Bennett v. General Acc. Fire & Life Assur. Corp.

Decision Date11 March 1964
Docket NumberNo. CC,CC
Citation135 S.E.2d 96,148 W.Va. 338
CourtWest Virginia Supreme Court

Syllabus by the Court

A question, or questions, of law arising under an appealable order or decree may not be certified.

David D. Ashworth, Lynch & Henderson, G. Berk Lynch, Beckley, for plaintiff.

Scherer, Bowers, File & Hodson, Donald D. Hodson, Beckley, for defendant and third-party plaintiff.

Fletcher W. Mann, Beckley, for third-party defendants.


Plaintiff, Jerry G. Bennett, recovered a default judgment against one Allison, a jury awarded damages in the amount of $35,000.00 and judgment was entered thereon. That judgment remaining unsatisfied and an execution returned 'No property found.', plaintiff instituted the present action against the defendant, General Accident Fire and Life Assur. Corp., Ltd., the liability insurance carrier of Allison. Defendant impleaded Lilly as a third-party defendant, and defendant, and third-party defendant moved to dismiss the complaint on the ground that the default judgment against Allison was void and unenforceable.

On July 20, 1963, at the July term of Court, the matter came on to be heard and an order was entered reciting '* * * that the defendant * * * and the third party defendants * * * had moved the court to dismiss this complaint upon the ground that the default judgment upon which the action is based is void and unenforceable and the court * * * doth sustain said motion * * * [and] the said motion to dismiss this action is hereby sustained. * * *' (Italics supplied), and the court, on its own motion, certified the question of law arising thereon to this Court. Subsequently, on September 13, 1963, at the August term of said court, a motion by counsel for plaintiff to amend that order to show the objection of the plaintiff to the filing of the record in the Allison case as a part of the record herein and to show the dismissal of plaintiff's complaint, rather than the dismissal of the action, was sustained, the order of July 20, 1963, was so amended, and the question, 'Is the default judgment upon which the present suit is based void.', certified to this Court.

Code, 58-5-2, provides that: 'Any question arising upon the sufficiency of a summons or return of service, or challenge of the sufficiency of a pleading, in any case within the appellate jurisdiction of the...

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3 cases
  • State v. Brown
    • United States
    • West Virginia Supreme Court
    • March 23, 1976
    ...court to this Court by certificate, being in derogation of the common law, is strictly construed. Bennett v. General Accident Fire and Life Assurance Corp., 148 W.Va. 338, 135 S.E.2d 96 (1964); State v. DeSpain, 139 W.V. 854, 81 S.E.2d 914 (1954); Carper v. Montgomery Ward & Co., 123 W.Va. ......
  • Toler v. Shelton, CC896
    • United States
    • West Virginia Supreme Court
    • March 30, 1976
    ...So, certifiability being a jurisdictional question, this Court will examine and decide it Sua sponte. Bennett v. General Assur. Corp., 148 W.Va. 338, 135 S.E.2d 96 (1964); Leishman v. Bird, 147 W.Va. 525, 129 S.E.2d 440 (1963); State v. DeSpain, 139 W.Va. 854, 81 S.E.2d 914 (1954); Carper v......
  • Barker v. Traders Bank, 12639
    • United States
    • West Virginia Supreme Court
    • March 18, 1969
    ...upon certificate but can be reviewed by this Court only upon appropriate appellant process.' In Bennett v. General Accident Fire & Life Assurance Corp., 148 W.Va. 338, 135 S.E.2d 96, this Court held that a question could not be certified under Code, 58--5--2, as amended, after an order cont......

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