Haga v. King Coal Chevrolet Co.

• Decision Date: 25 October 1966
• Docket Number: No. 12564,12564
• Citation: 150 S.E.2d 599,151 W.Va. 125
• Parties: Edward HAGA and Jack A. Richmond, doing business as Allen Motor Company v. KING COAL CHEVROLET COMPANY, a corporation.
• Court: West Virginia Supreme Court

Page 599

150 S.E.2d 599

151 W.Va. 125

Edward HAGA and Jack A. Richmond, doing business as Allen Motor Company v. KING COAL CHEVROLET COMPANY, a corporation.

No. 12564.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 13, 1966.

Decided Oct. 25, 1966.

Syllabus by the Court

1. Where the plaintiff in an action holds a prior lien on an automobile which he has not lost by waiver or estoppel and the vehicle is sold by a repairman asserting an improver's lien thereon, such prior lien would attach only to the proceeds of the sale, and it is improper to render a judgment for the plaintiff against the repairman for the full balance still due on the note secured by the lien and given by the original owner of the car for the purchase thereof, to which the repairman was not a party.

2. If a genuine issue as to any material fact is raised in any action, a summary judgment under the provisions of Rule 56, R.C.P. can not be granted.

3. Upon motion for a summary judgment under Rule 56, R.C.P. all exhibits and affidavits and other matters submitted by both parties should be considered by the court, and such motion can be granted only when it is clear that no genuine issue of material fact is involved.

4. A motion by both plaintiff and defendant for summary judgment under Rule 56, R.C.P. does not constitute a determination that there is no issue of fact to be tried and if a genuine issue of material fact is involved both motions should be denied.

5. Questions on appeal should be restricted to the record upon which the trial court rendered its judgment and should not include additional matter filed in the trial court after the rendition of its judgment and after an appeal is granted from said judgment.

Pat R. Hamilton, Oak Hill, for appellant.

No appearance for appellees.

BERRY, Judge:

This is an action instituted in the Circuit Court of Fayette County, West Virginia, by the plaintiffs, Edward Haga and Jack A. Richmond, doing business as Allen Motor Company, against the defendants, King Coal Chevrolet Company, a Corporation, and Lewis Jones, to recover money due on a note given by the defendant Lewis Jones for the purchase of an automobile from the plaintiffs and secured by a lien by virtue of a conditional sales contract noted on the title issued by the Department of Motor Vehicles. The car was later sold by the defendant King Coal Chevrolet Company under an improver's lien for repairs and storage of said automobile.

The questions involved are whether King Coal Chevrolet Company, a Corporation, holder of an improver's lien on an automobile, had the right to sell it free and clear of a purchase money lien, or whether the case was alleged and proved by the plaintiffs sufficiently, or whether certain papers, part of the printed record, are part of the actual record, or whether it was a proper case for summary judgment, and which, if any, of these multiple issues controls the disposition of the case.

From a summary judgment of September 25, 1965, in favor of the plaintiffs, this Court granted an appeal and supersedeas on March 21, 1966. It was submitted to the Court in the September Regular term, 1966, on the record and brief by defendant King Coal Chevrolet Company, a Corporation, the plaintiffs having neither appeared nor filed a brief.

On or about March 2, 1964, the Allen Motor Company, whose partners are plaintiffs herein, at Hinton, West Virginia, sold a 1957 Ford station wagon to Lewis Jones for $650.00. Jones obtained a title which showed a lien of $703.20 in favor of the National Bank of Summers of Hinton, West Virginia. The complaint of March 23, 1965, alleges that plaintiffs, the dealers, assigned the conditional sales contract to the bank, that Jones made two payments and defaulted, forcing plaintiffs to pay off the note, and the bank then assigned the note and lien to the plaintiffs 'as shown by a copy of said assignment attached hereto and hereby made a part hereof.' The assignment copy was, however, not attached. The amount due on the contract was stated to be $609.44.

Then the complaint alleges in Paragraph 2 that the lien appeared on the face of the title, 'as shown by a copy of the certificate of title to said automobile attached hereto and marked 'Exhibit A',.' However, the certificate of title was not so attached.

The complaint alleges in Paragraph 3 that defendant King Coal, another automobile dealer, on or about October 13, 1964, with full knowledge of the lien, sold the car at a public sale to satisfy an alleged mechanic's lien and storage charge, claimed against Jones, the owner.

Paragraph 4 alleges that defendants, King Coal and Jones, were both requested by the plaintiffs and the bank to pay the remaining amount, but refused to do so.

The complaint concludes with a demand for judgment against the defendants for the amount of $609.44.

To this complaint, King Coal Chevrolet Company filed an answer. The defendant Jones did not appear and defend in any manner in the trial court. The answer says that it has not sufficient knowledge of the assignment transactions to answer or deny, and has no knowledge of the dealings between Lewis Jones and the plaintiffs and 'was not chargeable therewith.' This statement, under the provisions of Rule 8(b), R.C.P., 'has the effect of a denial.' The answer further says the lien shown on the title was in favor of the bank, not the plaintiffs. Defendant King Coal alleges that it notified the bank of the proposed sale but had no reason to notify the plaintiffs, that the automobile was properly sold in accordance with Code, Chapter 38, Article 11, Section 17, after notice served on the owner and bank by registered mail, return receipt requested, that nothing was heard from either party and that the automobile was therefore sold. King Coal Chevrolet Company therefore prayed for dismissal of the action.

On May 19, 1965, defendant King Coal Chevrolet Company moved for summary judgment, accompanied by affidavit of an official of that Company, in which the grounds were that the defendant had, prior to the sale, notified the only lien holder and plaintiffs were not of record as such, and plaintiffs have no legal basis for a claim. It is further stated in the affidavit that defendant had no actual or constructive notice of a lien in favor of the plaintiffs, and that the car was sold for $225.00 and this amount applied on the total sum of $393.20 due King Coal as a lien holder. The notices to the bank and Jones, showing receipt thereof, were submitted with the motion and affidavit.

At this point in the record are found the assignment by which the Allen Motor Company secured the car before Allen sold it to Jones and the reassignment of the title by which Jones got it, with the bank's lien mentioned therein, and Jones' title which he got after purchase, showing a conditional sales lien in favor of the bank. How these got in the record is not quite clear except that there is an indication that defendant King Coal submitted them.

Following the motion for summary judgment by the defendant King Coal Chevrolet Company is a motion for summary judgment by the plaintiffs, returnable on the same day, taking the position that King Coal Chevrolet Company admits it knew of the bank's lien and it has not been paid off or discharged, and that the statute relating to the improver's lien (called elsewhere in the papers improperly a mechanic's lien) provides that the improver stands in the same shoes as a purchaser would, and that when King Coal Chevrolet Company sold the car, it was bound to pay off the first lien of the bank.

After examination of the...