Knox v. Horner
| Decision Date | 24 October 1905 |
| Citation | 51 S.E. 979,58 W.Va. 136 |
| Parties | KNOX v. HORNER. |
| Court | West Virginia Supreme Court |
Submitted September 8, 1905.
Syllabus by the Court.
A notice of a motion for judgment for money due on contract under the provisions of section 6 of chapter 121 of the Code of 1899, need not be returned to the clerk's office of the court in which the motion is to be made 20 days before the commencement of the term at which the motion is to be heard.
Such notice must be filed in such clerk's office before the commencement of such term, so that it may be docketed under the requirement of section 1 of chapter 131 of said Code else the right to have the motion heard at such term is not acquired; but the length of time between such filing and the commencement of the term is not prescribed.
Error from Circuit Court, Harrison County.
Action by John M. Knox against Vance L. Horner. Judgment for defendant, and plaintiff brings error. Reversed.
Sperry & Sperry, for plaintiff in error.
Harvey W. Harmer, for defendant in error.
The circuit court of Harrison county having quashed a notice given by John M. Knox to Vance L. Horner of a motion for judgment on promissory notes, and dismissed his proceeding on said notice, which was given under section 6 of chapter 121 of the Code of 1899, said Knox has brought the case here on a writ of error.
The court certifies that the notice was served on the defendant Horner, on the 3d day of June, 1905, informing him that the motion for judgment would be made on the 3d day of July 1905, and was received by the clerk of the court and filed in his office on the 6th day of June, 1905, 7 days before the commencement of the term, and more than 20 days prior to the date specified in it as the time for moving the court for judgment. In the opinion of the court the proceeding was defective in this: that the notice had not been filed in the clerk's office 20 days or more before the first day of the term at which the motion was to be heard. The statute provides that upon certain demands judgment may be taken on motion after 30 days' notice thereof, and the return of the notice to the clerk's office of the court 20 days before the motion is heard. It will be observed that the time fixed in this notice for the hearing of the motion was not the first day of the term, but a later day within the term. This seems not to be regarded as important; the sole contention being that the notice should have been returned to the clerk's office at least 20 days before the first day of the term and docketed under the provision made by section 1 of chapter 131 of the Code of 1899.
The basis of this contention is found in the syllabus of Hale v. Chamberlain, 13 Grat. 658, reading as follows "In a proceeding under Code, p. 640, c. 167, § 5, to recover money due upon contract, by notice, the notice must be returned 40 days before the commencement of the term, and put upon the docket of the court, or it cannot be tried at that term." The statute referred to in that case is exactly like section 6 of chapter 121 of our Code, except as to the length of time required for service of the notice and return thereof to the clerk's office before the hearing of the motion. An examination and analysis of the opinion in that case shows that the defect in the proceeding was the giving of the notice after the commencement of the term at which the motion was to be heard, in consequence of which the clerk had had no opportunity to docket it under the first section of chapter 177 of the Code of Virginia of 1860, requiring the clerk to make out, before every term of court, a docket of the cases pending, and carried with it no worse consequence to the plaintiff than inability to demand a trial at the term to which the notice had been given. The court did not quash the notice and dismiss the action. This clearly appears from the conclusion and judgment of the court, stated by Allen, P., as follows: ...
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