Citizens Nat'l Bank v. Dixon

• Decision Date: 15 May 1923
• Docket Number: No. 4753.,4753.
• Citation: 94 W.Va. 21
• Court: West Virginia Supreme Court
• Parties: Citizens National Bank v. Annie Dixon, et al.

94 W.Va. 21

Citizens National Bank

v.Annie Dixon, et al.

No. 4753

Supreme Court of Appeals of West Virginia.

Submitted May 8, 1923.

Decided May 15, 1923.

1. Judgment Procedure to Obtain Judgment for Money Due on Contract by Motion Stated.

Any person entitled to recover money by action on contract may obtain judgment by motion in a court having jurisdiction, after having given his debtor notice in writing of such motion for at least twenty days of the time and court in which the motion will be made, which notice shall be returned to the clerk's office of such court at least fifteen days before the time such motion is heard. "(p. 24).

2. Same Notice in Procedure to Recover Money Due on Contract by Motion Must be Filed Before Term, sv as to Enable Clerk to Docket Cause.

Such notice with the return of service thereon may be filed in the clerk's office at any time before the commencement of the term at which the motion is to be heard sufficient to enable the clerk to docket the same for trial. (P 24).

3. Same Motion to Recover Money Due on Contract After Return of Notice May be Heard at Designated Day of Term,

Notwithstanding Trial Calendar Docket.

A person entitled to recover money on contract, wno nas given such notice of motion and returned and filed the same in the clerk's office in compliance with the statute, is entitled to have his motion heard and determined on the designated day of the term, or as soon thereafter as may be, notwithstanding a rule of the court which prescribes that five days prior to each regular term the clerk shall make up a "trial calendar docket" upon which all cases to be tried at that term shall be placed, and providing further that any party desiring his case tried shall at least fifteen days before the term give the clerk notice thereof, and only such cases shall be placed on the "trial calendar;" and that all other cases shall stand continued. (p. 24).

4. Courts Power to Prescribe and Enforce its Rules Includes

Power to Interpret and Apply Them.

The power of courts to prescribe and enforce rules, not unreasonable, oppressive or obstructive of rights, for the orderly and expeditious conduct of the court's business, includes the power to interpret and apply them. (p. 24).

5. Judgment Essentials of Affidavit Filed With Notice of Mo-

tion to Recover Money Due on Contract Stated.

The affidavit filed with a notice of motion as prescribed in sec. 6, chap. 121, Code, need not set out the causes of action stated in the notice; such affidavit is sufficient if it states that there is, as affiant verily believes, due and unpaid from defendant to plaintiff upon the demand or demands stated in the notice, including principal and interest, after deducting all payments, credits and set off made by the defendant, or to which he is entitled. a sum certain, naming it. (d. 24).

6. Same Notice of Motion for Judgment for Money Due Must Set Out Good Cause of Action; Default Judgment on Motion for Judgment for Money Due. Where Notice Does not Set Out Good Cause of Action, Set Aside After Term. A notice of motion for judgment must set out a good cause of action with reasonable certainty. If it does not, and a default judgment is rendered thereon, such judgment should be set aside for that reason, after adjournment of the term of court, under the provisions of sec. 5, chap. 134, Code, as an error appearing upon the record. (p. 24).

Error to Circuit Court, Kanawha County.

Action by the Citizesns' National Bank against Annie Dixon and others. Judgment for plaintiff, and defendants bring error.

Reversed and remanded.

Charles L. Ice, for plaintiffs in error.

Mathews, Campbell & McClintic, for defendant in error.

Lively, Judge:

This writ of error is to the judgment of the circuit court of Kanawha county entered on the 16th of September, 1922, which denied a writ of error to a judgment of the court of common pleas rendered on the 31st of May, 1922, overruling a motion by appellants to vacate and annul a default judgment rendered against them in the court of common pleas on the 11th day of February, 1922, for $373.64.

Plaintiff below served notice with affidavit attached on defendants on January 12, 1922, that it would move for judgment against them in the court of common pleas on February 4th following on a certain promissory note. This notice, with affidavit attached thereto and with the return of the sheriff thereon, was filed in the clerk's office on the 14th day of January, 1922. The following term of the court began on the 19th day of that month. On the 4th day of February, the date at which the motion was to be made, it was docketed by order and on motion of plaintiff continued until the 11th day of that month, when defendants, being called, came not, and the case was submitted to the court in lieu of a jury, which found there was due plaintiff on the demand stated in the notice and affidavit the sum of $373.64; and judgment was rendered accordingly. On the 31st of May, 1922, at the following term of court, defendants, after due notice, moved the court to set aside and vacate the default judgment entered on the 11th of February, on the grounds (1) that the case was improperly and illegally on the trial docket of the court by reason of a rule of the court promulgated and in effect at that time; and (2) because the affidavit attached to the notice of motion for judgment was insufficient.

The rule of the court relied upon in support of the motion requires that the clerk, before each regular term, shall make up what is termed a "trial calendar docket" upon which shall be placed all cases which are expected to be tried at the term; and that the parties or their counsel desiring a case to be tried shall give notice thereof to the clerk, not less than fifteen days before the term; and that only cases in which such notice is given shall be placed upon the trial calendar, and all other cases shall stand continued. The rule also provides that it shall not interfere with the right of the court to modify the same in regard to cases having a preference under the law, or to comply with any requirement of the law in regard to the trial and disposition of cases, or where for good cause shown it appears to the court that an emergency exists for which a case should be taken out of the requirements of the rule. Did the court err in refusing to vacate the default judgment because of this rule? Under sec. 6 of chap. 121, any person who is entitled to a judgment for money arising out of contract, may obtain such judgment by notice of motion in the proper court, which notice must be served on the defendant at least twenty days before the time at which it will be made and which notice shall be returned to the clerk's office at least fifteen days before the time it is to be heard. It will be observed that this notice may be filed at any time before the beginning of the term at which the motion is to be made. It should be filed in the clerk's office before the term in order that it may be placed on the docket made up by the clerk for the term and set for trial in accordance with sec. 1 of chap. 131 of the Code. Knox v. Hor- ner, 58 W. Va. 136; 51 S. E. 979. If the rule referred to be applied to notices of motion for judgment it would require the plaintiff to give notice to the clerk fifteen days before the term that he desired a trial on his notice of motion, which possibly at that time was not in existence. It would prevent the fruition of a substantial right given to a litigant by this summary and convenient method of obtaining judgment. All that is required of him is that he serve his notice on the debtor at least twenty days before the time set for making the motion and that it be returned to the clerk's office at least fifteen days before the time the motion is to be made. Should a litigant desire to obtain judgment by notice of motion after fifteen days before the beginning of the next term of court this rule of court, if enforced, would prevent him from taking that procedure, because he would not have time to notify the clerk fifteen days before the beginning of the term that he desired to try his case. His note or demand might not become due until after fifteen days before the term. Should he be precluded from judgment because of this rule? We do not think this rule would be applicable to a notice of motion served and filed in the clerk's office in accordance with the statute, less than fifteen days prior to the beginning of the term. The rule among other things is for the expeditious conduct of business and that the clerk might be advised of those cases which were expected to be tried, so that he could place them upon the trial calendar and under the direction of the court set them,...