Grigg v. Dalsheimer

• Decision Date: 10 December 1891
• Citation: 13 S.E. 993,88 Va. 508
• Parties: Grigg et al. v. Dalsheimer et al.
• Court: Virginia Supreme Court

13 S.E. 993

88 Va. 508

Grigg et al.

v.Dalsheimer et al.

Supreme Court of Appeals of Virginia.

Dec. 10, 1891.

Wbit of Prohibition — When Lies—Validity ov Judgment.

Code Va. § 3286, provides that when, in an action of assumpsit, an affidavit is filed with the declaration, no plea in bar shall be received unless supported by the affidavit; and, if such plea and affidavit are not filed, there shall be no inquiry of damages, but judgment shall be for plaintiff for the amount claimed.in the affidavit filed with the declaration. Held, that where a plea of non assumpsit unaccompanied by affidavit was stricken out, and the subsequent tender of a plea accompanied by affidavit refused, a final judgment given by the court for plaintiffs was not void, as the court had jurisdiction, though it would have been the duty of the clerk to enter judgment at rules, and therefore its enforcement would not be restrained. Fauntleroy, j., dissenting.

Application of Griggs & Cross for writ of prohibition to restrain proceedings for collection of a judgment entered by the court for respondents, S. Dalsheimer & Bro., in an action of assumpsit by respondents against petitioners, the court having in such case stricken out petitioners' plea of non assumpsit for the reason that it was not accompanied by affidavit, and refused to receive another plea of non assumpsit supported by a proper affidavit. Writ denied.

Geo. P. Haw, for petitioners.

Jo. Lane Stern, for respondents.

Lewis, P. Section 3286 of the Code provides that when, in an action of assumpsit for money, (except where the process is served by publication,) an affidavit is filed with the declaration, stating that the amount claimed is justly due, and the time from which interest is claimed, no plea in bar shall be received, either at rules or iu court, unless accompanied by an affidavit in support thereof; and then it is further enacted that, "if such plea and affidavit be not filed by the defendant, there shall be no inquiry of damages, but judgment shall be for the plaintiff for the amount claimed in the affidavit filed with the dec-laration." These provisions relative to the action of assumpsit were for the first time incorporated into the statute law of the state upon the adoption of the new Code. Their obvious purpose is to prevent delay, aDd, with that object in view, to simplify and shorten the proceedings. It will be observed that the provision is express that no plea in bar shall be received unless accompanied by an affidavit; so that, without the requisite affidavit, such a plea is, in legal effect, a nullity. There can be no doubt, therefore, that the motion to strike out the plea in the present case was rightly granted, nor that the case stood, before the motion was granted, in...