Cordell v. Jarrett, 15389

Citation171 W.Va. 596,301 S.E.2d 227
Decision Date09 December 1982
Docket NumberNo. 15389,15389
PartiesAmelia CORDELL v. Rome JARRETT, Jr.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. "While a default judgment obtained in accordance with the provisions of Rule 55(b), West Virginia Rules of Civil Procedure, is a valid and enforceable judgment, a motion to set aside such judgment should be granted upon the showing of good cause therefor as prescribed in Rule 60(b) of the aforesaid rules." Syllabus Point 1, Hamilton Watch Company v. Atlas Container, Inc., 156 W.Va. 52, 190 S.E.2d 779 (1972).

2. Actual notice is not an absolute prerequisite to jurisdiction, but lack of actual notice may provide justification for setting aside a default.

3. "Where a justice of the peace [magistrate] has jurisdiction to entertain a suit in unlawful entry and detainer at the time it is instituted, the same will not be defeated because the plaintiff has sustained damages, between the time of the institution of the suit and the rendition of the final judgment therein by the circuit court upon appeal, in an amount in excess of the justice's jurisdiction." Syllabus Point 1, State ex rel. Honaker v. Black, 91 W.Va. 251, 112 S.E. 497 (1922).

Lee M. Kenna, Kenna & Forbes, Charleston, for appellee.

William W. Pepper & Andrew S. Nason, Charleston, for appellant.

HARSHBARGER, Justice:

Jarrett rented a lot for his mobile home in Ms. Cordell's trailer park. In January, 1979, she sued him in magistrate court for unlawful detainer. Her complaint sought to have Jarrett "remove trailor [sic] from my property and pay up his rent of which he owes $100.00." She asked for "$100.00 back rent, Possession of Lot, plus court costs." Magistrate Holbrook found for Cordell and awarded her $100.00 plus costs in February, 1979. Jarrett appealed to circuit court, and on April 3, he moved out of his mobile home but did not remove it from the park. He notified the United States Postal Service and magistrate court of his change of address; but not the circuit court clerk to whom his file had been sent when he appealed. On April 17, Ms. Cordell moved Jarrett's trailer.

The Kanawha County Circuit Clerk's office mailed notices to Jarrett and Cordell on January 7, 1980 that Jarrett's appeal would be heard on January 17. His notice was sent to his old trailer park address. He did not receive it, but it was not returned to the circuit clerk for failure of delivery.

Cordell appeared before a circuit judge and a hearing was set for March 13, 1980. Jarrett did not appear. She testified that four and one-half months' rent was due and she had sustained damages for removal of his trailer and lost profits. The judge entered judgment for $2,100 on March 24.

Jarrett moved to set aside the judgment because he had not received notice, 1 the court denied his motion, and he appealed to us.

Motions to set aside default judgments are governed by W.Va.Rules of Civil Procedure, Rules 55(c) and 60(b). Jarrett failed to appear because he was not aware that his appeal was being heard. This is mistake or unavoidable cause, Rule 60(b)(1), and a good reason justifying relief, 60(b)(6). It would have been better practice for Jarrett to have notified the circuit court clerk about his move instead of the magistrate clerk, or checked with the circuit clerk to see the status of his cause. Actual notice is not an absolute prerequisite to jurisdiction, but lack of actual notice may provide justification for setting aside a default. Plumley v. May, 140 W.Va. 889, 87 S.E.2d 282 (1955). Accord, Horn v. Intelectron Corp., 294 F.Supp. 1153 (S.D.N.Y.1968); Ellington v. Milne, 14 F.R.D. 241 (E.D.N.C.1953); Miller v. F.M.W. Drilling Co., 140 Cal.App.2d 728, 295 P.2d 412 (1956); Jones v. Lindsey, 114 Cal.App.2d 237, 250 P.2d 153 (1952); Hamilton v. Bogorad, Klein, Schulwolf, Masciovecchio, Inc., 275 So.2d 41 (Fla.App.1973); Dann v. Gumbiner, 29 Ill.App.2d 374, 173 N.E.2d 525 (1961); Rossten v. Wolf, 14 Ill.App.2d 322, 144 N.E.2d 757 (1957); Fitzgerald v. Brown, 168 Ind.App. 586, 344 N.E.2d 309 (1976); National Car Rental v. S & D Leasing, Inc., 89 Mich.App. 364, 280 N.W.2d 529 (1979); Miller v. Holzhauser, 19 Misc.2d 619, 192 N.Y.S.2d 981 (1959); Townsend v. Carolina Coach Co., 231 N.C. 81, 56 S.E.2d 39, 20 A.L.R.2d 1174 (1949). A party should not be deprived of his opportunity to be heard on the merits when he failed to appear for lack of notice. Toler v. Shelton, 157 W.Va. 778, 204 S.E.2d 85 (1974); State ex rel. Battle v. Demkovitch, 148 W.Va. 618, 136 S.E.2d 895 (1964). He had not resided at the trailer park for eight months when the notice setting a hearing date was mailed to him there. 2 He filed an affidavit that he never received notice. Accord, Jones v. Lindsey, supra; Hamilton v. Bogorad, Klein, Schulwolf, Masciovecchio, Inc., supra; Parker v. Dingman, 122 Cal.Rptr. 309, 48 Cal.App.3d 1011 (1975). We have consistently encouraged hearings on the merits and liberal construction of W.Va.Rules of Civil Procedure, 55(b), 55(c), and 60(b).

