Barker v. Traders Bank, 12639

• Citation: 166 S.E.2d 331,152 W.Va. 774
• Decision Date: 18 March 1969
• Docket Number: No. 12639,12639
• Court: Supreme Court of West Virginia
• Parties: Bobby BARKER et al. v. The TRADERS BANK, a Corporation, et al.

Page 331

166 S.E.2d 331

152 W.Va. 774

Bobby BARKER et al. v. The TRADERS BANK, a Corporation, et al.

No. 12639.

Supreme Court of Appeals of West Virginia.

Submitted March 4, 1969.

Decided March 18, 1969.

Syllabus by the Court

1. An order of a trial court dismissing a complaint upon motion of a defendant under the provisions of Rule 12(b), R.C.P., is interlocutory; but if in the same order the action also is dismissed such order becomes a final appealable judgment within the meaning of Code, 58--5--1, as amended.

2. Rule 8, R.C.P., contemplates a succinct complaint containing a plain statement of the nature of the claim together with a demand for judgment.

3. Whether a complaint states a claim upon which relief may be granted is to be determined solely from the provisions of such complaint and an amended complaint and a previous complaint in the same case which has been dismissed upon motion of the defendant under Rule 12(b), R.C.P., cannot be read together in determining whether the last complaint is sufficient.

Rudolph L. DiTrapano, John R. Mitchell, Thomas P. Maroney, Cabin Creek, for appellants.

George M. Scott, Spencer, for Traders Bank.

Steptoe & Johnson, Carl F. Stucky, Jr., Charleston, for Robert DePue.

BROWNING, Judge.

Plaintiffs, Bobby Barker and Patsy A. Barker, instituted this action in the Circuit Court of Roane County on January 4, 1965, against the Traders Bank, the complaint alleging that 'on or about the 7th day of July, 1964, the defendant, in a willfully, wanton, malicious and wrongful manner, converted a certain HD Allis Chalmers 6 cylinder bull dozer, 1 lowboy, Phelan trailer No. 115604 and 1 1950 International Truck Serial No. A337663, of the value of Ten Thousand Dollars ($10,000.00), the property of the plaintiffs.' as a result of which plaintiffs were damaged in the sum of Twenty-Five Thousand Dollars ($25,000.00) compensatory damages and Fifty Thousand Dollars ($50,000.00) punitive damages. A motion for a more definite statement was filed with the court, to which plaintiff consented, and in the statement filed plaintiffs set forth that on March 6, 1964, plaintiffs had executed a chattel deed of trust in favor of the defendant for one bulldozer to secure a note payable to defendant in the principal amount of $6,000, payable in twelve quarterly payments of $500 each, plus interest. The statement then asserts that the plaintiff Bobby Barker appeared at the Traders Bank on June 6, 1964, the date the first payment was due, and tendered the sum of $500 which the defendant refused to accept. The same tender was made on June 7 and refused and again on June 8 when the defendant accepted $500. On June 16, 1964, a second chattel deed of trust was executed by plaintiffs to the defendant embracing the same bulldozer but adding thereto one lowboy and one 1950 International truck. Within ten days after the execution of this second chattel deed of trust the defendant Robert DePue, as trustee for the bank, repossessed the Bulldozer, lowboy and truck, taking the bulldozer off a job where it was earning $10 per hour and on July 7, 1964, sold the three items covered by the chattel deed of trust at public sale.

The defendant bank then moved to dismiss the complaint for failure to state a cause of action upon which relief could be granted on the ground that any wrongful act as shown by the 'more definite statement' was that of DePue rather than the bank which motion was sustained by the court and the plaintiffs were granted leave to file an amended complaint on or before July 9, 1965. On July 6, 1965, plaintiffs filed an amended complaint which in substance contained the allegations of the original complaint as amplified and explained by the 'more definite statement' and joined DePue as a party defendant. Filed with this complaint as exhibits are the two chattel deeds of trust. Defendants again moved to dismiss on the ground that the amended complaint shows affirmatively that the plaintiffs were in default at the time the property was allegedly repossessed. The transcript of the record before us does not show any action by the court upon this motion to dismiss, however, on September 16, 1965, plaintiffs filed another complaint styled 'first amended complaint' which again recites the execution of the note payable in twelve quarterly payments of 'Five Hundred Dollars ($500.00) each plus interest' and alleges the tender of $500 on June 6, 7 and 8 as heretofore noted. Defendants again moved to dismiss on the ground that such amended complaint shows affirmatively that plaintiffs were in default which motion was sustained by the court with leave to plaintiffs to file a second amended complaint. On November 11, 1965, plaintiffs filed a 'second amended complaint' which alleges the execution of a note in the amount of $6,000.00 the first quarterly payment being due on June 6, 1964, and the tender on June 6, 1964, 'of all installment payments due' and the other allegations of wrongful conversion and damage. Again defendants moved to dismiss 'the second amended complaint' on the same ground theretofore asserted which action was sustained by the court by order entered July 8, 1966. This order of July 8, 1966, is set forth in part as follows: 'After maturely considering the matters of law arising upon said Motion, the Court is of opinion that plaintiffs' Second Amended Complaint, being construed together with plaintiffs' Complaint and First Amended Complaint and the exhibits therewith filed, show (sic) affirmatively that plaintiffs were in default under the chattel trust deeds mentioned in said Complaints at the time of the alleged repossession of the personal property conveyed therewith, and that, therefore, plaintiffs' said Second Amended Complaint fails to state a claim upon which relief can be granted, and the Court is of opinion to, and doth hereby, sustain defendants' said Motion to Dismiss.

'It is, therefore, ORDERED and ADJUDGED that plaintiffs' Second Amended Complaint be, and the same is hereby, dismissed, with leave to plaintiffs to file a Third Amended Complaint at any time within fifteen (15) days from and after the date hereof.

'Thereupon plaintiffs, by their said attorneys, announced to the Court that they desired to waive their right to amend said Complaint, and it is, therefore, ORDERED and ADJUDGED that this action be, and the same is hereby, dismissed.' On application of the plaintiffs this Court granted an appeal from such judgment on December 13, 1966. Thereafter, the plaintiffs were granted leave to move to reverse and the case was argued and submitted upon such motion.

Two questions are presented for decision herein: (1) the finality--and thus appealability--of the order of July 8, 1966; and (2) what the trial court may look to in order to determine whether a complaint states a claim against a defendant upon which relief may be granted. As to the first question raised, Code, 58--5--1, as amended, in unambiguous language provides that: 'A party to a controversy in any circuit court may obtain from the supreme court of appeals * * * an appeal...