Cox v. Hagan

• Decision Date: 17 September 1919
• Citation: 100 S.E. 666
• Parties: COX et al. v. HAGAN.
• Court: Virginia Supreme Court

100 S.E. 666

COX et al.

v.HAGAN.

Supreme Court of Appeals of Virginia.

Sept 17, 1919.

[COPYRIGHT MATERIAL OMITTED]

[Ed. Note.—For other definitions, see Words and Phrases, Costs of Collection.]

Error to Circuit Court, Scott County.

Action by C. F. Hagan against R. W. Cox and others. Judgment for plaintiff, and defendants bring error. Reversed and remanded.

This action at law was instituted in the court below by the defendant in error, Hagan (hereinafter referred to as plaintiff, or as plaintiff in the court below), by the following notice of motion for judgment:

"To R. W. Cox, L. F. Cox, Mrs. R. W. Cox, Mary Cox, G. B. Bickley and R. E. Bickley:

"You and each of you are hereby notified that on the 1st day of the next term of the circuit court for Scott county (being the September term, 1917), I will move the circuit court for Scott county for a judgment against you and each of you for the sum of $2,750.00 with interest thereon from the 28th day of June, 1917, until paid, the same being due by you to me on account of a certain note executed by all of you as makers, payable to Head & Sloan, bearing date December 28th, 1910, and due six months after date for the sum of $2,500.00 which said note was indorsed by me and which note not having been paid at maturity by either of you as you had agreed demand was made upon me for payment thereof and payment thereof was accordingly made by me on the 29th day of June, 1917, by the terms of which note it is provided that all homestead exemptions are waived and in which you and each of you agreed to pay 10 per cent. attorney's fees for collection in case payment thereof should not be made at maturity, and by reasons of said note and the provisions thereof, and the nonpayment thereof by you and the payment thereof by me to the holder thereof, and by reason of said note having been placed in the hands of attorneys for collection and action hath accrued to me to have and demand of you the said sum of $2,750.00 above mentioned, which said note is in the following words and figures, to wit:

" 'Gate City, Va., Dec. 28, 1916. " '$2,500.00. Due June 28th, 1917.

" '6 months after date we, or either of the makers or indorsers, value received, promise to pay to the order of Head & Sloan twenty-five hundred dollars.

" 'Negotiable and payable at the People's National Bank of Gate City, Virginia, with six per cent. interest after maturity.

" 'The makers and indorsers of this note hereby waive presentment, protest and notice of dishonor, and consent that the time of payment may be extended without notice thereof and hereby waive the benefit of their homestead exemptions as to this obligation; and further agree to pay costs of collection, or ten per cent attorney's fee in case payment shall not be made at maturity. R. W. Cox.

" 'L. F. Cox. '"Mrs. R. W. Cox. " 'Mary Cox. " 'G. B. Bickley. " 'R. E. Bickley.'

"Which said note was indorsed as follows:

'"C. F. Hagan, " 'Head & Sloan, " 'By D. C. Sloan, ' "Respectfully, Charles F. Hagan. "By Robert L-. Pennington, Attorney."

On the calling of said notice of motion for judgment the defendants, L. F. Cox and Mary Cox, offered two special pleas, designated as plea No. 1 and plea No. 2, which are as follows:

Plea No. 1.

"This day came the defendants L, F. Cox and Mary Cox, by counsel, and say that the plaintiff ought not further to have and to maintain his action against them at this time because the said note, and the sum demanded in the notice, is the note and the amount due and owing by the Sulphur Springs Lumber Company, a partnership composed of R. W. Cox and G. B. Bickley, and said money was put and placed into the business of the said Sulphur Springs Lumber Company and was used therein, and these defendants further say that the said-firm of the Sulphur Springs Lumber Company and the members of said firm, viz.: R. W. Cox and G. B. Bickley, have been duly adjudged bankrupts, by the District Court for the Western District of Virginia, and the said proceeding is now pending in said court. These defendants further say that the said note was filed as a part of the indebtedness of said partnership and the members thereof. These defendants are only sureties on said notes, and the plaintiff recognized the truth of this plea by filing the said note, or proof thereof with the Referee in Bankruptcy, to whom the aforesaid bankruptcy proceeding was referred.

"The foregoing plea was sworn to before me, September 5th, 1917. D. C."

Plea No. 2.

