Cent. Land Co. Of West Va. v. Calhoun.

• Decision Date: 27 March 1880
• Citation: 16 W.Va. 361
• Parties: Central Land Company of West Virginia v. F. j. Calhoun et al.
• Court: West Virginia Supreme Court

16 W.Va. 361

Central Land Company of West Virginia

v.F. j. Calhoun et al.

Supreme Court of Appeals of West Virginia.

Decided March 27, 1880.

1. a defendant in a motion appearing and moving its continuance thereby waives all advantage which he might take of the error which had been committed by the plaintiff in failing to prove the service of the notice and to have the motion docketed on the return day.

2. A distress-warrant ought not to be quashed for the uncertainty of the description of the leased premises, where its description was:" A certain messuage and tenement situated in the city of Huntington in Cabell county, West Virginia, rented by the Central Land Company to P. J. Calhoun;" it not being necessary to describe the premises in such a case with the particularity necessary in the conveyance of the premises.

Nor should a forthcoming bond be quashed for the ve.gueness with which the property named in it is described, the description being:" All of F. J. Calhoun's household and kitchen furniture now in said tenement," referiing to that described in the warrant; there being in such case no necessity that an inventory of the property should be made.

4. Though the forthcoming bond be left at the clerk's office before it is forfeited, yet, if the property is not produced on the day of sale, the officer may have the clerk endorse it as filed in the office after the day of sale, and it will operate as a judgment, and as if actually returned to the office after the day of sale.

5. If the defendant in a motion on a forthcoming bond appears and makes defence, and the plaintiff proves the execution of the bond and its forfeiture, on a demurrer to the evidence by the defendants, judgment should be given for the plaintiff, though he failed to produce or prove the distress-warrant on which the forthcoming bond was based.

6. A court will take official notice of who is its clerk; and an endorsement by him of when a forfeited forthcoming bond was filed in his office will be regarded as evidence thereof, though he failed to add to his signature his official position as clerk of the court.

7. At common law, if a motion be made by a corporation, and the defendant pleads the general issue, or defends the case without filing any plea, the plaintiff cannot recover without proving its existence as a corporation. But if the defendant puts in a special plea, such as conditions performed, which impliedly admits the existence of the corporation, and it is tried on an issue made on such a plea, it is not necessary for the plaintiff to prove its existence as a corporation to entitle it to recover.

Writ of error to a judgment of the circuit court of Cabell county, rendered on the 15th day of December, 1876, reversing and setting aside a judgment of the county court of said county, rendered on the 5th day of February, 1875, wherein the Central Land Company of West Virginia was plaintiff, and F. J. Calhoun, Thomas H. Harvey and W. H. Harvey were defendants, allowed on the petition of the said Central Land Company of West Virginia.

Hon. Evermont Ward, judge of the ninth judicial circuit, rendered the judgment complained of.

Geeen, President, furnishes the following statement of the case:

On September 9, 1874, the superintendent of the Central Land Company of West Virginia made an affidavit before a justice of the peace of Cabell county, that F. J. Calhoun, the tenant of said company, was justly indebted to it in the sum of $166.67 for rent reserved upon contract for a certain messuage and tenement situate in the city of Huntington, in said county; and thereupon the justice issued against said Calhoun a distress-warrant for said rent in the usual form, in which the " making of this affidavit was correctly recited. This distress-warrant was endorsed by the officer serving it:" Levied on all the household and kitchen furniture now in said tenement by consent of F. J. Calhoun, he waiving an excessive levy, this September 9, 1874;" and afterwards it was further endorsed by this officer: "Bond taken for the delivery of property with Thomas Harvey and VV. H. Harvey for security, and forfeited, 29th day of September, 1874;" and this warrant was further endorsed: "Filed in my office, Jos. S. Miller, clerk," said Miller being the clerk of the county court of Cabell, as judicially known to that court. This bond so filed was in the words and figures following:

" Knotv all men by these presents, That we, F. J. Calhoun, Thos. H. Harvey and W. H. Harvey, are held and firmly bound unto the Central Land Company of West Virginia, their executors, administrators, successors and assigns, in the sum of $350, for the payment whereof we bind ourselves jointly and severally, and each of us binds his heirs, executors and administrators. Sealed with our seals and dated this 14th elay of September, 1874.

