Bluefield Supply Co v. Waugh
| Decision Date | 18 September 1928 |
| Docket Number | (No. 6274.) |
| Citation | 145 S.E. 584 |
| Parties | BLUEFIELD SUPPLY CO. v. WAUGH. |
| Court | West Virginia Supreme Court |
Rehearing Denied Dec. 5, 1928.
(Syllabus by the Court.)
Error to Circuit Court, Mercer County.
Action by the Bluefield Supply Company against Harry M. Waugh. Judgment for plaintiff on its notice of motion for judgment, and defendant brings error. On plaintiff's motion to affirm judgment. Affirmed.
James S. Kahle and John Kee, both of Bluefield, for plaintiff in error.
Russell S. Ritz, of Bluefield, for defendant in error.
LIVELY, P. On a notice of motion for judgment, plaintiff, Bluefield Supply Company, recovered judgment for $19,832.28 against the defendant, Harry Waugh. Recovery was sought on eight notes for the sum of $2,000 each and interest thereon, an itemized open account for merchandise, amounting to $2,024.73, and an account of certain money advanced for the use and benefit of the defendant, amounting to $527.37. These amounts were supported by affidavit.
At the trial the defendant appeared specially and moved the court to quash the two returns of the sheriff upon the notice and to dismiss the action, which motion was overruled. Thereupon defendant asked that the case be continued until the next term of court. A continuance was not granted, because defendant had refused to file a counter affidavit and plead to the notice of motion for judgment. The defendant then asked for a writ of inquiry to determine the amount which the plaintiff was entitled to recover. Upon the trial of the writ, the plaintiff offered the notes in evidence and introduced proof In support of the other Items contained in its notice of motion. The court refused to permit the defendant to cross-examine plaintiff's witnesses or to introduce evidence. A verdict in plaintiff's favor was directed and returned, and judgment entered thereon. This writ followed.
The controlling question is: Did the trial court err in refusing to allow counsel for defendant to cross-examine the plaintiff's witnesses as to the amounts claimed to be due from defendant, or to introduce evidence which would in any way tend to lessen the plaintiff's recovery, on the ground that the defendant, having refused to file a counter affidavit and plead, had no such right?
The first contention of defendant's counsel is that defendant was not required to file a counter affidavit, because there had been no service of plaintiff's affidavit, as required by section 6, chapter 121, of the Code. We do not have the original papers before us, but an examination of the transcript reveals that plaintiff's affidavit was a part of the notice of motion for judgment, either attached to it or on the same paper, and on the back of the paper there was indorsed a sufficient return, showing that the within "notices" were served. It is reasonably certain that the affidavit was served by the sheriff.
Counsel for defendant further maintains that it was not necessary on the writ of inquiry that defendant should file the counter affidavit and plead before being permitted to offer evidence in reduction of plaintiff's claim. The common-law rule, to the effect that, where there has been a judgment by default, the defendant may, on the writ of inquiry, appear and offer evidence in reduction of the plaintiff's claim, is invoked. On the other hand, plaintiff's counsel maintains that the common-law rule has been changed by section 6, chapter 121, of the Code, requiring that, before defendant can plead, he must first file a counter affidavit.
We are of the opinion that, in a case arising under section 6, chapter 121, Code, where plaintiff has served and filed a proper af-fidavit, before a defendant can cross-examine witnesses and offer evidence, he must first file a counter affidavit and plead. And this is true, even where on a writ of inquiry for damages the defendant could at common law have cross-examined plaintiff's witnesses and introduced evidence for the purpose of reducing the amount claimed by the plaintiff. Section 6, chapter 12i, Code, provides:
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Mountain State Water Co. v. Town Of Kingwood, (CC 604)
...declared that the procedure it provides is in derogation of the common law and must be strictly construed. Bluefield Supply Co. v. Waugh, 106 W. Va. 67, 71, 145 S. E. 584, 585. The notice "should be so plain that the defendant cannot mistake its object, however it may be wanting in form and......
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State ex rel. Holbert v. Robinson, 10282
...and effects, in addition to its express terms. Newhart v. Pennybacker, 120 W.Va. 774, 200 S.E. 350, 200 S.E. 754; Bluefield Supply Company v. Waugh, 106 W.Va. 67, 145 S.E. 584. In the proper interpretation of a statute reference should be made to its subject matter and its purpose, and the ......
- Muncey v. Norfolk & W. Ry. Co.
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Nichols v. Island Gas Co., (No. 7637)
...upon a notice of motion for judgment denying any indebtedness to the plaintiff has a like effect. We said in Supply Co. v. Waugh, 106 W. Va. 67, 71, 145 S. E. 584, that an issue was made up by defendant's affidavit. In the instant case the recital in the order of February 28, 1933, that a p......