Howie Min. Co. v. McGary

• Decision Date: 26 February 1919
• Citation: 256 F. 38
• Parties: HOWIE MINING CO. v. McGARY et al.
• Court: U.S. Court of Appeals — Fourth Circuit

256 F. 38

HOWIE MINING CO. v. McGARY et al.

United States District Court, N.D. West Virginia.

February 26, 1919

H. M Abercrombie, of Baltimore, Md., Fred A. Dolph, of Chicago Ill., Clarence E. Martin, of Martinsburg, W. Va., D. B Evans, of Moundsville, W. Va., and Frank A. O'Brien, of Wheeling, W. Va., for plaintiff.

John P Arbenz, of Wheeling, W. Va., for defendants.

DAYTON District Judge.

Defendants, under section 4979, Hogg's W.Va. Code 1913 (section 5, c. 134), have made a motion to set aside the default judgment entered in this case in term at Martinsburg, on the 4th day of April, 1918. The reasons assigned for such relief sought are:

First-- Because of the fraud practiced therein against the defendants, and each of them, by the plaintiff, or at least by certain of its attorneys.

Second-- That both of the defendants exercised due diligence in the protection of their rights and the prosecution of their case, but they virtually never have had their day in court-- never had even an opportunity to be heard or to present their defense, and all this, too, through no fault of theirs.

Third-- That the judgment was taken after the act of Congress, known as 'Soldiers and Sailors Civil Relief Act,' approved March 8, 1918, was in force, and the affidavit or proof that defendants were not in the military or naval service of the United States at the time was not filed.

The substantial facts are these:

Summons was sued out of the clerk's office at Martinsburg on February 7, 1917, returnable to March rules. By the West Virginia statute rules are held in the clerk's office every first Monday in a month, except when a term of court happens to commence on the first Monday in a month, or either of the two following days, or on the preceding Tuesday, Wednesday, Thursday, Friday, or Saturday, the rules which otherwise would have been held for the said month on the first Monday, shall be held on the last Monday in the next preceding month, The rules may continue three days; but when in any case such continuance would interfere with the terms of the court for which the rules are held, they shall not continue in such case beyond the day preceding the commencement of the term of court. The rules may be to declare, plead, reply, rejoin, or for other proceedings; they shall be given from month to month.

A defendant may appear at the rule day at which the process against him is returnable, or, if it be returnable in term, at the first rule day after the return day, and, if the declaration or bill be not then filed, may give a rule for the plaintiff to file the same. If the plaintiff fail to do this at the succeeding rule day, or shall, at any time after the defendant's appearance, fail to prosecute his suit, he shall be nonsuited, and pay to the defendant, besides his cost, $5. If three months elapse after the process is returned executed as to any one or more of the defendants, without the declaration or bill being filed, the clerk shall enter the suit dismissed, although none of the defendants have appeared. Hogg's W.Va. Code, Secs. 4755, 4759, 4760, and 4761 (chapter 125, sections 1, 5, 6, and 7).

It is not controverted that the summons, served in person on both defendants, with proper indorsement of such service, was returned by the marshal to March rules, 1917, at which no appearance was made and no declaration filed; at April rules following no appearance was made and no declaration filed; at May rules the declaration was filed and common order taken, which at June rules was confirmed and a writ of inquiry awarded. The effect of these proceedings at rules, with no appearance by the defendants, was to establish liability and leave only the amount of damages to be awarded, to be ascertained by the court. The next term of court was held, commencing on the third Tuesday of September (the 17th), 1917, when, ordinarily, this writ of inquiry would have been executed, the damages ascertained, and judgment therefor rendered. This, however, was not done, but, on the contrary, an order was entered continuing the execution of the writ of inquiry, setting it down for trial at the following term, to be held commencing on the first Tuesday (the 2d) of April, 1918, when on the third day of that term the writ of inquiry was tried, the damages ascertained, and the judgment therefor entered. Under the rules of pleading and practice of the state, which we are required to follow, up to the this 4th day of April, 1918, the defendants were entitled to appear, have the common order set aside, and enter such pleas and make such defense as they might be advised to do; but no such appearance was made. Specifications of damages were filed, and a number of witnesses were introduced by the plaintiff on the trial to support its demands.

It is now set forth in affidavits tendered, and not disputed, that, shortly after defendants were served with process instituting the suit, they employed a most reputable attorney of large practice and great ability, resident in Wheeling, distant from Martinsburg something near 300 miles, to represent them and protect their interests in the case; that this attorney, under date of March 5, 1917, directed to the deputy clerk of this court at Martinsburg a letter as follows:

'As soon as the declaration is filed in the case of Howie Mining Company v. David McGary and W. R. Covert, please send me a certified copy of it, together with your bill therefor.'

This letter was dictated by the attorney to his stenographer, who says he made a transcript of it, signed the attorney's name to it, made a letter press and a carbon copy of it, addressed it to the deputy clerk at Martinsburg, and mailed it to him. At the instance of the clerk of this court, his deputy at Martinsburg has made two statements, to the effect that he has made two distinct careful examinations of his official files, finds no such letter therein, has no recollection of ever having received or seen any such letter, and that his uniform custom, upon receipt of such letters, is to answer them promptly. It is not improper to say in this connection that this deputy clerk has long held this place, is thoroughly competent, very careful and experienced in the duties of his office, a lawyer of high standing in his profession, and a man of the strictest integrity and honor. It would seem, therefore, beyond question that such letter was sent, but not received.

The defendants in their affidavit say, after stating the employment of the attorney, that upon a number of occasions they had conversations with him, and was informed by him that he had received no reply to this letter from the deputy clerk, and that therefore he assumed that no declaration had been filed; that at least four months after the bringing of the suit the attorney told them no reply had been received to the letter, and that undoubtedly the suit had been dismissed for failure to file a declaration therein. It further appears from these affidavits that one Smith H. Bracey was president of the plaintiff company; that in the criminal court at Wheeling an indictment had been presented against him at the instance of the defendants McGary and Covert as prosecuting witnesses; that they had employed this same attorney of theirs to assist, and he did assist, in the prosecution of this criminal proceedings against Bracey; that three of the attorneys representing the plaintiff in this civil action had defended Bracey in the criminal prosecution, and therefore defendants verily believe that said three attorneys knew, at the time this judgment was taken by default, that they had employed their attorney to make defense herein, but concealed such knowledge from the court.

Much as this court may regret any injustice done, if any has been done, to defendants, it cannot reconcile itself to the conclusion that these facts warrant it in setting aside this judgment. It can hardly be held that failure to receive an answer to a letter, liable to be lost in the mails, as doubtless was the case here, will justify their sleeping on their right to appear on the return day of their summons give rule to plaintiff to file its declaration, and in case it failed to do so within the time expressly required by statute, have the case promptly dismissed in the clerk's office. Too much hazard is involved in basing court procedure upon the delivery of ordinary letter mail. Fully conceding the letter to the clerk was mailed, the mental query constantly recurs, why, when no answer came, was no other inquiry made, no other letter even written, to ascertain whether they could rest in security and believe the action dismissed for failure to file the declaration? Neither attorney nor defendants seem to have made a suggestion, one to the other, that such very natural course could be taken, in order that they might be...