Jennings v. Wiles.
| Decision Date | 24 September 1918 |
| Citation | 82 W.Va. 573 |
| Court | West Virginia Supreme Court |
| Parties | Jennings v. Wiles. |
'' Pleading.''
A notice of motion for judgment under Sec. 6, Ch. 121, Code, takes the place of both a declaration and a summons in an ordinary action, and a motion to quash such notice is, in effect, a demurrer thereto, and hence is a pleading within the meaning of Sec. 47, Ch. 125, Code. (p. 575).
Where a defendant, immediately after being served with notice of a motion for judgment, employs counsel to defend the suit, and is advised by him that the notice is defective and that he will appear for him and move to quash it, and that, if his motion should be overruled, it will then be time to make defense, and his counsel informs the clerk of the court of his employment and purpose to move to quash the notice, and on the day to which the motion is returnable is in the court room and remains there until the clerk has nearly finished calling the docket and then, by permission of the court, retires to his office, which is in the same town in which the court is held, to fulfill a previous business engagement, and thereafter returns to the court room during the recess hour and remains until the expiration of the time at which the court usually reconvenes, and again retires to his office, under the information and belief that the court had adjourned for the day, and later in the day, about 2:00 P. M., counsel for plaintiff appears and, in his absence, obtains a default judgment for plaintiff, and defendant's counsel appears on the next morning, after such judgment had been entered up, and moves the court to set it aside, and hear a motion to quash the notice for insufficiency, and the court thereupon sets a future day in the term for the hearing thereof, requiring notice thereof to be given plaintiff's counsel, and on the day appointed counsel for the respective parties appear and defendant's counsel files his affidavit stating the foregoing facts and also his client's counter-affidavit showing that he has a good defense to the suit, which affidavits are uncontradicted, good cause is thereby shown calling for the setting aside of the judgment and granting the defendant an opportunity to make defense. (p. 575).
Error to Circuit Court, Monongalia County.
Action by M. J. Jennings against J. W. Wiles. Judgment for plaintiff by default, motion to set aside the judgment overruled, and defendant brings error.
Reversed and remanded,
Lazzelle & Stewart, for plaintiff in error. C. W. Flesher, for defendant in error.
Mrs. M. J. Jennings recovered a judgment against J. W. Wiles on the 4th of October, 1917, on notice and motion. The judgment was by default. On the following morning defendant appeared by counsel and, before the orders of the preceding day had been signed, moved the court to set it aside and quash the notice as being insufficient in law. Plaintiff's counsel was not then present, and the court set the 15th of October for the hearing of the motion and required notice thereof to be given to the plaintiff's counsel. Counsel for the respective parties then appeared, and defendant's counsel tendered and was allowed to file a number of affidavits for the purpose of showing that good grounds existed for setting aside the judgment. No counter-affidavits were offered by the plaintiff. The court overruled defendant's motion and refused to set aside the judgment, and defendant was awarded this writ of error. These proceedings were all had at the same term of court.
It was not necessary for defendant to tender a written plea to the notice, as his motion to quash was in effect a demurrer, and his affidavits filed in support of his motion to set aside the judgment are sufficient counter-affidavits. The notice of motion, under section 6, chapter 121, Code, takes the place of both a declaration and summons in an ordinary action, and a motion to quash the notice is in effect a demurrer thereto, and is a pleading within the meaning of section 47, chapter 125, Code. But it was first necessary to set aside j the judgment before the demurrer or motion to quash could j be entertained. If the judgment had been set aside and the | motion to quash had been overruled, there would have been time then to plead. Snyder v. Cochran, 80 W. Va. 252. Hence, the only question here presented is, has defendant shown good cause for which the judgment should have been set. aside.
Section 47, chapter 125, Code, provides that where judgment by default "has been entered up in court ******, it shall not be set aside without good cause be shown therefor." The affidavits filed by defendant's counsel must be accepted as true, they being uncontradicted. It appears that as soon as defendant was served with, notice of the suit he employed the law firm of Lazzelle & Stewart, in the City of Morgantown, to defend the suit, and was then advised by Mr. Lazzelle that he thought the notice was not sufficient in law and the court ought to sustain a motion to quash it; that if the court refused to do so, it would be time enough then to get ready for trial. Affiant Wiles also says the claim is without any merit, that plaintiff never gave him any money to buy furniture with, that he does not owe her anything at all, and that if he were given an. opportunity he believes he can defeat her claim. Wiles is corroborated by the affidavit of I. G Lazzelle, senior member of the firm of Lazzelle & Stewart, and the one in charge of the ease. This, affiant also says that, as soon as the notice was filed in the clerk's office, he went to the clerk and notified him that he was employed as counsel for the defendant, that there were no grounds for the suit and that he intended to move the court to quash the notice; that he went to the court room on the morning of the day to which the notice was returnable with the intention of moving to quash it, and remained there for sometime while the docket was being called, but, having important business in his office which required his presence at a fixed time, he asked the court to be excused and went to his office; that about 1:30 o'clock in the afternoon, that being the hour at which the court usually convened after the noon recess, he returned to the court room and remained there from a half to three-quarters of an hour, and the judge not then having returned, and being informed by someone that the court had adjourned, he went back to his office, believing that there would be no further court on that day and did not return to the court room until the next morning; that he is ac. quainted with the facts in connection with plaintiff's claim and has seen papers and correspondence relating to it, and that, from the information thus obtained, he bel...
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Esso Standard Oil Co. v. Kelly
...of motion for judgment, being both a summons and a pleading, State ex rel. Stout v. Rogers, 132 W.Va. 548, 52 S.E.2d 678; Jennings v. Wiles, 82 W.Va. 573, 96 S.E. 1009; Stuart v. Carter, 79 W.Va. 92, 90 S.E. 537, L.R.A.1918D, 1070, is a pleading in an action at law as distinguished from a p......
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Kitson v. Messenger.
...The notice to quash was equivalent to a demurrer to the notice. County Court v. Thornburg, 65 W. Va. 185, 63 S. E. 975; Jennings v. Wiles, 82 W. Va. 573, 96 S. E. 1009. And, while the record does not show the grounds assigned for such motion, if we treat it as a demurrer, any defects appear......
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Kitson v. Messenger
... ... The notice to quash was equivalent ... to a demurrer to the notice. County Court v ... Thornburg, 65 W.Va. 185, 63 S.E. 975; Jennings ... [126 W.Va. 65] v. Wiles, 82 W.Va. 573, 96 S.E. 1009 ... And, while the record does not show the grounds assigned for ... such motion, if we ... ...
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Ellis v. Gore
...by the affidavit? Has "good cause" been shown? This is the sole question. Post v. Carr, 24 S.E. 583, 42 W.Va. 72, and Jennings v. Wiles, 96 S.E. 1009, 82 W.Va. 577, that in order to establish good cause under the statute the applicant must show fraud, accident, mistake, surprise, or some ad......