1. While a default judgment obtained in accordance with the provisions of Rule 55(b), West Virginia Rules of Civil Procedure, is a valid and enforceable judgment, a motion to set aside such judgment should be granted upon the showing of good cause therefor as prescribed in Rule 60(b) of the aforesaid rules.

2. Inasmuch as courts favor the adjudication of cases on their merits, Rule 60(b) of the West Virginia Rules of Civil Procedure should be given a liberal construction. Syllabus Points 1 and 2, Hamilton Watch Company v. Atlas Container, Inc., 156 W.Va. 52, 190 S.E.2d 779 (1972).

Syllabus Points 1 and 2, Hamilton Watch Company v. Atlas Container, Inc., 156 W.Va. 52, 190 S.E.2d 779 (1972).

See Syllabus Point 2, Parsons v. Consolidated Gas Supply Corp., 163 W.Va. 464, 256 S.E.2d 758 (1979); Syllabus Point 2, McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 (1972).

Parsons, supra at Syllabus Point 3, instructs a trial court to consider whether there will be prejudice to a nondefaulting party, caused by delay; whether there are material issues including meritorious defenses; the significance of interests at stake; and the degree of intransigence of the defaulting party. Ms. Cordell will not be prejudiced by setting aside the default because she has possession of her lot, and damages are not continuing to accrue. Jarrett asserted that he has a meritorious defense, and he stands to lose over $2,000 and timely filed his motion to set aside the default. Any doubt about whether to set aside a default judgment against a party who claims to have a meritorious defense and who sought relief in a timely fashion, should be resolved by setting aside the judgment. Parsons, supra 190 S.E.2d, at 11-12. Accord, Horn v. Interlectron Corp., supra; Union Oil Co. of California v. Hudson Oil Co., Inc., 131 Ariz. 285, 640 P.2d 847 (1982); Miller v. F.M.W. Drilling Co., supra; Hamilton v. Bogorad, Klein, Schulwolf, Masciovecchio, Inc., supra; Dann v. Gumbiner, supra; Fitzgerald v. Brown, supra; National Car Rental v. S & D Leasing, Inc., supra; Miller v. Holzhauser, supra; Commonwealth, Department of Transportation v. Nemeth, 497 Pa. 580, 442 A.2d 689 (1982); Maier Construction, Inc. v. Ryan, 81 Wis.2d 463, 260 N.W.2d 700 (1978). See 10 Wright and Miller, Federal Practice and Procedure, Civil § 2695 and cases in footnote 24 (1969 and Supp.); 6 Moore's Federal Practice, §§ 55.09, 55.10- (2d Ed.1972); 3 Barron and Holtzoff, Federal Practice and Procedure, Rules Edition, Civil § 1217 (1972). See generally Note, Service of Process by Mail, 74 Mich.L.Rev. 381 (1975-76).

Jarrett also argued that Cordell should not be permitted to claim more damages than she did in magistrate court. 3

An appeal from magistrate court is a trial de novo in circuit court. W.Va.Code, 50-5-12. State ex rel. Browning v. Oakley, 157 W.Va. 136, 199 S.E.2d 752 (1973); Cook v. Continental Casualty Co., 82 W.Va. 250, 95 S.E. 835 (1918); Bratt v. Marum, 24 W.Va. 652 (1884). W.Va.Rules of Civil Procedure, Rule 81(a)(1), provides that in trials de novo resulting from appeals from magistrates, "no pleadings other than those used in the case in the ... [magistrate] court may be used except by order of the appellate court in the proceeding after the appeal has been granted or perfected." It also recognizes that all rules of civil procedure, other than Rules 26 through 37, apply. This means that once an appeal has been granted, but not prior thereto, a party may move to amend pleadings, Rule 15, 4 Syllabus Point 5, Pribble v. Stanley, 74 W.Va. 75, 81 S.E. 577, 578 (1914), and that a party is entitled to a judgment for any relief to which he or she is entitled, even if a lesser amount was demanded in the pleadings. Rule 55(c).

In such action of unlawful detainer begun before a justice and appealed by the defendant to the circuit court, the circuit court, on the verdict finding for plaintiff damages for rent accrued to plaintiff may in addition to pronouncing judgment for possession, and pursuant to sections 172 and 218, chapter 50, Code 1913, give judgment also in favor of plaintiff, and against defendant and those who signed his appeal bond as sureties, for the amount of such damages, though in excess of the amount of damages claimed in the summons of the justice.

Syllabus Point 5, Pribble v. Stanley, supra.

Accord, Saia v. Lusco, 155 La. 191, 99 So. 34 (1924); Zitzer v. Jones, 48 Md. 115 (1878); Archer v. High, 193 Miss. 361, 9 So.2d 647, 648 (1942); Norvell v. Schupbach, Mo.App., 185 S.W.2d 323 (1945); Finch v. Gregg, 126 N.C. 176, 35 S.E. 251 (1900), overruled on other ground, Mason v. Nelson, 148 N.C. 492, 62 S.E. 625 (1908); Horton v. Early, 39 Okl. 99, 134 P. 436, 437 (1913); Meredith v. Bell, 7 S.W.2d 605 (Tex.Civ.App.1928). See 51 C.J.S. Justices of the Peace § 194. Amendments for additional causes of action may not be allowed on appeal from magistrate court. Accord, Gaster v....

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