Marmet Co. v. Archibald
| Decision Date | 01 April 1893 |
| Citation | 17 S.E. 299,37 W.Va. 778 |
| Parties | MARMET CO. v. ARCHIBALD. |
| Court | West Virginia Supreme Court |
Submitted January 27, 1893.--
Syllabus by the Court.
1. Where an action of unlawful detainer is brought by a mining company, in its proper corporate name, against one of its tenants, who had leased one of its tenement houses, and had been engaged in mining coal for it, although the lease was in writing, and executed by said corporation under a name different from its true corporate name, assumed for its own convenience, the tenant accepting said lease, and occupying said premises, and paying rent thereunder, is estopped from denying the power of said corporation to contract in its assumed name.
2. A contract entered into by a corporation under an assumed name may be enforced by either of the parties, and the identity of the company may be established by the ordinary methods of proof.
3. Where a lease provides that the same shall terminate and cease whenever the lessee, from any cause, ceases to work for the lessor, and it appears that the lessee had ceased to work for the lessor before the action was commenced, said lessee is not entitled to notice to quit.
4. A court, in granting or refusing a continuance of a cause ought to exercise a sound discretion, and if a party be ruled into a trial or hearing of a cause, when it appears he was entitled to a continuance, the judgment or decree against him will be reversed by an appellate court; but the appellate court will not reverse the judgment or decree of the inferior court for such reason unless its action was plainly erroneous.
Error to circuit court, Putnam county.
Action of unlawful detainer by the Marmet Company against P Archibald to recover the possession of a certain messuage and tenement belonging to plaintiff. There was a verdict for plaintiff, and, defendant's motion to set it aside and grant a new trial being denied, he brings error. Affirmed.
J. B Menager, Simpson & Howard, and Simpson & Thomas, for plaintiff in error.
Brown Jackson & Knight, for defendant in error.
ENGLISH, P.
This was an action of unlawful detainer brought in the circuit court of Putnam county by the Marmet Company against P Archibald on the 6th day of February, 1891, to recover the possession of a certain messuage and tenement situated in Pocatalico district, Putnam county, W. Va., known and designated as "No. 75" of the plaintiff's coal property in said district. On the 25th day of February, 1891, the defendant, by his attorney, moved to quash the summons issued in the cause, which motion was overruled, and thereupon the defendant plead not guilty; and on his motion the cause was continued on account of the absence of L. W. Britton, J. M. Ingram, and Lida Nunley, witnesses for the defendant, and at his costs. On the 6th day of April, 1891, the defendant tendered a plea denying the existence of the plaintiff as a corporation, as alleged in the summons, which plea was sworn to, to the filing of which the plaintiff objected, which objection was overruled, and the same was ordered to be filed, and on the same day the cause was submitted to a jury, and on the 7th day of April, 1891, said jury returned a verdict for the plaintiff for the premises in the summons described; and thereupon the defendant moved the court to set aside the verdict, and grant him a new trial, because the same was contrary to the law and the evidence, which motion was overruled, and the defendant excepted, and judgment was rendered upon said verdict in favor of the plaintiff. On the 9th day of April, 1891, the defendant suggested that the plaintiff was a nonresident of the state of West Virginia, and required security for costs, which suggestion and motion were considered by the court, and overruled; and the defendant excepted to the action of the court in refusing to require security for costs, and also in refusing to continue said cause, which order appears to have been omitted at a former day, and was entered as a nunc pro tunc order, from which rulings and judgment of the court the defendant obtained this writ of error. At the time this cause was called for hearing in this court an affidavit was filed, showing that possession of the property in controversy had been delivered to the plaintiff, so that the object of the suit in the circuit court had been accomplished, and a motion was predicated upon the facts stated in the affidavit to dismiss this writ of error, which motion was made by counsel for the defendant in error. This motion should not prevail, for the reason that the plaintiff in error is entitled to the judgment of this court upon the status existing at the time the judgment was rendered against him, and upon the rulings and action of the circuit court in rendering the same; and the mere fact that the tenant had removed from the premises in controversy would not prevent him from having the correctness of the judgment of which he complains passed upon by this court.
The first error assigned by the plaintiff in error relates to the action of the circuit court in overruling the motion to quash the summons issued in the case. The summons appears to be in proper form, and to have been properly served. Section 1 of chapter 89 of the Code requires that the premises shall be described with convenient certainty. Was this requirement of the statute complied with in this instance? The summons describes the property unlawfully withheld "as a certain messuage and tenement situate in Pocatalico district, Putnam county, West Virginia, known and designated as 'No. 75' of the plaintiff's coal property in said district." Now, in legal acceptation, the word "messuage" is defined as "a dwelling house, with the adjacent buildings and curtilage;" and the word "tenement," as property held by a tenant. So that we may construe the description contained in said summons to designate a certain dwelling house, with its curtilage and appurtenances, known as "No. 75" of the plaintiff's coal property, situated in Pocatalico district, in Putnam county, W.Va. We are to presume from this that the company's tenement houses were numbered, and the summons gives, not only the number of the house, but the district, county, and state in which it is situated. In the case of Hawkins v. Wilson, 1 W. Va. 117, it was held that a summons which described the property as "a certain house, and its appurtenances, in Monongalia county, *** being the same purchased by said plaintiff from said defendant, and the same house now in the occupancy of said defendant," described the property "with convenient certainty," and comparing the case at bar with the case of Hawkins v. Wilson, supra, we can but say that the description contained In the case under consideration is more definite and certain than that in the case of Hawkins v. Wilson, and our conclusion is that the property in this case was described with that "convenient certainty" prescribed by the statute, and that the circuit court committed no error in overruling the motion to quash the summons.
The second assignment of error claims that the court erred in refusing to require the plaintiff to give security for costs as required by the law of this state, of nonresidents. Section 2 of chapter 138 of the Code provides, among other things that, after 60 days from such suggestion that the plaintiff is a nonresident, the suit shall, by order of the court, be dismissed, unless before the dismission the plaintiff be proved to be a resident of the state, or security be given before said court, etc. Did the circuit court err in refusing to require the plaintiff to give security for costs, under the state of facts disclosed by the plaintiff's evidence? Section 24 of chapter 54 of the Code provides that every such corporation having its principal office or place of business outside of this state shall, within thirty days after organizing, by power of attorney duly executed, appoint some person residing in this state to accept service on behalf of said corporation, and upon whom service may be had of any process or notice, and to make return of its property in this state for taxation. It also provides for the recordation of said power of attorney in the clerk's office of the county court of the county in which said attorney resides, and that the same shall be filed and recorded in the office of the secretary of state, and that the admission to record of such power of attorney shall be deemed evidence of compliance with the requirements of said section. Said section further provides that any corporation failing to comply with said requirements within six months after the passage of said act should forfeit not less than $200 nor more than $500, and should, moreover, during the continuance of such failure, be deemed a nonresident of this state, etc. It appears from the record that said corporation had recorded its articles of incorporation, as required by said section 24 of chapter 54 of the Code, and had also, by power of attorney duly recorded, appointed as attorney in fact in Putnam county, in pursuance of the requirements of said section, soon after commencing to do business in said county, and before the institution of said suit; and, not having failed to comply with the requirements of said section, it would neither be subject to the pecuniary forfeiture therein prescribed, nor be liable to be deemed a nonresident of the state. The plaintiff, having, as we have seen, complied with the requirements of the statute, would, under section 30 of said chapter, be entitled to the same rights and privileges, and be subject to the same regulations, restrictions, and liabilities, that are conferred and imposed by the fifty-second, fifty-third, and fifty-fourth chapters of the Code, and by chapter 20 ...
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