Gainer v. Smith

• Decision Date: 06 April 1926
• Docket Number: (No. 5274.)
• Citation: 132 S.E. 744
• Court: West Virginia Supreme Court
• Parties: GAINER. v. SMITH.

132 S.E. 744

GAINER.

v.SMITH.

(No. 5274.)

Supreme Court of Appeals of West Virginia.

April 6, 1926.

(Syllabus by the Court.)

Error to Circuit Court, Barbour County.

Assumpsit by Ivy Gainer against A. D. Smith. Default judgment for plaintiff, which by order of the court was set aside, and plaintiff brings error. Order reversed, and judgment reinstated.

Wm. T. George, of Philippi, for plaintiff in error.

LIVELY, J. Plaintiff, Ivy Gainer, obtained this writ of error from an order entered in the circuit court of Barbour county setting aside a default judgment in her favor against A. D. Smith.

Plaintiff instituted an action of assumpsit against defendant, Smith, with process returnable to April rules, 1923, which process was served on him February 21, 1923. On February 1, 1924, upon a writ of inquiry, a jury returned a verdict in favor of plaintiff for $3,000, and judgment was entered thereon February 2, 1924. Defendant made no appearance until February 7, 1924, when by counsel he asked leave to file pleas of nonassumpsit and the statute of limitations, and moved the court to set aside the judgment so entered and grant him a new trial, and filed in support of this motion his two affidavits dated February 5th and February 7th, 1924. The plaintiff's counsel filed his counter affidavit, accompanied by a letter of defendant dated January 1, 1924, and affiant's reply thereto, dated January 3, 1924, in opposition to the filing of said pleas and the granting of said motion. Whereupon the lower court, being of the opinion that defendant had shown good cause for setting aside the verdict and judgment, entered the order complained of.

In his affidavit of February 5, 1924, defendant says that he was not present in court or represented by counsel upon the trial of said action or at the time judgment was rendered against him; that, although W. T. George is plaintiff's attorney of record in the instant case, he has been defendant's counsel for a number of years and is representing him in two cases now before the circuit court of Barbour county; that he had written to George on January 1, 1924, and from George's reply thereto he had received the impression and information that all the cases in which affiant was interested, and especially that of Ivy Gainer v. Smith, had been continued for the term of court at which the judgment complained of was entered. Affiant further says that plaintiff has for a long time been absent from West Virginia, and her place of residence was unknown to him and to Attorney George; that although plaintiff had instituted this proceeding on February 20, 1923, she made no appearance therein until February 1, 1924, and has not prosecuted her suit, although affiant appeared at each succeeding term of court since the institution of the action and has been ready for the trial thereof; that by reason of the impression received by him in respect to the continuance of this suit, he was taken by surprise; and that he has a good defense to the suit, namely, that he does not owe the plaintiff the sum charged in her declaration, and the statute of limitations.

William T. George, in his counter affidavit of February 6, 1924, says that he is advised that Ivy Gainer lives at Moundsville, W. Va., and that he is attorney of record for her in the instant ease. He filed with his affidavit the letter received by him from Smith, dated January 1, 1924, and a carbon copy of his reply thereto, dated January 3, 1924. These letters were as follows:

"Fairmont, W. Va., Leona Court, 307,

"Jan. 1, 1924.

"Mr. Taylor George—Dear Sir: Please let me know the dates that my cases is set for also in the Huse Tomson case you have summoned J. J. Gainer, he is at Jim Ramseys, Grant Price, Wade Poling, and Joe Rennale, he is at Gage. I will pay for the summons when I come up, I live here.

"I saw Charlie Brandon about the papers; he said that they are in Murphy's Office, so you please get after Murphy.

"Yours very truly, A. D. Smith."

"January 3, 1924.

"Mr. A. D. Smith, Fairmont, West Virginia— My Dear Sir: In reply to yours of January 1, 1924, beg to say, that neither your Thompson nor the Cade case will be tried at the coming term of court. I didn't know what had become of you and when the docket was set by the bar the other day, which was before I received your letter, I agreed with Mr. Ware to continue.

"The Ivy Gainer case may be tried in case she appears, but it will not come up till about the last of this month or the early part of next month.

"Yours very truly."

In defendant Smith's affidavit of February 7, 1924, he says that it was impossible for him to be present at the trial of said action, because on January 25, 1924, he was arrested and charged with crime in Marion county, and was placed under bond for his appearance to answer an indictment on February 1, 1924; that he appeared before the criminal court of Marion county on February 1, 1924, and was unable to leave there until February 4, 1924; and that on February 5th, the earliest date possible, he appeared in the circuit court of Barbour county to defend the suit of Ivy Gainer v. Smith.

The controlling question presented in this case is whether "good cause, " within the meaning of section 47, c. 125, Code, has been shown for setting aside the default judgment. To furnish such "good cause" there must be "fraud, accident, surprise, mistake, or some adventitious circumstance...