Citizens' Trust & Guaranty Co. of West Virginia v. Young
| Citation | 83 S.E. 1007,75 W.Va. 241 |
| Decision Date | 08 December 1914 |
| Docket Number | 2455. |
| Parties | CITIZENS' TRUST & GUARANTY CO. OF WEST VIRGINIA v. YOUNG. |
| Court | Supreme Court of West Virginia |
Submitted October 28, 1914.
Rehearing Denied Jan. 12, 1915.
Syllabus by the Court.
The personal representative of one who was bound jointly with another by a contract may be charged and proceeded against in respect of such contract, as if those bound with the decedent had been bound severally as well as jointly.
A declaration against a personal representative, on a joint or joint and several demand against the deceased person and another, may set forth the demand as if it had been a cause of action against the deceased person alone, taking no notice of the others; and the evidence of such joint, or joint and several, demand is admissible under it.
An office judgment actually entered up in court, or a judgment entered after an inquiry of damages executed, cannot be set aside at the term at which it was entered, except upon the tender of a plea and counter affidavit, denying liability in whole or in part. A mere motion to set aside for error apparent and other causes to be later assigned does not keep the judgment open until the next term for such plea and affidavit.
Error to Circuit Court, Tyler County.
Action by the Citizens' Trust & Guaranty Company of West Virginia against Belle V. Young, administratrix. Judgment for plaintiff was set aside, and plaintiff brings error. Reversed, and judgment reinstated.
William Beard, of Parkersburg, and O. C Carter, of Middlebourne, for plaintiff in error.
M. H Willis, of New Martinsville, and O. B. Conaway and Geo. L Rose, both of Middlebourne, for defendant in error.
This writ of error is to an order setting aside a judgment upon a default and writ of inquiry duly executed. The action was in assumpsit upon an account and the inquiry of damages was executed and judgment rendered on the 7th day of November, 1912. Later in the same term, November 15, 1912, the defendant appeared and moved to set aside the judgment for error apparent and other causes to be subsequently shown, and the court continued the motion, in view of the absence of the plaintiff. At the next term, held in February, 1913, surprise was relied upon as a further ground, and affidavits were filed to sustain it. But the court based its action in the setting aside of the judgment upon nonjoinder of parties.
The declaration charges only individual indebtedness of the intestate and his promise, in consideration thereof, to pay while the bill of particulars sets forth an account for money paid, laid out, and expended for the use and benefit of him and a third party. If the demand was joint and several, there was no variance. 2 Chitty, Pl. (12th Ed.) p. 115, note, and 163, note. But if it was joint, as the court regarded it, the administratrix could not, under common-law principles, be sued at law on account thereof at all. 1 Chitty, Pl. (12th Ed.) p. 50. As to whether it constituted a joint obligation while the parties were living, no inquiry is necessary, however, for the statute makes it several for remedial purposes. Code, c. 99, § 13 ...
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