Ellis v. Gore.

• Decision Date: 30 March 1926
• Docket Number: (No. 5444)
• Citation: 101 W.Va. 273
• Parties: Edna F. Ellis v. W. P. Gore et al.
• Court: West Virginia Supreme Court

101 W.Va. 273

Edna F. Ellis

v.W. P. Gore et al.

(No. 5444)

Supreme Court of Appeals of West Virginia.

Submitted March 23, 1926.

Decided March 30, 1926.

1. Judgment Good Cause for Setting Aside Default Judgment Can Only Appear by Showing Fraud, Accident, Mistake, Surprise, or Adventitious Circumstances Beyond Control of Party, Who is Free From Neglect.

Point 1 of syllabus in Post V. Carr, 42 W. Va. 72, approved and applied. (p. 275.)

(Judgment, 34 C. J. § 515 [Anno].)

2. Justices of the Peace Where Party Summoned as Garni-shee in Suit Before Justice of Peace Appears and Files Answer and is Dismissed as Garnishee, He Cannot Shelter Himself From Consequences Arising From Appeal Duly Taken by Pleading That he Had No Notice Thereof.

Where a party has been duly summoned as a garnishee in a suit before a justice of the peace, and makes an appearance by riling an answer thereto, and is dismissed as such garnishee by the judgment of the justice, he is charged with knowledge that an appeal will lie to such judgment, and cannot shelter himself from the consequences arising from such appeal duly taken, by pleading that he had no notice of the appeal. (p. 279.)

Hatcher, Woods, Judges, absent.

(Justices of the Peace, 35 C. J. § 464.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, Logan County.

Action by Edna F. Ellis against W. P. Gore and others by notice of motion for judgment on a note, Judgment by de- fault for plaintiff, and to review an order refusing to set it aside and grant a new trial defendants bring error.

Affirmed.

Minter & McNemar and Mark T. Valentine, for plaintiffs in error.

Chafin & Estep, for defendants in error.

Lively, Judge:

Judgment by default having been entered against Morgan and Gore, plaintiffs in error, on January 12, 1925, they appeared later in the term on February 4, 1925, and moved the court to vacate the default judgment and award a new trial, supporting the motion by affidavits, and tendered a plea of non-assumpsit. From an order refusing to set aside the judgment and grant a new trial, Morgan and Gore obtained this writ.

It appears that Morgan and Gore being indebted to S. 11. Ellis, the husband of Edna F. Ellis (defendant in error), executed to him their negotiable promissory note dated April 10, 1923, payable one year from date, with interest. About the time the note became due Morgan and Gore were summoned to appear before a justice of the peace of Mingo County and answer what amount, if any, they owed S. R. Ellis, the latter having become judgment debtor to S. E. McDonald. They did not appear in person before the justice, but sent to and filed with him their written answers saying they owed S. R. Ellis $900.00, with interest from April 10, 1923. Morgan in his affidavit says he is informed that in the trial before the justice, S. R. Ellis and Edna F. Ellis, his wife, claimed that the note had been assigned to Edna F. Ellis and that thereupon the justice dismissed the proceedings in garnishment, and that he thought that the matter was at an end so far as he and Gore were concerned, until January 12, 1925 (the day the default judgment complained of was rendered), when they were informed that McDonald had appealed the garnishment proceeding to the Circuit Court of Mingo County, where judgment was rendered against them as debtors of S. R. Ellis, for $700.00 or $800.00. When or at what term of the Circuit Court of Mingo County this judgment on appeal was rendered does not appear. In the meantime the note having become due, Edna P. Ellis served notice on Morgan December 9, 1924, and on Gore December 5, 1924, that she would move for judgment on the note in the Circuit Court of Logan County on January 12, 1925. Affiant Morgan says that neither he nor Gore had notice of the appeal of the garnishment proceeding against them, and both thought that proceeding was at an end, and not being advised of the "legal status" of Edna F. Ellis, they thought she wras entitled to sue them on this note, hence they made no defense to her action against them wherein judgment was rendered for $994.50; but had they known of the pendency of the other proceedings against them in Mingo County, they would have made defense to her suit, The affiant says defendants do not owe plaintiff the amount of the note, because as a matter of law she was incapable of buying it from her husband, S. R. Ellis, and the endorsements or assignment of the note to her by her husband is void. The note in the record is endorsed by John F. Ferrell as the last endorser. The evidence upon which the default judgment was rendered is not in the record, but the judgment recites that plaintiff proceeded to prove her claim by witnesses sworn and examined in open court.

