Federation Window Glass Co. v. Cameron Glass Co.

• Decision Date: 12 December 1905
• Citation: 52 S.E. 518,58 W.Va. 477
• Parties: FEDERATION WINDOW GLASS CO. v. CAMERON GLASS CO. et al.
• Court: West Virginia Supreme Court

52 S.E. 518

58 W.Va. 477

FEDERATION WINDOW GLASS CO. v. CAMERON GLASS CO. et al.

Supreme Court of Appeals of West Virginia.

December 12, 1905

Submitted September 14, 1905.

Syllabus by the Court.

Where the declaration, in an action of assumpsit, contains the common counts, and one or more special counts upon promissory notes in writing for the payment of money, and office judgment by default is entered at rules, the necessity of an order for inquiry of damages in the action is not avoided by section 45, c. 125, Code 1899.

Such office judgment does not become final on the last day of the next succeeding term of court, not having been previously set aside, so as to bar a defense thereafter; but the defendants may plead to issue at any time before the order for inquiry of damages is executed.

The plaintiff, in an action of assumpsit, does not waive the common counts of his declaration by failing to file the account required by section 11, c. 125, Code 1899, at the time the declaration is filed. He may file the account afterwards, and rely upon the common counts.

Appeal from Circuit Court, Marshall County.

Action by the Federation Window Glass Company against the Cameron Glass Company and others. Judgment for plaintiff, and defendant M. L. Benedum appeals. Reversed.

Riley & Ritz, for appellant.

J. C Simpson, for appellee.

COX, J.

This action of assumpsit for $15,000 damages was commenced in the circuit court of Marshall county on the 17th day of October 1903, by the Federation Window Glass Company, a corporation against the Cameron Glass Company, a corporation, M. L Benedum, A. E. Fox, and D. C. Harkins. Process was served on the defendants on the 27th day of October, 1903. The plaintiff filed an original and two amended declarations. The original was filed at November rules, 1903. The first amended declaration was filed in open court on the 26th of January, 1904, and was remanded to rules for proceedings thereon; the defendants not having appeared. The second amended declaration was filed at May rules, 1904. Each of these declarations contained the common counts in assumpsit and one or more special counts upon two promissory notes in writing for the payment of money, alleged to have been made by the Cameron Glass Company on the 21st of July, 1903, payable to its order 60 days after date, each calling for $6,000, and indorsed by said corporation, M. L. Benedum, A. E. Fox, and D. C. Harkins. No bill of particulars was filed with either of the declarations. The record discloses no appearance by defendants at May rules, 1904, when the second amended declaration was filed, but the clerk entered a rule to plead against them. At June rules, 1904, the clerk made the following entry: "Affidavit filed by plaintiff, and, defendant failing to plead to declaration, judgment entered for plaintiff against defendant for damages mentioned in declaration, as shown by affidavit." At the June term of court, 1904, following, nothing was done in the case. By an order entered in term on December 2, 1904, it appears, in substance, as follows: Defendant Benedum moved for a nunc pro tunc order showing a demurrer to The first amended declaration and joinder therein by plaintiff, and moved to quash the plaintiff's affidavit filed, and to set aside the office judgment entered at June rules, 1904, and asked leave to demur and file his plea of non assumpsit to the second amended declaration. The court refused the nunc pro tunc order, refused to permit Benedum to demur and to file the plea of non assumpsit to the second amended declaration, quashed plaintiff's affidavit filed at June rules, 1904, permitted plaintiff to file another affidavit, under section 46, c. 125, Code 1899, refused to give Benedum time to file a counter affidavit, and proceeded to treat the office judgment as final, and to ascertain plaintiff's damages in accordance with the last affidavit, and entered judgment in favor of plaintiff against defendants for the sum of $10,037.45 and costs. Benedum excepted to the several rulings of the court against him, and afterwards obtained from a judge of this court a writ of error to, and supersedeas from, the judgment.

The vital question in this case is: Did the office judgment entered at June rules 1904, become final on the last day of the June term, 1904, of the circuit court of Marshall county, it not having been previously set aside, so as to bar a defense thereafter? The second amended declaration, upon which this office judgment was entered, contained the common counts, and a special count upon the two promissory notes mentioned. Plaintiff claims that this office judgment became final on the last day of the June term, 1904, so as to bar a defense thereafter, and relies upon the cases of Hutton v. Holt, 52 W.Va. 672, 44 S.E. 164, Marstiller v. Ward, 52 W.Va. 74, 43 S.E. 178, and Bradley v. Long (W. Va.) 50 S.E. 746. Those cases involved the finality of office judgment in actions where no order for inquiry of damages was proper or necessary. The authority of those cases does not apply to actions in which such order is necessary. The recent case of Philip Carey Mfg. Co. v. Watson (decided by this court at this term) 52 S.E. 515, involved the question of the finality of office judgment in an action of assumpsit, where the declaration contained only the common counts. In that case it was held: "In an action of assumpsit, where an order for inquiry of damages is required, the office judgment entered at rules does not become final on the last day of the next succeeding term of court, if not previously set aside, so as to bar a defense thereafter; but the defendant may plead to issue at any time before the order for inquiry of damages is executed." The only material difference between that case and the case here presented is that the declaration here contained, in addition to the common counts, the special count upon the two promissory notes; but this fact did not take the common counts out of the declaration. We do not deem it necessary to repeat what we have said in the case last mentioned. Section 45, c. 125, Code 1899, only makes an order for inquiry of damages unnecessary in an action for debt upon any bond or other writing for the payment of money, or against the drawer or indorser of a bill of exchange or negotiable note, or in an action of debt or scire facias upon a judgment or recognizance. It may be argued that this action, while not an action of debt, is an action for debt on writings for the payment of money, and therefore exempted by said section from the necessity of an order for inquiry of...