Hall v. Harrisville Southern R. Co

• Decision Date: 01 March 1927
• Docket Number: (C. C. No. 388.)
• Citation: 137 S.E. 226
• Court: West Virginia Supreme Court
• Parties: HALL. v. HARRISVILLE SOUTHERN R. CO. et al.

137 S.E. 226

HALL.

v.HARRISVILLE SOUTHERN R. CO. et al.

(C. C. No. 388.)

Supreme Court of Appeals of West Virginia.

March 1, 1927.

(Syllabus by the Court.)

Certified Case from Circuit Court, Ritchie County.

Action by F. A. Hall against the Harrisville Southern Railroad Company and others by notice of motion for judgment on a note. A motion to quash the notice and return of service as to the affidavit or verified account attached to the notice was sustained, and the court's ruling was certified under Code, c. 135, § 1. Ruling reversed.

S. A. Powell, of Harrisville, for plaintiff.

Robinson & Robinson, of Clarksburg, and R. S. Blair, of Harrisville, for defendants.

LITZ, J. [1] This is an action by notice of motion for judgment. The circuit court sustained a motion to quash the notice and re turn of service as to the affidavit or verified account attached to the notice, and certified its ruling under section 1, c. 135, Code.

The basis of suit is a note signed by the defendant Harrisville Southern Railroad Company, as maker, dated April 1, 1922, payable on demand at the First National Bank of Harrisville, W. Va., to the order of the defendants A. C. Fisher, J. F. Deem, W. S. Stout, B. F. Patton, A. C. Wilson, H. E. Was, and J. B. Westfall, for $15,000, and indorsed by said payees.

The ruling of the circuit court both as to the sufficiency of the notice and the return of service is without basis. The notice, after describing the note and alleging its execution by the defendants, states that it was "negotiated to and acquired by" the plaintiff, and thereafter, on January 5, 1926, payment thereof was demanded of and refused by the maker; whereupon the instrument was duly protested for nonpayment "and notice of such demand, nonpayment, and protest was duly given to the maker of said note and to each of the indorsers thereon, " and that there is justly due and owing to the plaintiff from the defendants and each of them on account of said paper, including interest thereon to the date of notice and protest fees, after allowing all payments, credits, and sets-off made by the defendants or any of them, or to which they or any of them are entitled, the sum of $18,724.19.

It is the purpose of a notice, on which to base a motion for judgment, to acquaint the defendant with the grounds on which he is to be proceeded against: and if it be so plain that the defendant cannot mistake its object it is sufficient, however wanting it may be in form and technical accuracy. Board...