Harry Black v. Mike Foley, (No. 8295)
| Decision Date | 26 May 1936 |
| Docket Number | (No. 8295) |
| Citation | 117 W.Va. 490 |
| Court | West Virginia Supreme Court |
| Parties | Harry Black v. Mike Foley |
Appeal and Error
a default judgment should be set aside, upon timely motion of defendant, where it appears that he and his counsel were absent at the trial because of a misunderstanding between the latter and counsel for the plaintiff. In such case, it is not required that the movant make a showing on the merits of the controversy.
Error to Circuit Court, Putnam County.
Action by Harry Black against Mike Foley. To review a judgment of the circuit court refusing to set aside a verdict for plaintiff, on appeal from a justice of the peace, defendant brings error.
Reversed and remanded.
A. J. Barnhart, for plaintiff in error.
B. T. Clayton, for defendant in error.
This writ of error involves the action of the circuit court of Putnam County in overruling the motion of defendant, Mike Foley, to set aside a verdict against him in favor of plaintiff, Harry Black, in an action tried April 8, 1935, on appeal from a justice in the absence of defendant and his counsel.
The case, with others, including a number of criminal cases, was set for trial April 8, 1935. According to the affidavits of A. J. Barnhart, attorney for defendant, and Austin M. Sikes, official court reporter, filed in support of the motion, Barnhart, who had been in attendance of the court on that day, after the noon hour, approached B. T. Clayton, counsel for plaintiff and prosecuting attor- ney of Putnam County, and who was then conducting the trial of a felony case, and inquired of Clayton when this case would be reached for trial; that Clayton replied there would be two more felony cases tried after the case on trial had been completed before the civil case was called; that thereupon Barnhart advised Clayton he was leaving for Charleston, but would return the following morning. The case was called and tried sometime during the afternoon session in the absence of defendant and his counsel. Upon consideration of these affidavits and the affidavit of C. E. Copen, that he had been informed and believed all of the civil cases on the docket had been previously continued to the next term of court, the motion of defendant was overruled by order entered April 11, 1935. By an ex parte order, entered in the absence of defendant and his counsel, April 13, 1935, the affidavits of Clayton, the plaintiff and others were permitted to be filed on behalf of the plaintiff "for the benefit of the record and to aid the court in this case upon application for a writ of error." These affidavits show that Barnhart had stated, on the day of trial before returning to Charleston, that he did not intend to try the case at that term of court; and that in the conversation between him and Clayton (referred to in the affidavits of Barnhart and Sikes), Clayton insisted on Barnhart remaining in court, stating to Barnhart that he intended to press for trial of the case as soon as it was reached.
The affidavits filed ex parte on behalf of plaintiff, not having been in existence at the time the trial court overruled the motion to set...
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Plumley v. May, 10708
...S.E.2d 893; Winona National Bank v. Fridley, 122 W.Va. 479, 10 S.E.2d 907; Arnold v. Reynolds, 121 W.Va. 91, 2 S.E.2d 433; Black v. Foley, 117 W.Va. 490, 185 S.E. 902; State ex rel. Alkire v. Mili, 116 W.Va. 277, 180 S.E. 183; Sigmond v. Forbes, 110 W.Va. 442, 158 S.E. 677; Parsons v. Parso......
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Armstrong v. Jones, 10624
...of the case for trial on June 16, 1953, the order should be vacated under the holdings of this Court in the cases of Black v. Foley, 117 W.Va. 490, 185 S.E. 902; Sigmond v. Forbes, 110 W.Va. 442, 158 S.E. 677; Willson v. Ice, 78 W.Va. 672, 678, 679, 90 S.E. 272, involving oral agreements be......
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Arnold v. Reynolds
...and that he was free from neglect in not making timely defense." (Italics supplied.) The same rule was followed in Black v. Foley, 117 W.Va. 490, 185 S.E. 902, State ex rel Alkire v. Mili, 116 W.Va. 277, 180 S.E. 183. See also, Robinson v. Braiden, 44 W.Va. 183, 28 S.E. 798. Here, the affid......
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Arnold v. Reynolds, (No. 8693)
...and that he was free from neglect in not making timely defense." (Italics supplied.) The same rule was followed in Black v. Foley, 117 W. Va. 490, 185 S. E. 902, and State ex rel. Alkire v. Mili, 116 W. Va. 277, 180 S. E. 183. See also, Robinson v. Braiden, 44 W. Va. 183, 28 S. E. 798. Here......