Empire Coal & Coke Co v. Hull Coal & Coke Co

• Decision Date: 07 June 1902
• Citation: 41 S.E. 917,51 W.Va. 474
• Court: West Virginia Supreme Court
• Parties: EMPIRE COAL & COKE CO. v. HULL COAL & COKE CO.

41 S.E. 917

51 W.Va. 474

EMPIRE COAL & COKE CO.

v.HULL COAL & COKE CO.

Supreme Court of Appeals of West Virginia.

June 7, 1902.

COURTS—JURISDICTION—PRESUMPTION — PLEA IN ABATEMENT — FOREIGN CORPORATIONS — APPEAL—CONTRACT-ABANDONMENT-RIGHTS OF PARTIES.

1. It is not necessary, to give jurisdiction, that the declaration contain an averment of the facts authorizing the plaintiff to sue in the county where the action may be brought. Jurisdiction will be presumed unless questioned by plea in abatement interposed in proper time.

2. Where circuit courts, being courts or general jurisdiction, take cognizance of causes, every intendment is in favor of their jurisdiction and their right to exercise it.

3. Point 2, Syl., Hinton v. Ballard, 3 W. Va. 582, and point 1, Syl., Humphreys v. Newport News & M. V. Co., 10 S. E. 39, 33 W. Va. 135, reaffirmed.

4. Although the appellate court of this state will supervise the action of an inferior court on a motion for a continuance, it will not reverse a judgment or decree on that ground unless such action was plainly erroneous.

5. Point 1, Syl., Railroad Co. v. Lafferty, 2 W. Va. 104, approved.

(Syllabus by the Court.)

Error to circuit court, Mercer county; J. M. Sanders, Judge.

Action by the Empire Coal & Coke Company against the Hull Coal & Coke Company. Judgment for plaintiff. Defendant brings error. Affirmed.

A. W. Reynolds, for plaintiff in error.

Rucker & Anderson, for defendant in error.

McWHORTER, J. The Empire Coal & Coke Company, a corporation organized and doing business under the laws of the state of West Virginia, brought its action of assumpsit in the circuit court of Mercer county against the Hull Coal & Coke Company, a corporation organized under the laws of the state of Kentucky, and doing business In said county of Mercer. The declaration filed by the plaintiff company contained the common counts, including a count for the sum of $2,650.49 for money found to be due from the defendant to the plaintiff on an account then and there stated between them. Plaintiff filed with its declaration an account of coke shipped by it on the order of defendant, showing a balance due January 20, 1900, of $2,650.49, and gave notice that upon the trial of same cause it would offer proof of said account. Common order was confirmed and writ of inquiry entered at the April rules, 1900. On the 16th of May, 1900, the parties appeared by their attorneys, when H. D. Lafferty, vice president of the defendant company, tendered and asked leave to file a plea in abatement, and also tendered in connection with said plea in abatement the affidavit of W. H. H. Dorney; said affidavit being annexed to a plea of non assumpsit, but which plea of non assumpsit was not tendered for the purpose of being filed as a plea in the action, but to be allowed to remain, in addition to the affidavit, only for the purpose of identifying the case referred in the affidavit; to the filing of which affidavit plaintiff's counsel objected, not because it was attached to the plea of non assumpsit, but upon the ground that it was insufficient to entitle the defendant to have the office judgment set aside; and plaintiff also objected to the filing of the said plea in abatement The court overruled plaintiff's objection to the affidavit, and permitted it to be filed, but sustained the objection to the filing of the plea in abatement, and refused to permit the same to be filed, to which ruling defendant excepted, and asked that the plea be made a part of the record. Attorney for the defendant then moved that the office judgment be set aside, and entered the plea of non assumpsit, and on defendant's motion the case was continued. The plea in abatement avers that the defendant was a corporation chartered, created, and organized under the laws of the state of Kentucky, and was at the institution of this suit, and still was, a resident and citizen of said state, with its principal office, before the institution of this suit, and still was, in the city of Roanoke, in the state of Virginia; that at the time of the institution of this suit, and ever since, the defendant had carried on its business at its chief office; that at the institution of this suit George H. Hull, the president of the defendant company, was a resident of New York, in the state of New York, and still resided there, and that W. H. H. Dorney, who was the secretary and treasurer of this defendant company, and the chief officers of the said company, resided in the city of Roanoke, Va.. and still reside there; that at the time of the institution of this suit the said defendant company did not do business in said Mercer county, and the plaintiff's alleged cause of action was based upon a contract which was made and entered into in the said city of Roanoke. On the 16thday of August, 1900, a jury was impaneled to try the issue in the action. After the plaintiff's evidence was in, the defendant moved the court to strike out all plaintiff's evidence and direct a verdict for the defendant, which motion the court overruled, to which ruling the defendant excepted. No further evidence being introduced, the jury retired, and returned a verdict upon the issue in favor of plaintiff, against the defendant, for §2, 747.10. The defendant then moved the court to arrest the judgment upon said verdict, and set aside the verdict of the jury and grant it a new trial, for reasons thereafter to be assigned, of which the court took time to consider. On the 13th day of February, 1901, the parties again appeared, and the motion in arrest of judgment, and to set aside the verdict of the jury and grant a new trial, upon the grounds stated in defendant's bills of exceptions Nos. 1 and 2, being considered, was overruled by the court, to which ruling defendant excepted, and tendered said two bills of exceptions, which were made a part of the record. Judgment was then entered upon the said verdict. A writ of error was granted the defendant company.

Defendant says that the court erred in refusing defendant's; plea in abatement or plea to the jurisdiction, and in entertaining this action, of which it had no jurisdiction. Section 16, c. 125, Code, provides: "Where the declaration, or bill, shows on its face proper matter for the jurisdiction of the court, no exception for the want of such jurisdiction shall be allowed, unless it be taken by plea in abatement; and the plea shall not be received after the defendant has pleaded in bar, or answered to the declaration or bill, after a rule to plead, or a conditional judgment or decree nisi." It is conceded by plaintiff in error in the brief that, if the declaration showed upon its face proper matter for the jurisdiction of the court, the plea would have been properly rejected; but counsel insists that the declaration in this case does not show upon its face proper matter for the jurisdiction of the court. The declaration avers that the defendant company is "a corporation organized under the laws of the state of Kentucky, and doing business in the county of Mercer and state of West Virginia." The second clause of section 1, c. 123, Code, providing in what counties suits and actions may be brought, provides, "If a corporation be a defendant, wherein its principal office is, or wherein its mayor, president, or other chief officer resides, or if its principal office be not in this state and its mayor, president, or other chief officer do not reside therein, wherein it does business." In Waterman v. Turtle, 18 Ill. 292, the opinion of the court quotes with approval from Kenney v. Greer, 13 Ill. 432, 54 Am. Dec. 439, where it is held: "It is not necessary, to give jurisdiction, that the declaration contain an aver ment of the facts authorizing the plaintiff' to sue in the county where the action may be brought, and jurisdiction will be presumed unless questioned by plea in abatement or motion interposed in proper time. The circuit courts are courts of superior or general jurisdiction, and, where they 'take cognizance of causes, every intendment is in favor of their jurisdiction, and right fully to exercise it." The return of the officer of the service of the writ in case at bar shows that the process was served upon the agent of the company in its actual employment and who was in charge of the office of said corporation, in the city of Bluefield, in Mercer county, W. Va.; and it shows, further, that none of the officers of said corporation resided in the state, or were found in his bailiwick. The plea itself is in proper form, but as shown by section 16, c. 125, referred to, it cannot be filed after conditional judgment. In Hinton v. Ballard, 3...