Marstiller v. Ward.
| Decision Date | 29 November 1902 |
| Citation | 52 W.Va. 74 |
| Parties | Marstiller v. Ward. |
| Court | West Virginia Supreme Court |
Under section 46, chapter 125, Code of 1899, an office judg-merit in an action on contract, where there is no order for in-quiry of damages, becomes final, so as to bar a defence, on the last day of the next term of a circuit court after the entry of such office judgment. (p. 76).
In an action on contract wherein there is no order for an inquiry of damages, if a defendant does not plead to issue at the next term after office judgment, he can not thereafter do so, but the plaintiff may at any time demand judgment upon his affidavit before or afterwards filed, such as is required by section 46, chapter 125, Code 1899, or may prove his case for judgment (p. 77),
The affidavit of the amount which the plaintiff is entitled to recover specified in section 46, of chapter 125, Code 1899, need not necessarily be filed at rules or at the first term after entry of the office judgment. It may be filed later. (p. 79).
In an action wherein there is an order for an inquiry of damages, on contract or tort, a plea may be filed at the first term after office judgment, or at a later term. (p. 78).
Contracts Judgments Affidavits.
The words, "for the recovery of money arising out of contract," in section 46, chapter 125, Code of 1899, include all actions in form ex contractu, but not those ex delicto, and thus includes an action or scire facias upon a judgment, and therefore the plaintiff may, in such action or scire facias upon a judgment, file the affidavit of the amount due him prescribed in that section. (p. 82).
6. Office Judgment Mandamus.
When an affidavit is filed of the amount which the plaintiff is entitled to recover, prescribed in section 46, chapter 125, Code of 1899, in a case wherein there is an office judgment, but no order for an inquiry of damages, and the defendant fails to plead to issue at the next term after such office judgment, it is the duty of the court to render judgment for the plaintiff upon such affidavit, and such duty being ministerial, mandamus lies to enforce its performance. (p. 84).
7. Judgment Insufficient Affidavit.
An affidavit under section 46, chapter 125, Code 1899, made by a plaintiff as to the amount due him, which says that there is "due" him a certain sum, instead of saying that there is "due and unpaid," is not a sufficient affidavit to call for judgment under that section, by reason of the absence of the words "and unpaid." (p. 84).
Petition for mandamus by Lee Marstiller as administrator of William M. Phares, deceased, to John Homer Holt, as Judge, and S. W. Ward.
Writ Refused.
Statement.
In 1877, in the county court of Randolph County, in an action of debt, William M. Phares recovered a judgment against S. W. Ward for money. In March, 1901, Lee Marstiller, as administrator of Phares, brought an action of debt upon said judgment against Wa rd in the circuit court of Kandolph County, and the defendant not appearing at either the April or May rules, a judgment by default was entered against him; and at the May term of the court the case was on the docket, but nothing was done in the case. So with the October term, 1901. At the January term, 1902, the defendant tendered four pleas, which were objected to by the plaintiff as insufficient and as coming too late, and the court took time to consider them. At the May term, 1.902, the defendant tendered four pleas, and moved the court to set aside the judgment by default entered at rules in the office, and the court, over the plaintiff's objection, set aside the office judgment and allowed the pleas to be filed, and refused to enter judgment for the plaintiff upon his affidavit then filed fixing the amount which he claimed to be entitled to recover. The case stood in this condition when Marstiller obtained from a Judge of this Court a rule against John Homer Holt, the judge of the circuit court, to show cause why a mandamus should not go against him to compel him to enter judgment in said action of debt in favor of the plaintiff for the sum stated in his affidavit, filed at May term, 1902.
W. B. Maxwell, for petitioner. J. L. Wamsley, for respondent.
The plaintiff did not file an affidavit of the amount which he was entitled to recover either at rules or at the three next succeeding terms, and not until the fourth term, and after Ward had tendered his plea.
