Abm'rs v. Bright's Adm'r.

• Decision Date: 07 May 1881
• Citation: 17 W.Va. 779
• Court: West Virginia Supreme Court
• Parties: Laidley's Abm'rs v. Bright's Adm'r.

17 W.Va. 779

Laidley's Abm'rs

v.Bright's Adm'r.

Supreme Court of Appeals of West Virginia.

Decided May 7, 1881.

On the trial of a motion to reverse a judgment by default, made in a circuit court under the 5th section of ch. 131 of the Code, the court ought to permit a sheriff to correct his return on the summons in the suit according to the facts, but ought not to permit the clerk to correct the summons itself, though he has made a mist ike by inadvertence in issuing it.

2. In such a case, if the judgment by default was a joint judgment against several defendants, and it appears, that the writ, a copy of which was served on some of the defendants, was not signed by the clerk, such judgment should be reversed, and the cause remanded to rules to be properly proceeded with.

3. Quoere: Whether on such a motion the circuit court should consider any errors in the proceedings or judgment except those specifically pointed out in the notice as the basis of the motion.

4. The only change in the pre-existing law produced by the 11th section of eh. 99 of the Code is to allow a joint action of assumpsit against certain defendants, who before the passage of that section could be sued jointly in an action of debt only.

5. Since the passage of our Code, as before, a single bill under seal is not a note, but a specialty; and therefore the drawer and endorsers of such single bill, though it be made payable and negotiable at a bank in the State, cannot be sued jointly in debt or in assumpsit by virtue of said 11th section of ch. 99 of the Code. See Mann v. Sutton, 5 Rand. 253.

6. If an execution has issued on a judgment, and a forthcoming bond has been given thereon and forfeited, and another judgment entered awarding an execution thereon, a writ of error and supersedeas should be awarded for error in the first judgment not only to it but also to the judgment awarding execution on the forthcoming bond.

Writ of error and supersedeas to two judgments of the circuit court of the county of Kanawha, one of which was rendered on the 27th day of June, 1879, and the other on the 18th day of December, 1879, in an action in said court then pending, wherein Albert Laidley?s administrators were plaintiffs and M. A. Bright's administrator was defendant, allowed upon petition of defendant.

Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the judgments complained of.

Green, President, furnishes the following statement of the case:

M. A. Capehart on March 21, 1874, instituted an action of debt against F. D. Beuhring, F. E. Beubring, Albert Laidley, James F. Hansford, George P. Thompson jointly on the following writing:

"Sixteen months after date we or either of us promise to pay to the order of Albert Laidley $1,000.00, for value received, with interest from date, payable and negotiable at the Bank of Huntington, West Virginia.

"Witness our hands and seals this date, October 22, 1872. "F. D. Beuhring, [Seal.]

"F. E. Beuhring, [Seal.]"

On the back of which were the following names in their order: Albert Laidley, James F. Hansford, George P. Thompson, M. A. Capehart and these words: "Pay John H. Russell, cashier or order for collection and return." The first summons was regular on its face to answer M. A. Capehart of a plea of debt $1,002.30 damages $50.00 but there was no signature to the writ, simplyclerk at its foot. This process was returned thus endorsed: "Executed April 2, 1874, by delivering an office-copy thereof to F. D. Beuhring, F. E. Beuhring and Albert Laidley, the other defendants no inhabitants,

"D. J. Smith."

This summons was addressed: "To the sheriff of Cabell county."

On March 23, 1874, another summons precisely like the first was issued, addressed: "To the sheriff of Kanawha county," and signed, "W. E. Gillison, clerk;" and this was returned thus: "Served on James F. Hansford and George P. Thompon on the 2d day of April, 1874, by delivering an office-copy of this writ to each of them; and as to the others no inhabitants of my county, and not found.

"B. F. Wyatt," D. for P. W. Morgan, 8. K. C."

On the return day of these writs, at April rules, 1874, the plaintiff filed his declaration. It was just such a declaration as ought to have been filed, if the writing sued on had been a negotiable note instead of a writing under seal; except that it says:" That heretofore to wit on the 22d day of October, 1872, the said F. D. Beuhring and F. E. Beuhring made their certain note in writing under seal, &c," describing it correctly. It set forth the protest of this note, as it is called, in the usual form. This declaration was in its form taken from Mathews's forms, except that in describing the note it is said, as above, under seal. A protest in the usual form accompanied this writing. A regular rule to plead was given to all the defendants, they being all regarded as duly summoned by the clerk, and an office-judgment was entered up by the clerk at rules against all the defendants; and they not appearing at the May rules, this office-judgment was entered as confirmed by the clerk.

