Baker v. Et At.
| Decision Date | 12 February 1946 |
| Docket Number | (No. 9745) |
| Court | West Virginia Supreme Court |
| Parties | Irma Baker v. W. F. Gaskins et at. |
To show the good cause which the law requires to justify a trial court, at the instance of a defendant, in setting aside, during the term at which it was rendered, a final judgment against absent defendants duly served with process in a civil action regularly matured for trial, the existence of fraud, accident, mistake, surprise or some other adventitious cir- cumstance beyond their control, and free from their neglect, which prevented them from making timely defense, must be satisfactorily established.
Prolonged absence of an attorney who formerly represented a defendant in a case, due to his military service which continued until after trial at which a final judgment was rendered against absent defendants who had been duly served, failure of such defendants to obtain the services of another attorney, and their lack of information that the case would be, or was, tried and judgment entered, until after its rendition, do not constitute good cause for setting aside such judgment during the term of court at which it was rendered.
Error to Circuit Court, Doddridge County.
Action on note by Irma Baker against W. F. Gaskins and others. The action originated before a justice of the peace and was appealed to the circuit court. To review an order setting aside a judgment for the plaintiff, the plaintiff brings error.
Reversed and remanded with directions to reinstate judgment.
L. W. Chapman and P. M. Ireland, for plaintiff in error.
This case is here on writ of error to an order of the Circuit Court of Doddridge County entered April 16, 1945, which vacated, set aside and annulled a judgment rendered by that court, in favor of the plaintiff, for $278.40, with interest and costs, on April 4, 1945, a former day of the same regular term of the court.
Twice previously this action has been reviewed by this Court. The first writ of error, by which the plaintiff sought to reverse an order of the trial court rendering judgment for costs alone in favor of the defendants, was dismissed, as having been improvidently awarded, for the reason that, though there was a directed verdict for the defendants, no judgment was entered by which the matters in difference between the parties were adjudicated. Baker v. Gaskins, 124 W. Va. 69, 19 S. E. 2d 92. Thereafter a second trial was had in the Circuit Court which resulted in a directed verdict in favor of the defendants, upon which a final judgment was entered. Upon the second writ of error to this Court, that judgment was reversed, the verdict was set aside, and a new trial was awarded for reasons stated in the opinion. Baker v. Gaskins, 125 W. Va. 326, 24 S. E. 2d 277.
The action originated before a justice of the peace and it is based upon a note in the principal sum of $132.00, dated October 8, 1926, payable to the plaintiff and signed by the defendants, W. F. Gaskins, E. A. Baker and Charles E. Baker, as makers. The defendants had been partners in a restaurant business which had been conducted in a lunch wagon owned by them in West Union, Doddridge County, West Virginia. Charles E. Baker, the husband of the plaintiff, and E. A. Baker are brothers. At the time the action was instituted on November 12, 1940, the plaintiff and her husband were living in Ohio and he was not served with process and has never made any appearance in the case, which has been prosecuted against the other two defendants. The note upon which the plaintiff bases her claim represents wages owed by the defendants to the plaintiff for her services while working for them at the lunch wagon for a period of eleven weeks at the weekly rate of $12.00. By its terms the note is to be paid in full when complete settlement is made of the lunch wagon business. The defendants sold the lunch wagon in 1938, thereafter disposed of substantially all the property and the assets of the partnership, and, for a period of years, made no effort to settle the partnership accounts until after demand for payment was made by the plaintiff. Upon the foregoing material facts, here merely summarized, which are fully detailed and discussed in its opinion, this Court, in its second review of the case, construed the terms of the note relative to the time of payment to require payment by the makers on demand after a reasonable time, reversed the judgment in favor of the defendants, and remanded the case for a new trial.
This action was again placed upon the docket of the Circuit Court of Doddridge County. On August 3, 1943, the plaintiff, by L. W. Chapman, her attorney, and the defendant, W. F. Gaskins, by P. Douglass Farr, his attorney, appeared in the case and informed the court that they had agreed that the action be placed on the docket at the head of the list of civil actions pending upon appeal, for the purpose of having a definite date set for the trial at the next regular term of the court, provided that the parties should then be ready for trial. The court approved the foregoing arrangement and entered an order which carried it into effect. Between the August, 1943, and the April, 1945, terms of the court, no action was taken in the case by any party. In the interim, Mr. Farr, the attorney for the defendant, W. F. Gaskins, entered the military service of the United States on November 27, 1943, and on December 9, 1943, by order of the court, he was granted a leave of absence for an indefinite period. He was still in the military service and consequently absent from his practice when the order of April 16, 1945, which is here under attack, was entered.
On April 4, 1945, which appears to have been the second, day of the regular April, 1945, term of the Circuit Court, the plaintiff, by her attorney, appeared and moved for trial of the case. The defendants, W. F. Gaskins and E. A. Baker, who had formerly appeared and made defense to the action, were not present in person or by counsel. They were thrice called at the bar of the court and, the defendants still not appearing, the plaintiff waived a jury, and the action was tried by the court in lieu of a jury. Upon the evidence introduced in behalf of the plaintiff, judgment was rendered in favor of the plaintiff and against the defendants W. F. Gaskins and E. A. Baker for $278.40, with interest and costs. Later in the same term of court, on April 16, 1945, the defendant, W. F. Gaskins, appeared and moved the court to set aside the foregoing judgment. No grounds were specified in the motion, which was in writing, but the defendant, Gaskins, filed his supporting affidavit. This affidavit, after detailing some of the former proceedings in the case, urged as reasons for vacating the judgment of April 4, 1945: the agreement of August 3, 1943, already referred to, relative to the trial of the case at the next ensuing regular term of court, if the parties should then be ready for trial; the continuous absence of his attorney, Mr. Farr, in the military service, from November 27, 1943, to the date of the filing of the affidavit, as a consequence of which the affiant was without the services of any attorney; the lack of any notice or information by the affiant of any intention upon the part of the plaintiff to call the case for trial on April 4, 1945; and the absence of any knowledge by him of...
To continue reading
Request your trial
-
Harper v. Pauley
...the plea to be filed and in sustaining the demurrer to the plea after the final decree had been entered was erroneous, Baker v. Gaskins, 128 W.Va. 427, 36 S.E.2d 893; Post v. Carr, 42 W.Va. [139 W.Va. 42] 72, 24 S.E. 583; and such action did not operate to overcome the waiver by the defenda......
- Staats v. McCarty, (No. 9841)
- Staats v. Mccarty Et Ux
-
Plumley v. May, 10708
...questions involved were reviewed and discussed. Later decisions are: Reed v. Higginbotham, 129 W.Va. 707, 41 S.E.2d 668; Baker v. Gaskins, 128 W.Va. 427, 36 S.E.2d 893; Winona National Bank v. Fridley, 122 W.Va. 479, 10 S.E.2d 907; Arnold v. Reynolds, 121 W.Va. 91, 2 S.E.2d 433; Black v. Fo......