Matheny v. Greider
| Decision Date | 22 December 1934 |
| Docket Number | 507. |
| Citation | 177 S.E. 769,115 W.Va. 763 |
| Parties | MATHENY v. GREIDER et al. |
| Court | West Virginia Supreme Court |
Submitted November 14, 1934.
Syllabus by the Court.
1. The filing of a plea of the general issue is tantamount to demanding trial of the action by jury.
2. When a trial by jury has been demanded in an action involving more than $20, the impaneling of a jury to try the issue is a jurisdictional requirement, and a judgment rendered without complying with it is void.
Case certified from Circuit Court, Wood County.
Suit by W. V. Matheny against Eva B. Greider and others. A demurrer to the answer was overruled, and the ruling certified for review.
Affirmed.
Russell Hiteshew, Adams & Hill, of Parkersburg, for plaintiff.
McDougle & Hoff, of Parkersburg, for defendant.
The circuit court of Wood county certifies its holding overruling a demurrer to the answer filed by defendants in a judgment lien creditors' suit instituted by W. V. Matheny against Eva B. Greider and others.
The answer states, in substance, that the judgment set up in the bill of complaint, for the satisfaction of which the suit is brought to subject the land of Eva B. Greider, was rendered in the circuit court of Harrison county on May 9, 1922, in an action of debt in which W. V. Matheny was the plaintiff and G. B. Greider and Eva B. Greider were the defendants. It is alleged that the defendants had appeared in the action of debt and had filed their counter affidavit and their general issue plea. According to the averments of the answer, the original process in the action of debt was issued on the 8th day of March, 1920, and proceedings in that action were enjoined at the suit of the defendants therein named. It is averred that the injunction was dissolved on the 9th day of May, 1922, and that on that day the plaintiff in the debt action had it called for trial and proceeded to take judgment against the defendants therein without impaneling a jury. The answer takes the position that the judgment rendered in the circuit court of Harrison county against the defendants in the action of debt is entirely void, and is therefore subject to collateral attack in this proceeding. Plaintiffs contend that the failure to submit the issue in the debt action to a jury renders the judgment therein only voidable for error and hence not subject to attack in this cause.
Section 13, art. 3, of our Constitution, gives the absolute right to trial by jury...
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