Landsman-hirscheimer Co v. Radwan
| Decision Date | 21 March 1922 |
| Docket Number | (No. 4139.) |
| Parties | LANDSMAN-HIRSCHEIMER CO. v. RADWAN. |
| Court | West Virginia Supreme Court |
(Syllabus by the Court.)
Error to Circuit Court, Wyoming County.
Action by the Landsman-Hirscheimer Company against J. A. Radvvan. Judgment for plaintiff, and the defendant brings error. Reversed and remanded.
Grover C. Worrell, of Mullens, for plaintiff in error.
POFFENBARGER, P. The judgment on this writ of error, taken for $1,000, on an open account for merchandise sold and delivered, under the provisions of section 6 of chapter 121 (sec. 4726) of the Code, by motion after notice, is complained of on the ground of alleged failure to comply with essential requirements of said statute and other provisions of the law.
Although a copy of the itemized account seems to have been "served upon the defendant" with the notice, and in sufficient time, it was not accompanied by the affidavit required by the statute, for the affidavit bears a date four days later than that of the service of the notice. There is no return of service of the affidavit. As the statute, being in derogation of the common law, falls under the rule of strict construction (Bank v. Thomas, 75 W. Va. 321, S3 S. E. 9S5), there must be an affidavit of the kind required, bearing a date not later than that of service of the notice, and also a return of service of the affidavit, as well as one of service of the notice. The affidavit is defective and would not suffice for the purposes prescribed by the statute, if it had been made and properly served in time. It makes no reference to the notice. The plaintiff is required to swear he verily believes there is due and unpaid a certain amount "upon the demand or demands stated in the notice." Omission of reference in the affidavit, to the demand or demands sued for, as shown by the declaration or notice, is fatal. Kingman Mills v. Furner, 109 S. E. 600, not yet officially reported. There are no doubt other defects in the affidavit, which need not be noticed.
The defendant's demurrer to the notice and motion to quash it having been overruled, he took an exception, but tendered no plea. Upon the execution of the writ of inquiry, he appeared and objected to the filing of the affidavit on the ground of insufficiency, but the court overruled his objection, accepted the affidavit, treated it as sufficient evidence to prove the amount of the plaintiff's demand, and rendered the judgment complained of. The defendant, having excepted to the...
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Stephenson v. Cavendish
...2, being in derogation of the common law, must be strictly construed. Kirk v. Webb, 97 W.Va. 176, 124 S.E. 501; Landsman-Hirscheimer Co. v. Radwan, 90 W.Va. 590, 111 S.E. 507; State v. Blazovitch, 88 W.Va. 612, 614, 107 S.E. 291: Carter v. Reserve Gas Co., 84 W.Va. 741, 100 S.E. 738; Bank o......
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Mountain State Water Co. v. Town Of Kingwood, (CC 604)
...the indebtedness was based. A similar state of facts, as disclosed by the printed record, is presented in Landsman-Hirscheimer Company v. Radwan, 90 W. Va. 590, 111 S. E. 507. However, in the latter case, the judgment in plaintiff's favor was reversed because the affidavit upon which it was......
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Mountain State Water Co. v. Town of Kingwood
... ... A similar ... state of facts, as disclosed by the printed record, is ... presented in Landsman-Hirscheimer Company v. Redwan, ... 90 W.Va. 590, 111 S.E. 507. However, in the latter case, the ... judgment in plaintiff's favor was reversed because the ... ...
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