The circuit court held the affidavit to be insufficient to show "good cause" for setting aside the default judgment under Sec. 47, Chap. 125, Code, and this is the error assigned. Did the trial court err in refusing to set aside the judgment on the showing made by the affidavit? Has "good cause" been shown? This is the sole question.

Post v. Carr,.42 W. Va. 72, and Jennings v. Wiles, 82 W. Va. 577, say that in order to establish good cause under the statute, the applicant must show fraud, accident, mistake, surprise, or some adventitious circumstance beyond his control, and free from neglect on his part. Counsel for plaintiffs in error rely upon these two cases and upon Bank v. Neal, 28 W. Va. 744; Bennett v. Jackson, 34 W. Va. 62; Bank v. Johnston, 41 W. Va. 550; Mathews v. Tyree, 53 W. Va. 298; Varney et al. v. Lumber Co., 64 W. Va. 417; Willson v. Ice, 78 W. Va. 672; and Haller v. Bartlett, 92 W. Va. 511, as authority to support their assignment of error. A brief summary of the facts and holdings of these cases will not be amiss.

In Parkersburg National Bank v. Neal, 28 W. Va. 744, which involved a judgment creditor's suit to enforce the lien of certain judgments, a commissioner to whom the cause had been referred, reported that a deed executed by the judgment debtor to defendant Stewart, was void as to the judgment creditors. After a decree had been entered confirming the report, Stewart, for the first time made an appearance and asked that the decree be set aside, stating in his petition as a reason that he supposed his interests could not be affected by any decree entered in the cause, and he was so advised by counsel. During the same term the decree was set aside in so far as it applied to Stewart. This court held that the chancellor had not abused his discretion in so ruling. No negligence could be imputed to Stewart. He had employed counsel, an officer of the court, and was relying upon his advice.

In Bennett v. Jackson, 34 W. Va. 62, "An action was brought in 1875 in the County Court. Two years thereafter it was transferred to the Circuit Court. No order except continuances was made in it after such transfer. The judge of said Circuit Court could not preside at the trial, and in 1887 the plaintiff, in the absence of the defendant and his counsel, caused a special judge to be elected; and without the knowledge of the defendant the case was tried, and a verdict and judgment rendered for the plaintiff. The defendant being notified of such judgment moved the court to set the same aside because of the facts above stated; and upon his affidavit, alleging surprise and the full payment of the debt sued on, the Circuit Court set aside the judgment and awarded the defendant a new trial. Held no error."

In Bank of Princeton v. Johnston, 41 W. Va. 550, at the time the default judgment was rendered, defendant was dangerously sick, and unable to attend court. His attorney was deterred from going to the court house by reason of the prevalence of smallpox in the town wherein the court house was located. Under such circumstances it was held error to re- fuse to set aside the judgment and allow defendant to plead. Adventitious circumstances beyond defendant's control prevented his prompt defense. There was no neglect imputable to him.

In Post v. Carr, 42 W. Va. 72, it was held that good cause was not showm by defendant Carr for setting aside the default judgment, Defendant, a resident of Zanesville, Ohio, was sued in Ohio County, "West Virginia, in an action of assumpsit. After being duly served with process, he sent a letter containing a copy of the process, to his attorney at Zanesville, asking that he enter an appearance for defendant. The attorney was absent from Zanesville for about a month, and did not get defendant's letter until the day the default judgment was entered. The defendant, while spending most of his time away from his home in Zanesville, had been there on several occasions between the time he had been served with process and the date of the rendition of the judgment, but made no effort to see his attorney about the case or to enquire why he had not received a reply from his letter to the attorney. The...