Arnold v. Reynolds, (No. 8693)

• Decision Date: 21 February 1939
• Docket Number: (No. 8693)
• Citation: 121 W.Va. 91
• Parties: George S. Arnold, Receiver, etc. v. E. B. Reynolds, et al.
• Court: West Virginia Supreme Court

121 W.Va. 91

George S. Arnold, Receiver, etc.

v.E. B. Reynolds, et al.

(No. 8693)

Supreme Court of Appeals of West Virginia.

Submitted January 31, 1939.

Decided February 21, 1939.

Judgment

Where the clerk of the court before which a notice of motion for judgment was returnable, in answer to inquiry, informed defendant's counsel, in effect, that the court would not hear the matter at the return time designated in the notice, and, notwithstanding, a default judgment was entered at the time of return, the general rule requiring a statement of good defense in an affidavit in support of a motion to set aside the default judgment does not apply, and it is unnecessary, in such a case, for such affidavit to specify grounds of defense.

Error to Circuit Court, Mineral County. Action on a note by George S. Arnold, receiver of the First National Bank of Keyser, against E. B. Reynolds and Mary R. Reynolds, wherein a default judgment was entered for the plaintiff. To review a judgment overruling the defendants' motion to set aside a default judgment and permit the filing of a demurrer to plaintiff's notice of motion for judgment, the defendants bring error.

Reversed and remanded.

William MacDonald, for plaintiffs in error. Harry K. Drane, for defendant in error.

Riley, Judge:

The defendants, E. B. Reynolds and Mary R. Reynolds, prosecute this writ of error to a judgment of the circuit court of Mineral County overruling their motion to set aside a default judgment and permit the filing of a demurrer to plaintiff's notice of motion for judgment.

The plaintiff, George S. Arnold, Receiver of the First National Bank of Keyser, caused a notice of motion for judgment on a note in the principal amount of $700.00 to be served on the defendants, returnable August 4, 1937, at the July term of the circuit court. To it the statutory affidavit of claim was attached. On the return day, neither the defendants nor their counsel appeared, and the defendants having been called thrice in open court, judgment was entered against them in the amount of $850.98, with interest and costs. On the following day, defendants' counsel appeared and moved the court to set aside the judgment. In support of this motion, William MacDonald, Esq., who alone was counsel for defendants in the trial court, presented to the court his affidavit reciting that he had inquired of the clerk as to whether there would be any court on August 4, 1937, and had made the same inquiry of the sheriff; that he was assured by the clerk and the sheriff that the judge would not hold court for any matters except to take testimony in a divorce suit; and that "defendants would present a defense" and now insist upon a jury trial. At the same time, a demurrer on behalf of the defendants was tendered to the court. Later in the term, August 16th, the court entered an order filing the affidavit and overruling defendants' motions to set aside the judgment and permit the filing of a demurrer. This order recites simply that "the court does not deem there to be sufficient reason given for the setting aside of the judgment rendered therein."

The affidavit, while reciting the circumstances which counsel claim prevailed upon him not to appear on the return day in defense of the notice of motion for judgment, does not specify any ground of defense. No plea or counter-affidavit was filed.

Defendants' counsel assert that MacDonald failed to appear because of accident, mistake, surprise and adventitious circumstances beyond defendants' control. Evidently reliance is had upon the rule contained in point 1, syllabus, Post v. Carr, 42 W. Va. 72, 24 S. E. 583: "After judgment by default has been entered up in court, or an order of inquiry of damages has been executed, under section 46, chapter 125, code, it cannot be set aside, and a defense to the action be allowed, under section 47, without good cause being shown therefor; and such good cause can only appear by showing fraud, accident, mistake, surprise, or some other adventitious circumstance beyond the control of the party, and free from neglect on his part." The general rule, however, is that a complaining judgment debtor, in order to have set aside a default judgment, must show, in addition to sufficient grounds for his failure to appear and interpose a defense, that he actually had a good defense to the action. In Gainer v. Smith, 101 W. Va. 314, 132 S. E. 744, point 1, syllabus, this Court said: "In order to set aside a default judgment, regularly obtained by due process of law, the party complaining must show that he has a good defense, and that his failure to appear and assert that defense was because of fraud, accident, surprise, mistake, or some adventitious circumstance over which he had no control, and that he was free from neglect in not making timely defense." (Italics supplied.) The same rule was followed in Black v. Foley, 117 W. Va. 490, 185 S. E. 902, and State ex rel. Alkire v. Mili, 116 W. Va. 277, 180 S. E. 183. See also, Robinson v. Braiden, 44 W. Va. 183, 28 S. E. 798. Here, the affidavit in support of defendants' motion does not in anyway indicate any ground of defense.

Defendants' counsel rely upon Black v. Foley, supra, and Willson v. Ice, 78 W. Va. 672, 90 S. E. 272. Both cases represent the following exception to the general rule: Where a defendant or his counsel, by a misunderstanding had with a plaintiff or his counsel, is led to believe that a case will not be heard or tried on a return day, it becomes unnecessary to show a good defense. In Willson v. Ice, supra, the affidavits in support of the motion, though not disclosing any grounds of defense, show that defendants...