" The condition of the foregoing obligation is such, that, whereas, the above named The Central Land Company of West Virginia has sued out a distress-warrant for rent against the said F. J. Calhoun for the sum of $166.67, which writ is directed to the sheriff of Cabell county, and by virtue thereof the following goods and chattels, to wit: All the household and kitchen furniture now in said tenement, have been taken by the said sheriff to satisfy said distress-warrant, the amount whereof at this time, including sheriffs fees and commission, is $176.57, and the said F. J. Calhoun, the owner of the goods and chattels so taken, desires the said goods and chattels should be suffered to remain in his possession and at his risk until the day ot sale, and has offered to give sufficient security to the sheriff to have the same forthcoming at that time. Now, if the said F. J. Calhoun shall have the said goods and chattels forthcoming on the 29th day of September, 1874, at the front door of the court-house of said county, it being the day and place of sale appointed by the sheriff, then the above obligation to be void, otherwise to remain in full force.

"F. J. Calhoun, [Seal.] "Thos. H. Harvey, [Seal.] UW. H. Harvey. [Seal.]"

It was endorsed:" 1874, September 30th. Filed in my office.

" Teste Jos. S. Mir.LER, Clerk."

The Central Land Company of West Virginia on October 12, 1874, gave a written notice in the usual form to the obligors in this bond, that on the fifth day of the next term of the county court of Cabell county, West Virginia, it would move the said court to award execution upon said bond in its behalf for principal, interest and costs. This notice among other things recites the forfeiture of this bond on September 29, 1874. The fifth day of the next term of the county court of Cabell county was October 23, 1874. But on that day no entry was made of record that this notice was docketed. The first entry in the case was made on October 26, 1874, and was:" This day came the parties by their attorneys; and on motion of the defendants this proceeding is continued. On the 4th day of February, 1875, the defendants moved the court to quash the distress-warrant in this case, and also moved the court to quash the bond and notice given upon said bond for award of execution thereon; and the court refused to quash the distress-warrant, but continued the other motions till the next day, to which the defendants excepted; and the next day it overruled these motions, to which action of the court the defendants excepted; and thereupon they pleaded conditions performed and non damnificatus; and issues were joined on these pleas; and after the plaintiffs had introduced all their evidence, the defendants demurred to the evi-dence, and plaintiffs joined in the demurrer. The jury found a verdict for the plaintiff, and assessed its damages at $176.57, with interest thereon from September 14, 1874, till paid, subject to the opinion of the court on the demurrer to the evidence. It shows that the plaintiff gave in evidence the forthcoming bond and the endorsements thereon, as hereinbefore stated, and proved the execution of this bond by the defendants. This being all the evidence the court overruled the demurrer to the evidence, and gave judgment for the plaintiff for the penalty of the bond, to be discharged by the damages assessed by the jury.

An exception was taken to the refusal of the court to sustain said motion to quash, and also an exception to the action of the court during the trial in refusing to permit the defendants to prove that the bond and distresswarrant were returned to the clerk's office of the county court on September 28, 1874, the day before the bond was forfeited, and it was endorsed as so returned by the clerk, which was afterwards annulled, and an endorsement made by the clerk that they were filed September 30, 1874. The second exception was to the rejection by the court of a plea offered by the defendants, that when this bond was forfeited on September 29, 1874, it was not in the possession of the sheriff who levied the distress-warrant; but that he had returned the same to said clerk's office on the 28th day of September, 1874.

The defendants took the case by writ of error to the circuit court of Cabell; and on September 15, J 876, the circuit court reversed the judgment of the county court at the costs of the appellee, the said plaintiff!, and sustained the motion of the defendants to quash said forthcoming bond, and the same was ordered to be quashed.

To this judgment of the circuit court a writ of error has been allowed to this Court.

Simms & Enslow, for plaintiff in error, cited the following authorities:

Powell on App. Pro. p. 121, §12; Id. p. 181, §101; 2 W. Va. 310; 5 Blackf. (Ind.) 298; 1 Rob. Pr. (Old) 211, 349; 5Rob.Pr. (New) 671; 6 Leigh 278; 2 Tucker 297, 367; Stephens on PI. 361, 362; 8 Gratt, 539; 15 Gratt. 518; 7 Leigh 68-80; 13 S. & M. 544; 28 Miss. 283; 19 Ga. 139; 10 Ohio St. 488; 3 W. Va. 260; 3 E. D. Smith (N. Y.) 553; 29 N. Y. 485; 31 N. Y. 102; 27 How. P. P. 47; 49 Pa. St. 73; 4 W. Va. 397.

Thomas H Harvey, for defendants in error,...