Plumley v. May, 10708

• Decision Date: 24 May 1955
• Docket Number: No. 10708,10708
• Citation: 140 W.Va. 889,87 S.E.2d 282
• Court: West Virginia Supreme Court
• Parties: Mitchell PLUMLEY, v. Ralph MAY.

Page 282

87 S.E.2d 282

140 W.Va. 889

Mitchell PLUMLEY, v. Ralph MAY.

No. 10708.

Supreme Court of Appeals of West Virginia.

Submitted April 26, 1955.

Decided May 24, 1955.

Syllabus by the Court.

1. Where a defendant against whom a default judgment has been entered timely moves the setting aside of the judgment, and establishes good cause therefor by showing some adventitious circumstance beyond his control which prevented the making of a defense to the action, and was free from neglect, the default judgment should be set aside, notwithstanding the defendant was served with legal process commencing the action.

2. 'An adventitious circumstance which may afford good cause for setting aside a default judgment is one which is unusual, unexpected, beyond the control of the movant, and free from his neglect.' Syllabus, Rollins v. North River Insurance Co., 107 W.Va. 602, 149 S.E. 838.

Scherer, Bowers & File, W. H. File, Jr., Beckley, for plaintiff in error.

G. Berk Lynch, Sayre, Lynch & Henderson, Beckley, for defendant in error.

GIVEN, Judge.

Involved in this case is the question whether 'good cause' has been shown by the defendant Ralph May for the setting aside of a default judgment for five thousand dollars, entered by the Circuit Court of Raleigh County, in favor of the plaintiff, Mitchell Plumley, as permitted by Code, 56-4-52. The circuit court denied the motion of May to set aside the judgment. This Court granted this writ of error.

The claim for damages upon which the action was based grew out of a collision, between a pick-up truck owned and driven by plaintiff and a tractor truck owned by May, on a public road near Beckley. The tractor truck was, at the time of the collision, being operated by Palmer Chambers, an employee of May. The default judgment was against both May and Chambers, who were residents of Florida. The trial court set aside the default judgment as to Chambers, for reasons immaterial here. Service of process was had upon defendants under the non-resident motorist statute, Code, 56-3-31. May concedes the service of process to be valid. After accepting service of process, the Auditor of the State of West Virginia, by registered mail, forwarded the process against May, addressed to him at his place of residence at Winter Haven, Florida. At the time the registered letter was received at the post office at Winter Haven, May was in California on an extended business trip. His wife, and their two children, ages nine and five, were also away from the home at Winter Haven. The wife, with the children, returned to the home sometime before the return of May from California. On the return of the wife, she found in the family mail box notices from the post office of the fact that the registered letter addressed to May and the registered letter addressed to Chambers were being held for delivery. She later appeared at the post office, signed the return receipts, received the registered letters, and placed them on a table in the reception hall of her home, without opening them. What happened to the latters thereafter is not known. The wife believes that they were inadvertently destroyed by the maid in cleaning, or by one or the other of her children.

The collision occurred on the 25th day of April, 1953. The plaintiff instituted his action on the 19th day of September, 1953. The registered letters were delivered to the wife on the 1st day of October, 1953. The default judgment was entered December 18, 1953. The defendant May returned to his home about October 15 or 16, 1953, which was about two weeks subsequent to the date the registered letters were received by his wife. Upon his arrival, he was informed of the receipt of the letters and of the fact that they were from West Virginia, but it seems certain that neither the defendant nor the wife had any actual knolwedge of the contents of either of the letters prior to the time of the entry of the default judgment. The defendant made inquiry of each person employed by him as a truck driver, including Chambers, each of whom denied any knolwedge of any collision involving any truck driven by him in West Virginia. The defendant denied any actual knowledge of the collision between the vehicles of plaintiff and defendant, and testified to the effect that he believed the registered letters probably related to some charge or debt created by some one of the truck drivers employed by him. It appears certain that the defendant May had no actual knolwedge of the institution or pendency of the action or of the collision until after the entry of the default judgment. Upon receipt of information as to the entry of the default judgment, May promptly moved the court to set it aside. This motion was made at the term of court at which the default judgment was entered.

Code, 56-4-52, makes provision for the setting aside of default judgments, and authorizes and empowers the court to set aside such a judgment only if 'good cause be shown therefor.' In Post v. Carr, 42 W.Va. 72, 24 S.E. 583, this Court held: 'After judgment by default has been entered up in court, or an order of inquiry of damages has been executed, under section 46, chapter 125, Code, it can not be set aside, and a defense to the action be allowed, under section 47, without good cause being shown therefor; and such good cause can only appear by showing fraud, accident, mistake, surprise, or some other adventitious circumstance beyond the control of the party, and free from neglect on his part.' In Ellis v. Gore, 101 W.Va. 273, 132 S.E. 741, holdings in prior cases considering the questions involved were reviewed and discussed. Later decisions are: Reed v. Higginbotham, 129 W.Va. 707, 41 S.E.2d 668; Baker v. Gaskins, 128 W.Va. 427, 36 S.E.2d 893; Winona National Bank v. Fridley, 122 W.Va. 479, 10 S.E.2d 907; Arnold v. Reynolds, 121 W.Va. 91, 2 S.E.2d 433; Black v. Foley, 117 W.Va. 490, 185 S.E. 902; State ex rel. Alkire v. Mili, 116 W.Va. 277, 180 S.E. 183; Sigmond v. Forbes, 110 W.Va. 442, 158 S.E. 677; Parsons v. Parsons, 102 W.Va. 394, 135 S.E. 228; Gainer v. Smith, 101 W.Va. 314, 132 S.E. 744. In Rollins v. North River Insurance Co., 107 W.Va. 602, 149 S.E. 838, this Court held: 'An adventitious circumstance which may afford good cause for setting aside a default judgment is one which is unusual, unexpected, beyond the control of the movant, and free from his neglect.' An examination of the cited cases is helpful in determining what facts constitute...