Bringardner v. Rollins
| Decision Date | 16 November 1926 |
| Docket Number | 5654. |
| Citation | 135 S.E. 665,102 W.Va. 584 |
| Parties | BRINGARDNER et al. v. ROLLINS et al. |
| Court | West Virginia Supreme Court |
Submitted November 9, 1926.
Syllabus by the Court.
A judgment or decree must be restricted to the case made by the pleadings, no matter what the evidence may show.
Additional Syllabus by Editorial Staff.
"Indorsers in course" are generally liable in order of their indorsement.
Generally "joint indorsers" are, as among themselves, liable to equal contribution.
Error to Circuit Court, Kanawha County.
Proceeding by Fred Bringardner and another by notice of motion for judgment against W. Z. Rollins and another. Default judgment against the named defendant. Motion of named defendant to set aside default judgment overruled, and he brings error. Reversed and remanded.
George D. Moore, of Charleston, for plaintiff in error.
Price Smith & Spilman, of Charleston, for defendants in error.
The plaintiffs Fred Bringardner and Myron G. Campbell instituted this proceeding by notice of motion, notifying the defendants W. Z. Rollins and H. D. Moyer that plaintiffs would on a day named move the circuit court for judgment against them and each of them for the sum of $2,500.00 with interest and costs, on a certain note made by the Coal State Electric Company, for the sum of $5,000.00, payable to the order of the Charleston National Bank, at said bank, and indorsed in blank on the back thereof by Fred Bringardner, Myron C. Campbell, W. Z. Rollins, and H. D. Moyer, which note, when due and payable, was presented for payment and payment refused, and protested for non-payment, and was subsequently paid by plaintiffs to the said Charleston National Bank.
On the return day of the notice, the plaintiffs appeared in court by counsel and moved the court for judgment against the defendants in the sum of $2,581.41, with interest thereon until paid. The defendant Rollins not appearing, and the plaintiffs not requiring a jury, "the court proceeded to hear the evidence and ascertain the amount, if anything, that the plaintiffs were entitled to recover against the defendant W. Z. Rollins on the demand stated in said notice," and found that they were entitled to recover from him the sum of $2,581.41, and entered judgment against him for said amount, with interest and costs. Thereupon the defendant Moyer appeared by counsel; and on his motion the case as to him was continued and set for trial at a later date.
On a later day of the same term, the defendant Rollins first appeared by counsel and moved the court to set aside and vacate the default judgment against him, for the reasons...
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