Pettry v. Hedrick

• Decision Date: 03 March 1942
• Docket Number: 9285.
• Citation: 19 S.E.2d 583,124 W.Va. 113
• Parties: PETTRY et al. v. HEDRICK.
• Court: West Virginia Supreme Court

19 S.E.2d 583

124 W.Va. 113

PETTRY et al. v. HEDRICK.

No. 9285.

Supreme Court of Appeals of West Virginia.

March 3, 1942

Rehearing Denied April 27, 1942.

Syllabus by the Court.

George W. Williams and A. D. Preston, both of Beckley, for plaintiff in error.

Ashworth & Sanders, of Beckley, for defendant in error.

FOX President.

Fred Pettry prosecutes this writ of error to a judgment of the Circuit Court of Raleigh County, entered against him on a directed verdict, in an action at law in which he was plaintiff and G. C. Hedrick defendant. The action of the court was based upon its view of the force and effect of a judgment entered in an action before a justice, in which D C. Wade, trustee, was plaintiff and Fred Pettry and May Pettry, his wife, were defendants.

This case was once before this Court on certification. Pettry v. Hedrick, 13 S.E.2d 401, 403. The trial was had on plaintiff's second amended declaration, and the allegations thereof are fully set out in this Court's former opinion, and need not be repeated. Suffice it to say that the gravamen of the plaintiff's charge against the defendant was that he, the defendant, unlawfully took possession of certain household goods of the plaintiff resulting in damage to him. Among others, there was the allegation that a certain written contract and deed of trust between plaintiff and his wife and the defendant had been altered by the defendant to the prejudice of the plaintiff. The defense relied upon by the defendant was that, on the basis of this contract and deed of trust, the trustee thereunder secured a judgment for the possession of the property in question, in an action of detinue, on which a writ of possession was awarded; that the possession of the property in question taken by a constable,

acting under the writ of possession; and that the judgment operated as res adjudicata as to plaintiff's claim herein. There is no denial of the alteration of the contract and deed of trust.

In our former opinion we sustained the plaintiff's declaration and, referring to the judgment now relied upon as a defense stated that "*** we do not believe that the judgment in favor of Wade, trustee, constitutes a justification for the alleged conduct of the defendant, Hedrick." Notwithstanding this holding on our part, the trial court based its action in directing a verdict for the defendant upon what he thought was a valid judgment in favor of Wade, trustee, in the action of detinue above mentioned.

The action of the trial court must be reversed on this point alone. The judgment in question was void, and being void was subject to collateral attack. "A void judgment is no judgment at all, but a mere nullity and may be assailed in any court, anywhere, whenever any claim is made or rights asserted under it." 6 Digest Va. and W.Va.Rep. 332, and cases there cited.

There appears to be no dispute as to what actually occurred in the justice's court. The transcript read in evidence, which is prima facie proof of what occurred, and which is supported by oral testimony, discloses that D. C. Wade, Trustee, on November 4, 1938, instituted an action of detinue against Fred Pettry and May Pettry before E. E. Lilly, Justice of the Peace, returnable November 14th, seeking possession of the household goods mentioned in the contract and deed of trust. The case was continued to November 21st and from that date to December 12th, when the defendants appeared in person and by attorney, and plaintiff appeared by attorney, and the following proceedings had as shown by the transcript: "This case came on to be further heard this 12th day of December, 1938. Both sides were present and agreed to submit it on agreed state of facts, and is continued to some future date, time not set." It will be observed that the only agreement was that the case should be submitted on agreed statement of facts. There was no agreement to continue to any date. It was merely continued by the justice to some future time, not fixed. No further notation appears in the transcript as to any action in the case until the 1st day of September, 1939, when, as shown therein, this action was taken: "Now on this 1st day of September, 1939, at 4:00 p. m. personally appeared atty. for plaintiff also atty. for the defendants. After hearing argument of counsel, it is the judgment of this court that the plaintiff is entitled to a judgment from the defendants and recover from the defendants the following described property:". Then follows a description of the property.

While the language of the transcript is confusing, we think it means that there was no submission of the case on agreed facts on December 12, 1938. If there was such submission then the judgment entered on September 1, 1939, is void because not rendered within twenty-four hours thereafter. Code, 50-13-6. ...