Bank v. Fridley

• Decision Date: 01 October 1940
• Docket Number: No. 9007.,9007.
• Citation: 10 S.E.2d. 907
• Court: West Virginia Supreme Court
• Parties: WINONA NAT. BANK. v. FRIDLEY et al.

10 S.E.2d. 907

WINONA NAT. BANK.

v.FRIDLEY et al.

No. 9007.

Supreme Court of Appeals of West Virginia.

Oct. 1, 1940.

Syllabus by the Court.

Under Code, 56-4-52, a default judgment against a defendant may not, on his motion, be set aside upon the mere prima facie showing of a just defense to the claim on which it is founded; there must be a further showing that the failure to present such defense was the result of fraud, accident, mistake, surprise, or other adventitious circumstance beyond his control, and that he was free from any neglect in relation thereto.

Error to Circuit Court, Fayette County.

Action by the Winona National Bank against J. H. Fridley and others on a note, wherein plaintiff recovered judgment. To review an order setting aside the judgment, plaintiff brings error.

Order reversed and case remanded, with instructions.

W. L. Lee, of Fayetteville, for plaintiff in error.

T. A. Myles, of Fayetteville, for defendant in error.

FOX, Judge.

On the 3rd day of August, 1938, in an action before a justice, The Winona National Bank recovered a judgment against J. H. Fridley and W. M. Casto for the aggregate sum of $310.52 and $6 costs, on a note of $300, executed by H. P. Fridley to the said bank on or about the 18th day of October, 1937, and bearing the indorsement of J. H. Fridley, W. M. Casto and J. A. Arrington. H. P. Fridley died before the institution of the action in which the judgment was rendered. There was some irregularity as to the service of process on Casto, and he did not appear at the trial before the justice. J. H. Fridley and Arrington appeared, Arrington made his defense and judgment was rendered in his favor. Later, on the 13th day of August, Fridley and Casto filed their bond and secured an appeal from said judgment to the Circuit Court of Fayette County The regular term of said court following said appeal convened in September, but no trial docket was made up for that term. At the January term, 1939, and on February 9th of that year, the day said action was set for trial, there being no appearance on the part of either Fridley or Casto, the case was, on motion of the plaintiff, submitted to the court in lieu of a jury, upon the pleadings before the justice, and the note on which the suit was instituted, and judgment rendered in favor of the plaintiff, not only against Fridley and Casto, but against Arrington as well. On the 16th of February, 1939, and at the same term of court, Fridley, Casto and Arrington filed their joint petition asking the court to set aside the judgment which had been entered earlier in the term, and prayed that Arrington be discharged from liability on the note in action, and that Fridley and Casto be given an opportunity to present proof showing that their signatures thereto were forged and that they were not liable thereon. What appears to be an agreed order was entered granting the prayer of the petition as to Arrington, but the setting aside of the judgment as to Fridley and Casto was resisted by the bank. The matter was finally determined on June 14, 1939, upon affidavits and testimony, and upon the writ-ten opinion of a reputed handwriting expert, and an order was entered under the provisions of Code, 56-4-52, setting aside the judgment of February 9, 1939, in favor of the bank, and granting Fridley and Casto the right to make defense in the action. To this ruling of the court the bank excepted and prosecutes this writ of error.

Any irregularity in the proceedings before the justice seems to have been waived, and is not relied upon by counsel for the defendants in error. The case of Snyder v. Lyons, 94 W.Va. 489, 119 S.E. 286, is authority for the proposition that where a defendant appeals from the judgment of a justice, he thereby waives all irregularities in the proceedings before the...