Peoples State Bank Of Crown Point v. Jeffries.

• Decision Date: 08 September 1925
• Docket Number: (No. 5154.)
• Citation: 99 W.Va. 399
• Court: West Virginia Supreme Court
• Parties: Peoples State Bank of Crown Point, Indiana, v. ThomasE. Jeffries et al.

99 W.Va. 399

Peoples State Bank of Crown Point, Indiana,

v.Thomas E. Jeffries et al.

(No. 5154.)

Supreme Court of Appeals of West Virginia.

Submitted February 17, 1925.

Decided September 8, 1925.

1. Judgment In the Notice of Motion for Judgment on Note, Affirmative Allegation of Parties Thereto is Unnecessary, if Such Facts Appear with Reasonable Certainty From Entire Notice.

In a notice of motion for judgment on a note, it is not necessary to allege affirmatively the parties thereto, when these facts appear with reasonable certainty from the entire notice, (p. 405.),

2. SAME Affidavit May be Used to Supplement Notice of Motion for Judgment on Note; if Non-Payment of Note is Averred in Affidavit, Failure to Allege Non-Payment in Notice of Motion for Judgment on Note is Not Mate-rial.

The affidavit may be used to supplement the notice. And where non-payment is averred in the affidavit, failure to allege non-payment in the notice is not material, (p. 406.)

3. Contracts Contract to be Interpreted by Laws of State in Which it Was Made and to be Performed; Laws Subsisting Where Contract Made and to be Performed Are Part Thereof.

Points 1 and 2 Refining Co. v. Grocery Co., 94 W. Va. 504, approved and applied, (p. 406.)

Error to Circuit Court, Cabell County.

Motion for judgment on a note, by the People's State Bank of Crown Point, Indiana, against Thomas E. Jeffries and another. Judgment for plaintiff, and defendants bring error.

Affirmed.

Connor Hall, for plaintiff in error.

T. W. Peyton and C. W. Bixby, for defendants in error. Hatcher, Judge:

Upon a motion for judgment, the circuit court of Cabell County rendered judgment against the defendants in favor of the plaintiff for $4,221.81. The items in this amount are: $3,700.00 the principal of the note sued upon, $336.81 interest, and $185.00 attorney's fees. The case is here on error.

The defendants allege as error: (A) that the notice of the motion fails to positively or affirmatively allege a promise by the defendants, or that the note was made or endorsed by either of them; (B) that the notice contains no allegation of non-payment; and (C) the award of attorney's fees.

The notice is as follows:

"To Thomas E. Jeffries and O. J. Deegans:

You and each of you will take notice, that the undersigned, Peoples State Bank, will move the Circuit Court of Cabell County, West Virginia, at the court house of said county, on TUESDAY, OCTOBER 2nd, 1923, at the hour of nine o'clock A. M. or as soon thereafter as counsel may be heard, for a judgment against you and each of you for the sum of $3700.00 and interest that may be due thereon and attorney's fees as contracted for therein, and the costs of such motion, upon that certain promissory negotiable note in words and figures following:

No. Indianapolis, Ind., April 21, 1921.

One (1) year after date I promise to pay to the order of Peoples State Bank, Crown Point, Thirty Seven Hundred Dollars. Negotiable and payable at Peoples State Bank. Crown Point.

With interest at the rate of 7 per cent per annum from date, and five per cent Attorneys fees. Value received without any relief whatever from Valuation or Appraisement Laws. The Drawers and Endorsers severally waive presentment for payment protest or notice of protest and non-payment of this note. $3700.00. Due Apr. 21, 1922. No. 14224. THOS. E. JEFFRIES.

And endorsed on the back thereof O. J. Deegans. And appearing in writing on the back thereof the following notation: Cancelled Check N. S. F.

4-21-22. 1-8 1923 Received check $388.50 Huntington, W. Va., 1-8-1923.

The time of payment of this note is extended to July 1, 1923.

I hereby assent to the above extension of the time of payment of this note without release from liability thereon, or otherwise affecting the provisions therein under the laws of the State of Indiana.

O. J. DEEGANS.

And the said note has written on the face thereof:

"The Drawers and Endorsers severally waive presentment for payment protest or notice of protest and non-payment of this note."

And that said note was delivered to the Peoples State Bank at Crown Point, Indiana, before the maturity thereof;

That the statute of Indiana with reference to the legal rate of interest that may be collected on loans of money, goods and other things is as follows:

BURNS' REVISED STATUTE OF INDIANA OF 1924.

