McDaniel v. Romano, No. 13167

CourtSupreme Court of West Virginia
Writing for the CourtBERRY; HAYMOND
Decision Date21 June 1972
PartiesKenneth Lee McDANIEL, An Infant, etc., et al. v. Anthony ROMANO.
Docket NumberNo. 13167

Page 8

190 S.E.2d 8
155 W.Va. 875
Kenneth Lee McDANIEL, An Infant, etc., et al.
v.
Anthony ROMANO.
No. 13167.
Supreme Court of Appeals of West Virginia.
Submitted April 25, 1972.
Decided June 21, 1972.

Page 9

Syllabus by the Court

1. Findings of fact by a trial court without a jury will not be set aside unless they are clearly wrong.

2. Although courts should not set aside default judgments or dismissals without good cause, it is the policy of the law to favor the trial of all cases on their merits.

3. 'A motion to vacate a default judgment is addressed to the sound discretion of the court and the court's ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion.' Pt. 3, syllabus, Intercity Realty Company v. Gibson, W.Va. (175 S.E.2d 452) (decided by this Court July 7, 1970).

Maruka & Sansalone, Frank Sansalone, Fairmont, for appellants.

A. Blake Billingslea, Fairmont, John S. Sibray, Charleston, for appellee.

Page 10

[155 W.Va. 876] BERRY, Judge:

This is an appeal by Kenneth Lee McDaniel, an infant who sues by his next friend, Ray McDaniel, and Ray McDaniel, hereinafter referred to as plaintiffs, from an order of the Circuit Court of Marion County entered June 11, 1971 which sustained the motion of the defendant, Anthony Romano, hereinafter referred to as defendant, under Rule 60(b)(1) of the Rules of Civil Procedure, set aside and vacated the default judgment entered against the defendant on October 31, 1970, the judgment for damages entered against defendant on November 18, 1970, and awarded a new trial to the defendant on all the issues. The plaintiffs' appeal was granted by this Court on December 6, 1971 and plaintiffs' motion for leave to move to reverse was granted on January 13, 1972. The case was submitted for decision on the briefs and arguments of the parties on April 25, 1972.

The original complaint in this case was filed on February 17, 1969 against Melvin Leroy Bolyard. On October 8, 1970 the plaintiffs filed an amended complaint in the Circuit Court of Marion County Joining Anthony Romano and his wife as defendants and Anthony Romano was personally served later that same day. The defendant failed to file an answer or other defense within twenty days as required by the Rules of Civil Procedure. On October 31, 1970 the Circuit Court, upon the plaintiffs' affidavits, in accordance with Rule 55(b) (2), R.C.P., granted plaintiffs' motion for judgment by default. On November 17, 1970 the jury returned verdicts on writs of inquiry for damages in favor of Kenneth Lee McDaniel for $75,000 and in favor of Ray McDaniel for $1,034.52. Judgment was entered on these verdicts by the Circuit Court on November 18, 1970.

On November 27, 1970 defendant, represented by attorney Anthony J. Julian, served upon plaintiffs' attorney defendant's 'Motion to Stay Execution and Set Aside a Verdict' and 'Affidavit of Anthony Romano'. The motion alleged that the defendant had a bona fide defense to [155 W.Va. 877] plaintiffs' claims and also alleged certain procedural irregularities in the jury's verdicts. On December 10, 1970 the Court overruled defendant's motion.

On April 13, 1971 defendant, represented by another attorney, A. Blake Billingslea, moved the court, under the provisions of Rule 60(b), R.C.P., to relieve the defendant from the default judgment of October 31, 1970 and the judgments entered on November 18, 1970 against defendant for $75,000 and $1,034.52 and to set aside the judgments and award the defendant a trial on the merits. Defendant filed an affidavit dated March 26, 1971 in support of the motion, which stated that after the defendant was served with the plaintiffs' complaint, the defendant took the papers served upon him and conferred with an attorney, Anthony J. Julian, and retained Mr. Julian for the purpose of filing an answer and representing him in this case. The defendant stated he received no further communication from Mr. Julian until after November 18, 1970 at which time defendant read in the newspapers of the judgments rendered against him and immediately contacted Mr. Julian who subsequently filed a motion to set aside the verdict on November 27, which was overruled.

