Charleston Nat'l Bank v. Hulme

• Decision Date: 27 October 1936
• Docket Number: (No. 8399)
• Citation: 117 W.Va. 790
• Court: West Virginia Supreme Court
• Parties: Charleston National Bank, Admr., v. B. S. Hulme

117 W.Va. 790

Charleston National Bank, Admr.,

v.B. S. Hulme

(No. 8399)

Supreme Court of Appeals of West Virginia.

Submitted September 30, 1936.

Decided October 27, 1936.

1. Pleading

Under Code, 56-4-36, demurrers in civil cases are required to be in writing, specifying the grounds of demurrer relied upon, and it is not error to overrule a demurrer not complying with the provisions of that section in these respects.

2. Judgment

An order in an action at law which dismisses a defendant without prejudice to the plaintiff to bring a subsequent action upon the same cause of action against the same defendant, will not sustain a plea of res adjudicata as to the same defendant in a subsequent action on the same cause of action.

3. Judgment

The matters arising upon a plea of res adjudicata are questions of law for the court, and it is error to submit the issue under such a plea to the jury.

4. Witnesses

A witness competent at common law to testify is not rendered incompetent by the provisions of Code, 57-3-1.

5. Witnesses

In order to render a witness incompetent at common law to testify on account of interest in the event or outcome of the suit or action, the disqualifying interest must be such that the proceedings in the case in which the witness is called to testify can be used in his favor in a subsequent proceeding.

Error to Circuit Court, Summers County.

Action by the Charleston National Bank, as administrator de bonis non of the estate of William Plumley, Jr., deceased, against B. S. Hulme. Verdict and judgment for defendant, and plaintiff brings error.

Reversed and remanded.

Herbert L. Carney, Thomas N. Read, and T. L. Read, for plaintiff in error.

P. J. Carr, Wm. H. Sawyers, and W. A. Brown, for defendant in error.

Kenna, Judge:

Charleston National Bank as administrator d.b.n. of the estate of William Plumley, Jr., deceased, brought this action in assumpsit in the Circuit Court of Summers County against B. S. Hulme, seeking recovery upon a negotiable promissory note dated the 13th day of February, 1924, in the sum of $1875.00, due in twelve months and payable to the order of R. F. Dunlap and Seldon Plumley, trustees, executed by 0. L. Stanard, and indorsed by B. S. Hulme. R. F. Dunlap and Seldon Plumley, both now deceased, had been named as executors and trustees in the will of William Plumley, Jr., and upon the death of the survivor of them, the Charleston National Bank had qualified as administrator d.b.n., of the estate of William Plumley, Jr. The defendant Hulme filed a plea of res ad judicata, a plea of payment and the general issue. There was a verdict and judgment for the defendant, and the plaintiff prosecutes this writ of error, seeking reversal, first, because of alleged error in the trial court permitting the issue of the defendant's plea of res adjudieata to go to the jury; and second, for not striking out the defendant's proof of payment because (a) it rested upon the testimony of O. L. Stanard, claimed by the plaintiff to have been disqualified under the statute to testify as to personal transactions between him and the two deceased executors and trustees; and (b) because of its insufficiency.

An order entered on July 19, 1935, shows that the plaintiff orally demurred to and moved to strike out the defendant's plea of res adjudieata. This is not the proper mode of testing the sufficiency of a pleading, since under Code, 56-4-36, objections to the filing of a pleading for insufficiency are abolished and it is provided that all demurrers in civil cases shall be in writing, specifically stating the grounds of demurrer relied on. Therefore, the questions which arise under this plea must be determined upon the proof tendered to sustain it raised by the motion to strike the defendant's evidence. The evidence shows a former action brought upon the note sued on in this action by R. F. Dunlap, surviving executor and trustee, against O. L. Stanard and B. S. Hulme. In that former action, there was a judgment against Stanard and a counter-affidavit filed by Hulme. After the death of Dunlap, surviving trustee and executor, an order was entered in this former action reciting that fact and the qualification of the Charleston National Bank as administrator d.b.n. of the estate of William Plumley, Jr., and reviving the action in the name of the Charleston National Bank as such administrator. The order then recites the motion of the Charleston National Bank to dismiss the action as to B. S. Hulme, without prejudice. The order shows no objection. The order then proceeds to sustain the motion, distinctly stating that the suit is dismissed without prejudice to the right of the Charleston National Bank as administrator d.b.n. of the estate of William Plumley, Jr., to further proceed upon the matters and. demands set up in that action between the plaintiff and B. S. Hulme, and that none of such matters are adjudicated. This is plainly a dismissal without prejudice, and as such does not operate as res adjudicata as to the person so dismissed. Staley V. Big Sandy, etc., Railroad Co., 63 W. Va. 119, 59 S. E. 946.

The plea of res adjudicata presents a question of law for decision by the court, and is not an appropriate question to be submitted to the jury. Davis v. Trump, 43 W. Va. 191, 27 S. E. 397, 64 Am. St. Rep. 849; Brown V. Cook, 77 W. Va. 356, 87 S. E. 454, L. R. A. 1916D, 220. Here, an issue to the jury was made up on the plea, and this was plainly erroneous. The evidence introduced to sustain the plea was insufficient as a matter of law, and therefore, upon the plaintiff's objecting to its introduction, it should have been excluded. The effect of this error will be discussed later in this opinion.

Upon the plea of payment, the defendant relied principally upon the testimony of O. L. Stanard, maker of the note sued upon, against whom a judgment had formerly been rendered, but who was not a party defendant to this action. It is contended by the plaintiff in error, (1) that Stanard was incompetent to testify by virtue of his interest in the outcome of the suit because, it is contended, he falls within an exception contained in Code, 57-3-1, which abolishes, subject to the exceptions therein named, the common law disqualification of a witness on account of interest; (2) that the testimony of Stanard is insufficient to sustain the defendant's plea of payment, the only substantial defense tendered at the trial.

Code, 57-3-1, creates no new incompetence in witnesses. It simply abolishes the incompetence existing at common law on account of interest in the event of the suit or action, the exceptions contained in the statute leaving the matter of incompetence where it was at common law in the cases excepted. Crothers Admrs. V. Crothers, 40 W. Va. 169, 174, 20 S. E. 927, 928. The first inquiry, then, is: would the witness Stanard be disqualified at common law? If he would be competent at common law,...