Anderson v. Dooeittee

• Decision Date: 09 December 1893
• Citation: 38 W.Va. 629,18 S.E. 724
• Parties: ANDERSON v. DOOEITTEE et al.
• Court: West Virginia Supreme Court

18 S.E. 724

38 W.Va. 629

ANDERSON

v.DOOEITTEE et al.

Supreme Court of Appeals of West Virginia.

Dec. 9, 1893.

Default Judgment—Practice —Pleadings—Variance between Writ and Declaration—How Questioned.

1. Where the clerk improperly enters an order for a writ of inquiry in an aclion for debt, at rules, the court may correct the mistake, or disregard the same, and enter judgment as though no such order had been entered.

2. An amendable variance between the writ and declaration can only be taken advantage of by plea in abatement, and not on motion to correct the judgment after it has become final.,

3. A judgment will be presumed to be right, unless error affirmatively appear on the face of the record.

4. It is not necessary to make the facts proven, nor the evidence, a part of the record, in case of a judgment by default.

5. If any part of the evidence is referred to in the preamble to the judgment, this, of itself, is insufficient to preclude the fact that other evidence might have been heard by the court, unless it affirmatively appear from the record that this was all the evidence heard by the court.

(Syllabus by the Court.)

Error to circuit court, Cabell county; Thomas H. Harvey, Judge.

Action by Joseph Anderson against E. S. Doolittle and others. Plaintiff had judgment, and, their motion to set aside the same having been overruled, defendants brings error. Affirmed.

John B. Laidley and E. S. Doolittle, for plaintiffs in error.

Gunn Switzer, for defendant in error.

DENT, J. On the 9th day of May, 1892, E. S. Doolittle, P. L. Doolittle, and C. Molter, after notice given, moved the judge of the circuit court of Cabell county to set aside ajudgment by default rendered by said court in favor of Joseph Anderson, and against them, for the sum of $636.27 and costs, in a certain action of debt in said court pending. The judge entered a vacation order overruling said motion, and the defendants in said action obtained a writ of error, and rely on the following assignments of error: "(1) The writ of inquiry awarded at March rules, 1S92, in said action, was never executed in the manner required by law. (2) There is a variance between the writ and the declaration. The declaration demands two distinct debts, for which judgment was rendered, while the writ demands one only. (3) The plaintiff did not file with his declaration, or in open court, and before the entry of the judgment, the affidavit prescribed in such cases by section 46 of chapter 125 of the Code of West Virginia, nor did he prove his case in open court. Therefore, the circuit court had no jurisdiction to render the judgment entered in said action on the 24th day of March, 1892."

The first assignment is a mere clerical error. Section 45, c. 125, provides that "there need be no such inquiry in an action of debt;" and section 60 of the same chapter provides that "the court shall have control over all proceedings in the office during the preceding vacation. It may reinstate any cause discontinued during such vacation, set aside any of the proceedings or correct any mistake therein and make such order concerning same as may be just." In this case, entering up the judgment in court, and disregarding the writ of inquiry, was a sufficient correction of the mistake.

As to the second assignment of error, the defendants are barred from relying upon it by section 15, c. 125, of the Code, which provides: "In other cases, the defendant on whom the process summoning him to answer appears to have been served, shall not take advantage of any defect in the writ or return, or any variance in the writ from the declaration unless the same be pleaded in abatement. And in every such case the court may permit the plaintiff to amend the writ or declaration so as to correct the variance and permit the return to be amended upon such terms as to it shall seem just." The court, after judgment by default on a motion to correct, will only look...