Pelley v. Hibner

• Decision Date: 20 February 1923
• Docket Number: No. 4177.,4177.
• Citation: 93 W.Va. 169
• Parties: P. A. Pelley et al, v. E. W. Hibner.
• Court: West Virginia Supreme Court

93 W.Va. 169

P. A. Pelley et al,

v.E. W. Hibner.

No. 4177

Supreme Court of Appeals of West Virginia.

Submitted January 23, 1923.

Decided February 20, 1923.

1. Judgment Motion FoR Judgment-Notice.

A notice of motion for judgment, under sec. 6, Chap. 121, Code, must indicate with reasonable certainty the nature or basis of the demand or obligation which it is proposed to reduce to judgment, and that the same is due and owing by the defendant to the plaintiff; and if it does not, a demurrer thereto should be sustained with leave to amend.

Error to Circuit Court, Cabell County. Action by F. A. Pelley and others against E. W. Hibner. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

Deegan Bowman & Taylor, for plaintiff in error. Jean F. Smith, for defendant in error.

Litz, Judge:

This writ of error was granted defendant to a judgment entered against him in the Circuit Court of Cabell County in favor of plaintiffs, in the sum of $1820.00, on notice for judgment by motion. The notice is as follows:

"STATE OF WEST VIRGINIA, COUNTY OF CABELL, SS:

"IN THE CIRCUIT COURT THEREOF"To E. W. Hibner:

"You are hereby notified that we will move the Circuit Court of Cabell County, West Virginia, on the 6th day of January, of 1920, between the hours of nine a. m. and five p. m., of the next term thereof for judgment against you for the sum of $1850.00, with interest thereon from the 1st day of September 1919 to the 6th day of January 1920 and the cost of such motions. The said sum being the balance due and unpaid on the business of the Dixie Automobile House, at 312 Eleventh Street, City of Huntington, for the business, lease and good will. The purchasing price being $2350.00 with a credit of a payment of $500.00 leaving a balance of $1850.00, with interest from the 1st day of September 1919 to the 6th day of January 1920, at which time and place you may attend and show cause against such motions, if any you can. Please take due notice thereof and govern yourself accordingly under the pain and penalty of the law.

'' Very respectfully, F. A. PELLEY and EVALYN M. PELLEY, partners trading as Dixie Automobile House."

"STATE OF WEST VIRGINIA COUNTY OF CABELL, SS:

"Mrs. Evalyn M. Pelley appears before me, Jean F. Smith a Notary Public in and for the aforesaid County and State and first being duly sworn, deposes and says that there is a balance due unto herself and F. A. Pelley of $1850.00, with interest from the first day of September 1919 to the 6th day of January, 1920, being the sum of $1878.35 and that sum is just and due and unpaid, and that there is no counter claims or offsets against same, and the affiant believes that they are justly entitled to recover the sum of $1878.35.

"MRS. EVALYN M. PELLEY.

"Taken, sworn to and subscribed to before me this the 5th day of December, 1919.. My commission expires on the 29th day of December 1919.

"JEAN F. SMITH, Notary Public."

The demurrer of the defendant to the notice, as being insufficient in law, was overruled. As the evidence...