Mitch v. United Mine Workers of America
| Decision Date | 05 October 1920 |
| Docket Number | 3981. |
| Citation | 104 S.E. 292,87 W.Va. 119 |
| Parties | MITCH v. UNITED MINE WORKERS OF AMERICA. |
| Court | West Virginia Supreme Court |
Submitted September 28, 1920.
Syllabus by the Court.
A plea or affidavit denying a partnership or the corporate existence of defendant filed in a suit pending in a justice's court is not a plea in abatement, but a defensive plea, and may be interposed at any time before trial.
Prior to the enactment of section 41 of chapter 125 (sec. 4795) of the Code in 1882, plaintiff was required under the general issue to prove the fact of the existence of the corporation as a condition of recovery in the action.
Appearance by defendant before a justice on the return day of the writ and moving a continuance to a later day, on which later day appearance is again made and plea and affidavit filed denying the corporate existence of defendant, will not estop defendant to make the defense interposed by such plea and affidavit.
Nor will an appeal by such defendant, from the judgment of a justice to the circuit court, where a trial is had de novo on the pleadings before the justice, estop defendant from denying the existence of the corporation and making the defense interposed by the plea or affidavit putting the same in issue.
On the trial of the issue on such plea or affidavit, such appearances as are recited in the foregoing points and the appeal bond not signed or sealed by defendant with its corporate seal, together will not constitute prima facie evidence of corporate existence.
Where in such suit none of the members of a voluntary association are impleaded, it is not error to dismiss the action for want of evidence of the corporate existence of the defendant. Plaintiff is not thereby concluded by the judgment from bringing a new suit and impleading the proper parties.
Error to Circuit Court, Taylor County.
Action in justice court by William Mitch against the United Mine Workers of America. Judgment for plaintiff in the justice court, and defendant was allowed an appeal to the circuit court, and from its judgment, after a trial de novo dismissing the action and awarding defendant a judgment for costs, plaintiff brings error. Affirmed.
Warder & Robinson, of Grafton, for plaintiff in error.
John G St. Clair, of Grafton, for defendtiff in error.
In an action begun by plaintiff against defendant as a corporation the summons, according to the return of the officer, was attempted to be executed by delivery of a copy thereof to Dewey Kelley, president of the local union at Rosemont in Taylor county, W.Va., February 27, 1919.
On the return day, March 4, 1919, the justice's docket shows that plaintiff appeared in person and by attorney, and also appearance by defendant in person and by J. Gran St. Clair, their attorney, and that a continuance was had on affidavit of defendant and agreement of the parties, to March 12, 1919; that on March 12, 1919, plaintiff appeared in person and by attorney, and that defendant also appeared in person of Dewey Kelley, its president of the local union, and by J. Gran St. Clair, its attorney, and filed a plea and affidavit that defendant was not a corporation, and moved dismissal of the case, which motion was overruled; that thereupon defendant by its attorney pleaded that defendant did not owe defendant anything, and moved the justice to quash the summons and return, which motion was overruled; that a trial was had on the evidence of plaintiff, the defendant offering no defense, and judgment was given thereon for plaintiff for one hundred and fifty dollars with interest and costs. From this judgment an appeal was allowed defendant to the circuit court.
In the circuit court defendant interposed the same pleas as before the justice, including the plea and affidavit denying the existence of such corporation, and renewed the motion to quash the summons and the return of the officer thereon, which motion was overruled; and plaintiff's motion to reject defendant's plea denying the corporation was also overruled.
On the trial before the jury plaintiff moved the court to allow him to prove the case on the merits before the same jury, at the same time the case was being tried on defendant's plea and affidavit denying the corporate existence of defendant, which motion on objection by defendant was overruled, and the trial was limited to the issue on the plea and affidavit. At the conclusion of plaintiff's evidence, the court on motion of defendant struck out the evidence and directed a verdict for defendant; and a verdict was rendered accordingly, which plaintiff moved the court to set aside and grant him a new trial; and he also rene wed his motion to be allowed to prove his case on its merits non obstante veredicto, both of which motions were overruled. Thereupon, on motion of defendant, resisted by plaintiff, the court dismissed plaintiff's action and awarded defendant judgment for costs against him.
Several points of error are urged on behalf of plaintiff for reversal. The first assumes that defendant's plea denying the corporate existence of defendant was a plea in abatement and that it came too late, wherefore, he contends the court below should have sustained his objection thereto as well as his motion to strike the plea from the record, and that defendant was estopped to deny the existence of the corporation. The statute, section 41 of chapter 125 (sec. 4795) of the Code, allows the defense of no partnership or the non-existence of a corporation to be made by special plea or simply by affidavit denying the same. Either method will put the fact in issue, and the plaintiff cannot then proceed on the merits without proof of the fact of such partnership or the existence of such corporation. The statute imposes no time limit on the defendant within which he is required to file his plea or affidavit, either in the justice's court or in the circuit court on appeal. On appeal from the judgments of justices of the peace the trial is de novo, and may be either on the pleadings there filed or upon new pleadings made up in the appellate court. Cook v. Continental Casualty Co., 82 W.Va. 250, 95 S.E....
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