"Section 7950: RATE: The interest on loans or forbearance of money, goods, or things in action, when the parties do not agree on the rate, shall be six dollars a year on one hundred dollars, and at that rate for a greater or less sum, or for a shorter or longer time; but it may be taken yearly, or for a shorter period, in advance. No agreement to pay a higher rate shall be valid, unless the same be in writing signed by the party to be charged thereby; and in such case it shall not be lawful to contract for more than eight per centum per annum. ''

And that at the time the said note was executed by the said Jeffries, and at the time it was endorsed by the said 0. J. Deegans and delivered by the said Peoples State Bank, and for many years prior thereto, and up to the present time, and still is the law of the State of Indiana, as a rule established and adjudicated by the highest judicial courts of said State.

That the statute of Indiana with reference to the collection of Attorney's fees contracted for in a promissory note is as follows:

BURNS 1914 INDIANA STATUTE APPROVED MARCH 10, 1875.

"Section 9089. ATTORNEY PEES. 1. Any and all agreements to pay attorneys fees, depending upon any condition therein set forth, and made a part of any bill of exchange, acceptance, draft, promissory note, or other written evidence of indebtedness, are hereby declared illegal and void. PROVIDED, that nothing in this section shall be construed as applying to contracts made previous to the taking effect of this act."

That at the time the said note was executed by the said Jeffries, and at the time it was endorsed by the said Deegans and delivered to the plaintiff Peoples State Bank at Crown Point, Indiana, and for many years prior thereto and up to the present time, it was and still is the law of the State of Indiana as a rule established and adjudicated by the highest Courts of said State.

And that the said Peoples State Bank, the holder of the note sued on herein has come under obligation to pay attorney's fees for collection of said note.

That at the time and place above mentioned, you and each of you can at and show cause against the said motion, if any you can show.

Dated this 6th day of September, 1923.

PEOPLES STATE BANK OP CROWN POINT, IND.

By counsel.

WARTH & PEYTON and C. W. BIXBY, Attorneys.

0. J. Deegans and Thos. E. Jeffries, Dr.

To Peoples State Bank, Crown Point, Ind.

To principal on note..............$3,700.00

Interest 2 years 5 mo. 11 days

to October 2, 1923................ 633.84

5 per cent Attorney's Fees...... 185.00

January 8, by credit check........ $ 388.50

Balance due as of Oct. 2, 1923.. 4, 130.34

$4,518.84 $4,518.84 Balance due $4,130.34. STATE OF WEST VIRGINIA, COUNTY OF CABELL, TO-WHT:

H. C. Warth, being by me first duly sworn, says that he is the Attorney of the Plaintiff bank named in the foregoing notice and account; that he is familiar with the account of the said plaintiff above set out; that there IS ctS he verily believes, due and unpaid upon the demands stated in such notice and account from the said defendants to the said plaintiff after deducting all payments, credits and sets off, made by the said defendants and to which they are entitled, the said sum of $4,130.34, as of said end day of October, 1923.

H. C. WARTH.

Taken, sworn to and subscribed before me on this the 7th day of September, 1923.

My commission expires August 10, 1933.

T. W. PEYTON, Notary Public."

A leading case in West Virginia on the requirements of a notice, under the statute, of a motion for judgment, is that of Board v. Parsons, 22 W. Va. 308, in which the court held:

"It is the purpose of a notice on which to base a motion for judgment, to acquaint the defendant with the grounds on which he is to be proceeded against; and if it be so plain that the defendant cannot mistake its object, it is sufficient, however wanting it may be in form and technical accuracy."

A large number of cases are cited in the opinion which show that courts have consistently construed such notices with the utmost liberality.

In White v. Sydenstricker et al, 6 W. Va. 46, the following notice was given:

"NOTICE.

To. John T. Sydenstricker, Philander Sydenstricker, and James W. Davis:

Notice is hereby given you, that on the............

day of the next term of the Circuit Court for the

County of Greenbrier,................................... shall

move the said court to render judgment and award execution against you, on an undertaking dated the 15th day of June, 1871, which said undertaking was executed to William H. White in the sum of $219, is conditioned for the forthcoming and delivery of property, and has been forfeited.

Given under................hand this 6th day of September, 1871.

William H. White."

It will be noted therefrom that the day of the motion, as well as the name of the party who would make the motion, is left blank, the "undertaking" referred to is not described, and the maker of the undertaking is not named. Despite all of these technical omissions, the court held in regard thereto: "There is here no possible ground of misapprehension as to its meaning; the parties...