A hearing on the motion, under Rule 60(b), R.C.P., was held on May 17, 1971 and again on June 9, 1971. It appears from the testimony that after the defendant was served with the summons and complaint on or about October 8, 1970 he consulted with attorney Julian the next day. Although the defendant left the summons and complaint served on him with Mr. Julian, Mr. Julian stated that he advised defendant he would not represent him unless he tendered $300. Later the same day, Mr. Julian stated that he advised the defendant by telephone that he would accept $200. The defendant never tendered the money and no answer was filed on his behalf within twenty days...

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54 practice notes
  • Moore v. Goode, No. 17299
    • United States
    • Supreme Court of West Virginia
    • November 10, 1988
    ...of fact by a trial court without a jury will not be set aside unless they are clearly wrong." Syllabus Point 1, McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 2. "Our legislature has manifested its intent to abrogate common law prohibitions against inheritance by [children born out of wedl......
  • Mitchem v. Melton, No. 15136
    • United States
    • Supreme Court of West Virginia
    • May 12, 1981
    ...that the general rule was to the contrary. An appeal was also permitted where a default judgment was set aside in McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 (1972), [167 W.Va. 31] based on the earlier case of Clark v. Lee, 76 W.Va. 144, 85 S.E. 64 Page 901 In Parsons v. Consolidated Ga......
  • Cordell v. Jarrett, No. 15389
    • United States
    • Supreme Court of West Virginia
    • December 9, 1982
    ...Syllabus Point 2, Parsons v. Consolidated Gas Supply Corp., 163 W.Va. 464, 256 S.E.2d 758 (1979); Syllabus Point 2, McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 Parsons, supra at Syllabus Point 3, instructs a trial court to consider whether there will be prejudice to a nondefaulting part......
  • Drumheller v. Fillinger, No. 11–0681.
    • United States
    • Supreme Court of West Virginia
    • October 25, 2012
    ...127 (1985) (same); Barker v. Benefit Trust Life Ins. Co., 174 W.Va. 187, 189, 324 S.E.2d 148, 150 (1984) (same); McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 (1972) (same); Bennett v. General Accident Fire & Life Assurance Corp., Ltd., 149 W.Va. 92, 138 S.E.2d 719 (1964) (same); Gainer v......
  • Request a trial to view additional results
54 cases
  • Moore v. Goode, No. 17299
    • United States
    • Supreme Court of West Virginia
    • November 10, 1988
    ...of fact by a trial court without a jury will not be set aside unless they are clearly wrong." Syllabus Point 1, McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 2. "Our legislature has manifested its intent to abrogate common law prohibitions against inheritance by [children born out of wedl......
  • Mitchem v. Melton, No. 15136
    • United States
    • Supreme Court of West Virginia
    • May 12, 1981
    ...that the general rule was to the contrary. An appeal was also permitted where a default judgment was set aside in McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 (1972), [167 W.Va. 31] based on the earlier case of Clark v. Lee, 76 W.Va. 144, 85 S.E. 64 Page 901 In Parsons v. Consolidated Ga......
  • Cordell v. Jarrett, No. 15389
    • United States
    • Supreme Court of West Virginia
    • December 9, 1982
    ...Syllabus Point 2, Parsons v. Consolidated Gas Supply Corp., 163 W.Va. 464, 256 S.E.2d 758 (1979); Syllabus Point 2, McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 Parsons, supra at Syllabus Point 3, instructs a trial court to consider whether there will be prejudice to a nondefaulting part......
  • Drumheller v. Fillinger, No. 11–0681.
    • United States
    • Supreme Court of West Virginia
    • October 25, 2012
    ...127 (1985) (same); Barker v. Benefit Trust Life Ins. Co., 174 W.Va. 187, 189, 324 S.E.2d 148, 150 (1984) (same); McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 (1972) (same); Bennett v. General Accident Fire & Life Assurance Corp., Ltd., 149 W.Va. 92, 138 S.E.2d 719 (1964) (same); Gainer v......
  • Request a trial to view additional results

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