"This day came the defendants L. F. Cox and Mary Cox, by counsel, and say that the plaintiff ought not to have and to maintain his action for the ten per centum attorney demanded in said notice because the said sum demanded is unreasonable, unjust, inequitable, unfair and oppressive. And this defendants are ready to verify."

The plaintiff thereupon objected to the filing of such pleas, and the court sustained the objection, to which action of the court the two defendants, who are the plaintiffs in error, excepted. The record does not disclose whether any specific grounds of objection to the pleas were assigned before the court below, or whether such specification was asked for there by the plaintiffs in error.

Upon such objection to the pleas being sustained as aforesaid, the plaintiffs in error did not plead the general issue or interpose a de-murrer or any other plea in defense of the action or attempt to do so, at that time or during that term of the court.

The other defendants interposed no defense whatever to the action, and the following entry was made by the clerk on the court docket:

"C. F. Hagan v. L. F. Cox et al. Notice of Motion.

"Judgment against Mrs. R. W. Cox and R. E. Bickley (see papers).

"(Order entered at September term, 1917.)"

And on a subsequent day of the same term of court, to wit, on Thursday, September 13, 1917, judgment was entered in favor of the plaintiff against the defendants, Mrs. R. W. Cox and R. E. Bickley, "for the sum of twenty-five hundred dollars ($2,500.00), with interest from the 28th day of June, 1917, until paid and the costs of this suit, together with ten (10) per cent. attorney's fee thereon."

No other order was entered and no other memorandum was made concerning the case by the clerk or judge at that term of the court.

At the January term, 1918, of the court, the plaintiff moved the court to enter a nunc pro tune order, giving judgment in his favor against the defendants who are the plaintiffs in error.

The record does not disclose on what ground such motion was made.

When the plaintiff by counsel asked the court at its January term for such nunc pro tunc order, the plaintiffs in error offered and asked the court before such order was entered to be allowed to file two additional pleas, designated plea No. 3 and plea No. 4, which are as follows:

Plea No. 3.

"The defendants L. F. Cox and Mary Cox come, and say that the plaintiff ought not to have and to maintain his action for the ten per centum attorney's fee in the notice of motion for judgment demanded, because the said notice shows that said C. F. Hagan is an indorser of the note sued on, and does not show that he paid nor that he was legally bound to pay said attorney's fee. And of this they put themselves upon the country and this they are ready to verify."

Plea No. 4.

"The defendants come and say that the said C. F. Hagan ought not to have and to maintain his action for the sum in the notice demanded, because the said note was executed by R. W. Cox and G. B. Bickley and these defendants were only indorsers on the note as was the plaintiff. The note was executed for the benefit of the Sulphur Springs Lumber Co., composed of R. W. Cox and G. B. Bickley, and the money procured went into the business of said company. The plaintiff knew at the time that these defendants were only indorsers and jointly liable with him. The plaintiff is only entitled to recover the pro rata amount due by these de fendants as indorsers, because each indorser assumes the same liability as every other. And. this they are ready to verify."

The plaintiff thereupon objected to the filing of such pleas, and the court sustained the objection.

The record is the same in its lack of disclosure, with respect to whether any specific grounds of objection were assigned before the court below to these pleas or were called for there by the plaintiffs in error, as is noted above with regard to the pleas Nos. 1 and 2 aforesaid. The record is also the same upon the point that, upon the objection to pleas Nos. 3 and 4 being sustained, the plaintiffs in error interposed no further defense to the action. And, so far as the record discloses, there was not at any time a trial of the case as if upon any issue joined.

The court thereupon at the January term, 1918, on said motion of the plaintiff, entered the nunc pro tunc order under review as an order which "should have been entered at the September term, 1917, " which order rendered judgment in favor of the plaintiff against the plaintiffs in error for the sum of $2,750 "with interest from the 28th day of June, 1917, until paid, and the costs of this action, the amount claimed in the plaintiff's notice of motion."

W. S. Cox, of Gate City, for plaintiffs in error.

R. L. Pennington, of Bristol, for defendant in error.

SIMS, J. (after stating the facts as above). The material questions raised by the assignments of error will be disposed of in their order as stated below.

1. Was there error in the action of the court below in sustaining the general objection of the plaintiff to special plea No. 1 set forth in the statement preceding this opinion?

The question must be answered in the negative.

The plea is, in substance, that, although the signatures of the plaintiffs in error appear on the note in said suit as comakers, they were not in fact principal obligors but sureties only for certain comakers of the note; the latter being in truth the principal obligors. The plea, however, does not allege that the plaintiff...