made for the trial of the right of such property in section 5, chapter 107, Code, which provides that “When property of the value of more than fifty dollars is taken under a warrant of distress, or when property of *any value*is taken under an execution issued by the clerk of the court, and any person other than the party against whom the process issued, claims such property, or the proceeds or value thereof, the circuit court of the county in which the property is taken, or the judge thereof in vacation, upon the application of the officer, when no indemnifying bond has been given, or if one has been given on the application of the person who claims such property and has given such suspending bond as is mentioned in the preceding *32section, may' canse to appear before such court, as well the party issuing such process, as the party making such claim; and such court may exercise, for the decision of their rights, all or any of the powers and authority prescribed in the first section of this chapter.” This provision applies to any execution issued by the clerk of a circuit court, whether issued upon a judgment rendered by said court or by a justice and certified under said section 118, chapter 50. The statute makes the remedy for the claimant of property levied upon for the debt of another' clear and plain. The writ of *fun facias*is given to the court to enable it to enforce its judgments, without it the court would be powerless to carry into effect its judgments when rendered. It will surely not be contended that a proceeding to try the right of property levied upon by virtue of a writ of *-fieri facias*issued by the clerk of a circuit court upon a judgment rendered by such court, could be had before a justice either under chapter 50 or chapter 107 of the Code, and it is provided that an execution issued by the clerk on the judgment of a justice duly certified to him by the justice who has the lawful custody of the docket in which such judgment is entered, shall be with like effect as if the judgment had been rendered by the circuit court. . There is a similar proceeding provided also by the statute, chapter 50, Code, whereby the disputed title to property levied upon under process issued by a justice may be determined in a justice’s court.

It is contended by appellee that certifying the judgment by the justice to the clerk does not take from the justice the right to issue execution thereafter on the judgment from Ms docket. This is a question that seems never to have arisen or been decided in this Court and does not properly arise in this case. In *Sholts*v. *Judges of Yates County Court,*2 Cow. 506, it is held that filing the transcript deprives the justice of any further control over the judgment. See also *Diffenbach*v. *Roch,*2 L. R. A. 829, and cases there cited on this point. The plaintiff in choosing his remedy should have proceeded in the circuit court of Tucker County under chapter 107, Code, or by action on the indemnifying bond taken by the sheriff before selling the property levied upon; the latter is now the only remedy left him. For the reasons herein given the judgment of the circuit court must be reversed, the verdict set aside, and the petition dismissed without prejudice.

*Dismissed.*