Peters v. Hajacos

• Decision Date: 02 May 1922
• Docket Number: (No. 4514.)
• Court: West Virginia Supreme Court
• Parties: PETERS . v. HAJACOS et al.

112 S.E. 233

PETERS .

v.HAJACOS et al.

(No. 4514.)

Supreme Court of Appeals of West Virginia.

May 2, 1922.

(Syllabus by the Court.)

Error to Circuit Court, Kanawha County.

Action in assumpsit by Arthur Peters against A. J. Hajacos and another, as partners. A verdict for the defendants was set aside upon plaintiff's motion, and judgment rendered notwithstanding the verdict, and the defendants bring error. Reversed and remanded for new procedure as to everything subsequent to the declarations, bill of particulars, and statutory affidavit.

J. Howard Hundley and E. M. Surber, both of Charleston, for plaintiffs in error.

Lively & Stambaugh, of Charleston, for defendant in error.

POFFENBARGER, P. Only a question of practice arises upon this writ of error to a judgment for $1,600, rendered in an action of assumpsit upon an open account for services rendered. The details of the origin of the claim asserted are not material and need not be stated.

The declaration was filed at August rules, 1921, together with the affidavit provided for in section 46, c. 125 of the Code (see. 4800). At the next term of the court, one of the two defendants sued as partners, appeared and tendered two special pleas, called pleas in abatement, one of which averred the promises alleged, if any, were made to a person other than the plaintiff, and the other that the court had not jurisdiction because the plaintiff and defendant were partners, in respect of the transaction out of which the cause of action was alleged to have arisen. Both of these having been rejected, he tendered a plea of nonassumpsit, which was admitted over objection. The order shows no joinder of issue, but a jury was impaneled and the evidence of the parties introduced. Thereupon the plaintiff moved the court to strike out the plea and direct a verdict for him. His motion was overruled and then the defendant asked leave to file a counter affidavit and his plea of nonassumpsit, which was refused. Thereupon the jury returned a verdict for the defendants, but the court, upon the motion of the plaintiff, entered the judgment complained of, notwithstanding the verdict, evidently under the impression that no writ of inquiry of damages was necessary. Before this motion was sustained, and, in resistance thereof, one of the defendants tendered an affidavit denying the partnership alleged and again tendered the counter affidavit and plea, all of which the court rejected.

In an action of assumpsit upon an open account, the filing of the statutory affidavit does not dispense with the necessity of an inquiry of damages, by virtue of the provi-sions of sections 44 to 47 of chapter 125 of the Code (sees. 4798-801). Walls v. Zufall & Co., 61 W. Va. 166, 56 S. E. 179; Gray v. Mankin, 69 W. Va. 544, 72 S. E. 648; Rosenthal v. Fox, 70 W. Va. 752, 74 S. E. 959; Rosencrance v. Kelley, 74 W. Va. 100, 81 S. E. 705.

In such case, the defendant may file his counter affidavit and plea at any time before execution of the order for inquiry of damages. Philip Carey Mfg. Co. v. Watson, 58 W. Va. 189, 52 S. E. 515; Federation Window Glass Co. v. Cameron Glass Co., 58 W. Va. 477, 52 S. E. 518; Walls v. Zufall & Co., 61 W. Va. 166, 56 S. E. 179; Wilson v. Shrader, 73 W. Va. 105, 79 S. E. 1083, Ann. Cas. 1916D, 886; Gray v. Mankin, 69...