Was Ward entitled to set aside the office judgment on pleas tendered at the third term, and presumably the same retendered at the fourth term after the office judgment, or were the pleas too late? Was the plaintiff entitled to have those pleas disregarded as filed too late, and have judgment entered in his favor upon his affidavit? The Code of 1899, chapter 125, section 44, provides that if a defendant fails to appear to defend the action at two successive rules, judgment shall be entered against him, and an order made to ascertain the amount of damages, where such order is proper; and. section 45 says that there need be no inquiry of damages in any action to recover a debt on a bond or other writing for the payment of money, or on a bill of exchange or negotiable note, or in an action of debt or scire facias upon a judgment or recognizance. Section 46 has the broad clause, "Every judgment entered in the clerk's office in a case wherein there is no order for an inquiry of damages, and every non-suit or dismission entered therein, shall, if not previously set aside, become a final judgment on the last day of the next succeeding term of the court. Now. if we take this clause of the statute alone, it is clear that on the last day of the May term, 1901, the office judgment had the quality of finality, because Ward failed to defend at that term. Here we have the explicit enactment that the office judgment shall have the character of finality, as against any defence, after the last day-of the term, and further have the clause, "if not previously set aside," showing chat the defendant cannot, after that last day, set it aside. These provisions mean something. They mean that the defendant has had ample time to appear, two rules and one term, and by his default, he has confessed the demand, and it only remains for the court to record judgment, if certain other things which are required of the plaintiff by other provisions of section 46 are clone by him, that is, if a certain affidavit is filed or proof of the demand is furnished. But those things are required of the plaintiff; the statute does not enable the defendant, after that day, to make any defence. This would be so were we without other provision in the statute; for, as we have seen, the clauses mentioned limit the right to set aside the office judgment to the last day of the next term. But this is not the only language of the Code limiting the right of defence against the office judgment; for section 47 says, "If a defendant against whom a judgment is entered in the office, whether an order for an inquiry of damages has been made or not, shall, before the end of the term at which it becomes final, appear and plead to issue, and shall in the cases mentioned in the next preceding section in which an affidavit is required file such affidavit with his plea, the judgment shall be set aside." Here we have when read with section 46 a very plain re-statement of the provision contained in section 46 of the finality of the office judgment on the last day of the term, as well as a re-statement of the limitation to that day of defence against it. But notwithstanding the right of the defendant's defence exists no longer than the last day of the term, yet the legislature, as a precaution against unjust judgment merely by reason of default of the defendant, requires in section 46, that before the plaintiff shall have fruition of his office judgment in a perfect judgment recorded in term, capable of being enforced by execution, he must either file his affidavit that a cer- tain sum is clue him after abating all payments, credits and sets-off, or furnish other proof of his demand. His declaration, on which the office judgment rests, has not given credits, and the statute demands of the plaintiff their allowance under oath. It requires thus much, notwithstanding he has his office judgment; this is required of the plaintiff; but wTe find no intimation of any right of defence after the last day of the term. No proceeding in.the case is spoken of as afterwards to occur save only to fix the amount of recovery; the right to recover something has been settled, has been confessed. The defendant nil elicit. What hardship is this? The defendant has had his day. The plaintiff might reasonably wait, before filing an affidavit, to see if a defence would be made.
But counsel argues that in order to bar a plea the plaintiff must file his affidavit of the amount due him with his declaration at rules before a plea is offered. The statute does not say so. We have seen how a defence is limited to the last day of the term. That alone is enough to bar a plea thereafter. The statute makes full provision and does not accord the defendant a defence after that date. The only question after that date is what the plaintiff must do, and when he must do it. I answer that to get a perfect judgment recorded in term he must either file his affidavit, or prove his case, and there is no limit imposed by the Code upon his right to perfect his judgment. This Court has held that such affidavit need not necessarily be filed with the declaration at rules, but "may be filed at any time before judgment is entered." Quesenberry v. People's Building Association, 44 W. Va. 512. As the defendant's day of grace has passed, what matters it to him when the plaintiff shall carry into actual judgment the defendant's confession by...
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