Jayne v. Kane
| Decision Date | 18 September 1924 |
| Citation | 124 S.E. 247 |
| Parties | JAYNE . v. KANE. |
| Court | Virginia Supreme Court |
Error to Circuit Court, Scott County.
Action by H. S. Kane against J. Q. Jayne. Judgment for plaintiff, and defendant brings error. Affirmed.
S. H. Bond, of Gate City, for plaintiff in error.
S. W. Coleman, of Gate City, for defendant in error.
This is a proceeding by attachment instituted by the defendant in error against the plaintiff in error, seeking to enforce the payment of a certain negotiable note.
As a matter of convenience, Kane will be referred to as plaintiff and Jayne as defendant.
On the 5th day of September, 1922, the plaintiff filed his petition in the circuit court of Scott county, praying for an attachment to issue against the estate of the defendant on the ground that the defendant was indebted to him in the sum of $200, with interest thereon from the 18th day of October, 1908; that the defendant was a nonresident; and that he was the owner of real estate situated in the county. The sheriff of the county executed this attachment by levying the same on the undivided interest of defendant in 318 1/2 acres of land situate in Scott county.
From the record it appears that on the 18th day of June, 1908, the defendant executed his negotiable note to J. L. White, E. J. Buchanan, and W. L. Harkey, for the sum of $200, payable four months after date; the plaintiff indorsed the note as surety of said defendant; that this note was given in payment of the right to sell a patent bed brace in the state of West Virginia; that at the time the note was executed both parties resided in Scott county.
On a date not disclosed by the record, White et al. assigned the note, without recourse, to W. G. Sandoe, who at the date of maturity of the note presented the same to plaintiff for payment; plaintiff on this occasion paid the sum of $50 on the note, and on the 7th day of January, 1909, paid the balance due and received from Sandoe the note.
At the October, 1922, term of the circuit court, the defendant appeared and pleaded the general issue to the said petition, and also filed a plea in writing of the statute of limitations, as follows:
"The defendant, J. Q. Jayne, says that the said supposed cause of action did not accrue at any time, if at all within five years next preceding the institution of this suit or action, and this he is ready to verify."
To the plea of the general issue the plaintiff replied generally, and also replied generally to the plea of the statute of limitations, and also filed two special replications in writing to the plea of the statute of limitations, as follows:
(1)
(2) "And the said plaintiff says that by reason of anything in the said defendant's plea of the statute of limitations alleged he ought not to be barred from having or maintaining his action aforesaid against the said defendant, because he says that the said note in the declaration or petition mentioned and executed and delivered by the said defendant to the payees mentioned therein while the said defendant was a resident of Scott county, Va., and that afterwards and before said plaintiff's cause of action accrued, moved his place of residence from and out of the said county and has not since, until
on the —day of August, 1922, so far as
said plaintiff was able to learn, owned any property in the said county or state; that before, at the time, and since the said plaintiff's cause of action accrued, the said defendant represented and stated to the said plaintiff that he (the said defendant) resided in the state of West Virginia, which statement and representation the said plaintiff believed to be true and relied thereupon, and which said statements and representations of the said defendant obstructed the prosecution of the said plaintiff's said right and cause of action. And this he prays may be inquired of by the country."
To both of the special replications the defendant demurred, and the trial court overruled the demurrer in each instance. Thereupon, neither party objecting te a trial by a jury, the court impaneled a jury and a trial was accordingly had, which resulted in a verdict for the plaintiff.
The first error assigned is to the action of the court in overruling the demurrer of the defendant to the two special replications of the plaintiff.
That the demurrer interposed was oral and general must be assumed as the record fails to disclose the grounds thereof. The only evidence that any demurrer was ever filed isfound in the order of the court entered on the 10th day of January, 1923, wherein it is stated that the plaintiff filed two special replications in writing,
What grounds of demurrer were relied on in the lower court we are unable to say, as none were stated as far as is shown by the record before us.
The presumption of the law is in favor of the correctness of the judgment of the lower court, and the Supreme Court will not reverse unless error affirmatively appears by the record. Johnson v. Michaux, 110 Va. 595, 66 S. E. 823.
We are therefore of the opinion that there is no merit in this assignment of error.
The second assignment of error is to the action of the court "in calling a jury to try this case, neither party demanding a jury."
This assignment raises a most novel question. The point here made is that a litigant has been done a wrong by submitting his rights of property to a jury of his...
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Hagood v. Commonwealth
...general demurrer was interposed but the reasons relied upon for its support were not stated. Ordinarily this is insufficient. Jayne Kane, 140 Va. 27, 124 S.E. 247. But where constitutional rights are invaded they may be set up by general demurrer or otherwise, at any time, and even in this ......
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Hagood v. Commonwealth
...demurrer was interposed, but the reasons relied upon for its support were not stated. Ordinarily this is insufficient. Jayne v. Kane, 140 Va. 27, 124 S. E. 247. But where constitutional rights are invaded they may be set up by general demurrer or otherwise, at any time, and even in this cou......
- Crosswhite v. Barnes