At the next term of the circuit court of Kanawha county on May 29, 1874, the following entry was made by the court in this canse:" This day came the plaintiff, by her attorneys, and on her motion this cause is continued as to the defendant, F. E. Beuhring, until the next term of this court; and neither of the other defendants appearing, and the plaintiff not desiring a jury, this cause is submitted to the court in lieu of a jury, to ascertain the amount the plaintiff is entitled to recover from the defendants, F. D. Beuhring, Albert Laidley, James F. Hansford and George P. Thompson; and the court, after hearing the evidence, is of opinion that the plaintiff is entitled to recover against the said last named defendants the sum of $1,095.15, being the debt in the declaration mentioned, including interest to date. It is therefore considered by the court, that the plaintiff recover against the said defendants, F. D. Beuhring, Albert Laidley, James F. Hansford and George P, Thompson, the said sum of $1,095.15, with interest thereon from the 29th day of May, 1874, till paid, and her costs by her about the prosecution of her suit expended, including $15.00 as allowed by law."

On July 20, 1874, a writ of fieri facias was issued on this judgment and levied on certain property of the defendant, F. D. Beuhring; and a forthcoming bond was given and forfeited and duly returned. Notice was given on this forfeited forthcoming bond, and a judgment rendered, or more properly an award of execution thereon made against F. D. Beuhring, J. S. Miller and Albert Laidley, obligors in said bond. F. E. Beuhring was also an obligor in this bond; but no notice was taken of her. An execution was issued on this forfeited forthcoming bond and was paid in full by the defendant, Albert Laidley, to D. F. Smith, sheriff of Cabell county, and the execution so returned, also that the same had been paid over to Hedrick & Couch. They were the plaintiff's counsel in the suit.

The defendant, Laidley, died, and the plaintiff married J. D. Bright; and the administrator of Laidley gave this notice to Bright and wife:

" M. A. Capehart v. F. D. Beuhring, F. E. Beuhring, Albert Laidley, James F. Hansford and Geo. P. Thompson. In debt. Upon a motion to reverse a judgment by default,

" M. A. Bright, late M. A. Capehart, the plaintiff in the above entitled action, and J. D. Bright, her husband, are hereby notified that on the 2d day of the next term of the circuit court of Kanawha county, to wit, on the 5th day of November, 1878, we will move said court to reverse and set aside a judgment by default rendered by said court on the 29th day of May, 1874, in the above entitled action, in favor of M. A. Capehart against F. D. Beuhring, Albert Laidley, James F. Hansford and Geo. P. Thompson, for the sum of $1,095.15 and costs, for the following errors apparent upon the record:

" 1. There was no service of summons upon P. D. Beuhring, F. Beuhring and Albert Laidley.

" 2. There is a variance between the writ of summons and the declaration. The debt described in the declaration is larger than and different from that described in the writ.

"3. The declaration describes, as the foundation of said action, a "note in writing under seal, "and a joint judgment was rendered upon said declaration against F. D. Beuhring, whose name is signed to said "note in writing under seal," and Albert Laidley, James F. Hansford and Geo. P. Thompson, whose names are written upon the back of said "note in writing under seal," and who are only liable as assignors of a common law security, and not as endorsers of a negotiable instrument.

"4. The "note in writing under seal" described in said declaration, is not a negotiable instrument under the laws of the State of West "Virginia, and would not entitle the plaintiff to a joint judgment against an intermediate number of the makers and assignors thereof, because said note in writing, though payable in the State of West Virginia, was not payable at a particular bank or at a particular office thereof for discount or deposit, nor at the place of business of a savings-institution or savings-bank.

" The plaintiff has not alleged in her declaration that she was compelled to pay, and did pay, the cost of protest described in said declaration, to wit, $2.00, end yel she obtained judgment for the same against the defendants.

" 6. And many other errors apparent upon the record." Respectfully,

" John B. Laidley and " L, H. Bubk,

" Administrators of Albert Laidley, deceased.

" By Counsel."

This notice was served on Bright and wife on September 7, 1878, and was regularly docketed on the day mentioned in the notice, that is, on November 5, 1878, and the administrator of A. Laidley moved the court to reverse the judgment rendered in said case on May 29, 1874, for errors apparent upon the record. On June 27, 1879, the court rendered this judgment on this motion: "Administrators of ...