Damron v. Williamson Constr., (No. 6594)

• Decision Date: 06 May 1930
• Docket Number: (No. 6594)
• Citation: 109 W.Va. 122
• Court: West Virginia Supreme Court
• Parties: Damron v. Williamson Construction & Engineering Co.

109 W.Va. 122

Damron

v.Williamson Construction & Engineering Co.

(No. 6594)

Supreme Court of Appeals of West Virginia.

Submitted April 29, 1930.

Decided May 6, 1930.

1. An appearance by a defendant in filing a general issue plea and going to trial on the merits operates as a waiver of alleged defects in and objections to the process or return of service thereon which said defendant had raised under a special appearance.

2. Where a trial court sustains exceptions to findings of fact of a commissioner in chancery, under a reference which had been made to him by the court for the purpose of stating an account between parties to a law action, and the court, sitting in lieu of a jury, enters judgment at variance with the findings of the commissioner, this court, upon writ of error, will sustain the judgment of the trial court, unless at variance with a plain preponderance of the evidence.

Error to Circuit Court, Mingo County.

Action by notice of motion for judgment by B. L. Damron, trustee of Ira Webb Construction Company, bankrupt, against the Williamson Construction & Engineering Company. Judgment for plaintiff, and defendant brings error.

Affirmed,

Holt & Holt and William B. Hogg, for plaintiff in error. James Damron, for defendant in error.

Maxwell, Judge:

On the 17th day of March, 1925, the Ira Webb Construction Company, a corporation, sold to the Williamson Construction & Engineering Company, a corporation, certain road building materials, equipment, and machinery, and assigned certain contracts, for the sum of $29,600, After certain portions of the said purchase price had been paid and discharged, the said Ira Webb Construction Company was adjudged a bankrupt and B. L. Damron, plaintiff herein, was constituted trustee of the estate of the bankrupt. Thereafter the said trustee, claiming that there was a substantial balance due from the Williamson Company to the Webb Company on the purchase money aforesaid, instituted this action, a proceeding by notice of motion for judgment, against the Williamson Company. The defendant took the position that the Webb Construction Company had failed to deliver to the purchaser all of the property which was included in the sale and purchase aforesaid, and therefore that the defendant was entitled to a rebate against the Webb Company or its trustee in bankruptcy.

The notice of motion for judgment was returnable the 15th day of November, 1926. Plaintiff's counsel did not appear in court on said date to prosecute said motion, but did appear for that purpose on the 17th day of the same month. The defendant thereupon appeared specially and moved the court to quash the said notice and the return of service thereon, which motions being overruled by the court, the defendant thereupon filed its counter affidavit and entered its plea of nil debet, and the said action was continued generally. No further proceedings were had in said action until the following November, when the Williamson Construction & Engineering Company filed in open court a bill in chancery against the said Damron, trustee, and others, alleging that the account between the Williamson Company on the one hand, and the Ira Webb Company and its trustee in bankruptcy on the other hand, were extensive and complicated, and prayed that a further prosecution of the said action at law might be enjoined and that a reference be had in the said chancery cause to a commissioner in chancery for the purpose of settling the accounts between the parties. The court declined to entertain the said bill in chancery as such and ordered the same be filed and treated as an affidavit in said action at law in support of the motion of the Williamson Company for reference to a commissioner in chancery. Thereupon the court referred the said action at law to a commissioner in chancery for the purpose of taking, stating, and reporting an account between the parties. In due time the commissioner completed and filed his report wherein he found that the Williamson Company had in fact overpaid the Webb Company in the amount of $1,619.81, but did not allow a recovery in favor of the ...