New River Mineral Co. v. Roanoke Coal & Coke Co.
| Decision Date | 06 July 1901 |
| Docket Number | 399. |
| Citation | 110 F. 343 |
| Parties | NEW RIVER MINERAL CO. v. ROANOKE COAL & COKE CO. |
| Court | U.S. Court of Appeals — Fourth Circuit |
This case comes up by writ of error to the circuit court of the United States for the Western district of Virginia. Under the law prevailing in Virginia (section 3211, Code 1887), amended by act of assembly (Acts 1895-96, p. 140), any person entitled to recover money by action on any contract may, on motion before any court which would have jurisdiction in an action otherwise than under section 3215, obtain judgment for such money after 15 days' notice, which notice shall be returned to the clerk's office of such court within 5 days after the service of the same, and after such 15 days' notice the motion shall be docketed. This is a summary mode of obtaining trial; the notice playing the part both of the writ and declaration. The notice must be accompanied by a copy of the cause of action. Pursuing this mode of relief, the Roanoke Coal & Coke Company, defendant in error here, issued a written notice to the New River Mineral Company, plaintiff in error here, that on the first day of the next term of the court of Wythe county, Va., being 13th February, 1899, it would move for judgment against it for the sum of $5,665.31, with interest as stated in said notice. A copy of the account was annexed to the notice. It was dated 10th January, 1899, and there is indorsed upon it a certificate of the sheriff of Wythe county, dated 12th January, 1900, that it was served on an agent of defendant 12th January, 1900. On the same day, 10th January, 1900, a writ of attachment was issued out of the clerk's office of Wythe county, at the suit of the Roanoke Coal & Coke Company, attaching a large amount of property of the last-named company, and served by the same sheriff, who made due return thereof on the same 12th January, 1900. Upon filing the proper petition and bond, this cause was removed into the circuit court of the United States for the Western district of Virginia. As soon as the cause was docketed in this court, the defendant below moved the court to dismiss the cause, because the record does not show that the notice was returned to the clerk's office of the circuit court of Wythe county five days before the February term, 1899. Thereupon, the court ordered that the clerk of the court of said county do forthwith certify to the court when said notice was returned to his office in relation to said return. The clerk in answer to that order, and as to the time of filing the notice on the Roanoke Coal & Coke Company against the New River Mineral Company, says: ' The court refused the motion. The answer was filed, issue joined, and verdict had before a jury for plaintiff. The defendant moved for a new trial, which was refused. Judgment was entered on the verdict, leave was given to defendant to get a writ of error, and the cause is here on the assignments of error. These are two in number: (1) Because the court erred in refusing to quash and dismiss the notice, because the same had not been returned to the clerk's office of the circuit court of Wythe county, as provided by section 3211 of the Code of Virginia, as amended by acts of assembly of 1...
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