Jones, Inc. v. WA Wiedebusch Plumbing & Heating Co.
| Citation | 201 S.E.2d 257 |
| Decision Date | 11 December 1973 |
| Docket Number | No. 13298.,13298. |
| Parties | JONES, INC., a corporation v. W. A. WIEDEBUSCH PLUMBING AND HEATING CO., a Corporation v. EMSWELLER INCORPORATED, a Corporation and Norris Industries, a Corporation. |
| Court | West Virginia Supreme Court |
George R. Farmer, Jr., Farmer & Farmer, Morgantown, for Norris Industries.
McWhorter, McNeer & Highland, W. Paul McWhorter, Clarksburg, for Emsweller Inc.
Furbee, Amos, Webb & Critchfield, Alfred J. Lemley and Kenneth R. Miller, Fairmont, for Wiedebusch.
The facts developed during the trial of this case are set out in more detail in the opinion of the companion appeal case, 201 S.E.2d 248 involving the same parties, but a brief statement of the facts for the disposition of this appeal, which involves a procedural question, follows:
This action was instituted after a sprinkler head installed for fire prevention purposes in a retail department store discharged for no apparent reason and resulted in water damage to merchandise in the amount of $9,148.87. Jones, Inc., the department store and plaintiff below, had contracted with W. A. Wiedebusch Plumbing and Heating Company, the defendant and third party plaintiff below, in 1968 to replace certain sprinkler heads throughout the store. Wiedebusch ordered the sprinkler heads from Emsweller Incorporated, one of two third party defendants below, and Emsweller also installed the new sprinkler heads in the store. Emsweller purchased the sprinkler heads directly from Norris Industries, the other third party defendant. The installation of the sprinkler heads was completed in October, 1968, but on January 9, 1969 one of the sprinkler heads discharged water causing damage to the merchandise and fixtures of the plaintiff Jones. Jones brought an action to recover the damages from Wiedebusch who filed a third party action against Emsweller and Norris. The jury returned a verdict for Wiedebusch only and the court entered final judgment in favor of Wiedebusch on April 15, 1972 and dismissed all claims against the third party defendants Emsweller and Norris against whom no verdict had been returned.
Jones then made a timely motion within ten days, in accordance with the provisions of Rule 50(b), R.C.P., to have the verdict and judgment entered thereon set aside and to have judgment entered in accordance with its motion for a directed verdict, or, in the alternative to have a new trial awarded in accordance with the provisions of Rule 59(b), R.C.P. This motion was served on Wiedebusch only and a hearing was held on the motion April 18, 1972, at which time the motion of Jones to set aside the verdict and enter judgment in its favor was overruled, but the motion to set aside the verdict of the jury and the judgment entered thereon and to award the plaintiff a new trial was granted. Wiedebusch, the defendant and third party plaintiff, then moved the court to set aside the judgment entered on April 15, 1972 dismissing the third party claim against the third party defendants, Emsweller and Norris, and reinstate them as third party defendants. The court directed counsel for Wiedebusch to notify counsel for Emsweller and Norris that if they had any objection to Wiedebusch's motion they should appear on May 8, 1972 at which time they could file objections and be heard. An order was prepared containing the court's action taken on April 18, 1972 but was not entered until May 9, 1972 which was after the May 8th hearing on Wiedebusch's motion to reinstate the third party defendants. As a result of the May 8th hearing another order was entered on May 9, 1972 in which Norris' objections to Wiedebusch's motion to reinstate the third party defendants were contained but Norris' objections were overruled by the court and Wiedebusch's motion to reinstate Norris and Emsweller was granted.
On April 27, 1972 Wiedebusch notified the attorneys for Norris and Emsweller by letter of the May 8th hearing on the motion, in accordance with the direction of the court on April 18, 1972. The letter referred to a copy of the order previously forwarded to them setting aside the verdict in favor of Wiedebusch and stating that the motion of Wiedebusch to set aside the judgment dismissing the third party defendants and to reinstate them as third party defendants would be heard on May 8, 1972. Norris Industries appealed the order of the Circuit Court of Marion County reinstating it as a third party defendant and the appeal was granted by this Court on December 18, 1972 and it was submitted for decision on arguments and briefs on behalf of the respective parties on October 3, 1973.
Emsweller did not file a petition for appeal from the order of the Circuit Court of Marion County, and the time for appeal having expired, the judgment of the circuit court reinstating it as a third party defendant is final.
It is the contention of Norris that the trial court erred in setting...
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