Marion County Court v. Ridge

• Court: U.S. Court of Appeals — Fourth Circuit
• Writing for the Court: WADDILL and PARKER, Circuit , and COCHRAN
• Citation: Marion County Court v. Ridge, 13 F.2d 969 (4th Cir. 1926)
• Decision Date: 08 June 1926
• Docket Number: No. 2477.,2477.
• Parties: MARION COUNTY COURT, W. VA., v. RIDGE et al.

13 F.2d 969 (1926)

MARION COUNTY COURT, W. VA., v. RIDGE et al.

No. 2477.

Circuit Court of Appeals, Fourth Circuit.

June 8, 1926.

M. W. Ogden, M. E. Morgan, and John W. Mason, Jr., all of Fairmont, W. Va., for plaintiff in error.

John J. Coniff, of Wheeling, W. Va., for defendants in error.

Before WADDILL and PARKER, Circuit Judges, and COCHRAN, District Judge.

PARKER, Circuit Judge.

Patrick Ridge and Mike Ridge, partners doing business as Ridge Bros., plaintiffs in the court below, obtained a default judgment for the sum of $20,090.11 against the defendant, county court of Marion county, W. Va., at the October term of the United States District Court at Wheeling, W. Va. The defendant, at the same term, made a motion to set aside the judgment and the verdict on which it was rendered; and from an order denying the motion this writ of error is prosecuted. The parties will be referred to in accordance with their respective positions in the court below.

This action was one of trespass on the case, in assumpsit, in which plaintiffs sought to recover $50,000 for losses alleged to have been sustained as a result of breach of contract by defendant, $50,000 for the value of machinery of plaintiffs, alleged to have been appropriated by defendant to its own use, and for $8,000 as balance due plaintiffs for road work performed under contract. Summons was issued October 8, and served October 15, 1920. The declaration was filed January 5, 1921. Thereafter no action whatever was taken in the cause until October 21, 1924, 3 years and 9 months later, when, upon the calling of the docket on the first day of the regular term at Wheeling, the defendant was called in open court, and the case was set for trial November 10th. On that date, November 10, 1924, the case was called for trial, and, the defendant being called and not appearing, a jury was impaneled, and found for plaintiffs, and assessed their damages at $20,090.11. Three days later, but during the same term, defendant appeared and moved that the verdict be set aside, and for a new trial, and an order was thereupon entered allowing defendant 20 days in which to file grounds in support of its motion. These grounds were duly set forth in an affidavit, which was filed within the time allowed, whereupon the court took the matter under advisement, and on August 28, 1925, signed the order denying the motion.

The affidavit filed shows that defendant had a meritorious defense to the action, and that the judgment was taken as the result of surprise, mistake, and excusable neglect on the part of defendant and its counsel, and is irregular, in that the declaration does not contain an averment, in accordance with the statute of West Virginia, that demand for the claim in suit had been presented to the defendant county court, and disallowed in whole or in part.

As to the defense, the affidavit avers that plaintiffs abandoned their contracts to construct roads for defendant; that defendant was obliged to take over the road work and complete the roads at considerable loss; and that the dispute between plaintiffs and defendant as to the loss sustained, as a result of the breach, had been compromised by the payment to defendant of the sum of $15,000 by the surety on the bonds accompanying the road contracts involved in the case.

With respect to surprise, mistake, and excusable neglect, on the part of defendant and its counsel, the affidavit alleges that the summons was served upon one Shaffer, who was president of the county court in 1920, but who went out of office in January, 1921; that the county attorney is the person having charge of litigation of this character against the defendant, and that a new county attorney was chosen on January 1, 1921, who had no knowledge of the fact that this action had been instituted until the latter part of that year; that, upon being informed that an action of some sort was pending against defendant in the federal court, the county attorney addressed a letter to the deputy clerk, making inquiry as to whether any such action were pending; and that he received a letter in reply, under date of December 14, 1921, from the clerk of the court at Wheeling, advising that the action was pending there, and giving the nature of the action, the amount demanded, and the date of the issuance of summons, but not advising that the declaration had been filed, that the answer had not been filed, or that defendant was in default. The position of defendant with respect to this is that the letter of the county attorney was notice that he was appearing in the case; that he was not apprised by the letter of the clerk that defendant was in default; that section 11 of the rules of practice of the District Court for the Northern District of West Virginia provides that any party desiring trial of a civil action shall give notice in writing to the adverse party or his counsel, and shall file same, together with proof or acknowledgment of service, in the clerk's office, at least 20 days before the term; and that he was justified in assuming that the case was at issue; and that he would be duly notified, according to rule, in advance of trial. Defendant also takes the position that section 13 of the rules of the court provides that cases which have been pending in court for more than a year without proceedings may be dismissed at the call of the docket, for want of prosecution, either at the request of a party or by the court of its own motion; and that, nearly 4 years having elapsed, defendant was justified in assuming that the case had been dismissed, or, at least, that the court would allow no action to be taken without notice against a public corporation upon which notice could be served without difficulty.

With respect to the sufficiency of the declaration, it appears that there is no allegation whatever that the claims sued on were ever presented to the defendant county court, as required by statute, and the only allegation which plaintiffs contend to be a compliance with the statute is a general averment that plaintiffs suffered damage to the amount of $150,000 (which is not the total of the claims in suit), coupled with the formal allegations of a declaration in assumpsit of demand and refusal to pay this amount.

While a federal court has no power under state statutes to set aside judgments after the term at which they are rendered, it has complete control over them, and may set them aside during the term. Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797. And, where a motion to set aside is made during the term, and held open for further consideration, the court has power to act upon it after the term has expired. Walker v. Moser (C. C. A. 8th) 117 F. 230; Goddard v. Ordway, 101 U. S. 745, 751, 25 L. Ed. 1040. As the motion here was made during the term and held for further consideration, there is no doubt of the power of the court to act upon it just as though final disposition had been made during the term.

The power of the court to act upon the motion being established, the practice to be followed is that prescribed by the statute of the state where the court is...