Post v. Carr

• Decision Date: 04 April 1896
• Citation: 42 W.Va. 72,24 S.E. 583
• Court: West Virginia Supreme Court
• Parties: POST. v. CARR.

24 S.E. 583

42 W.Va. 72

POST.

v.CARR.

Supreme Court of Appeals of West Virginia.

April 4, 1896.

Default Judgment —Setting Aside — Failure to Defend.

1. After judgment by default has been en-entered up in court, or an order of inquiry of damages has been executed, under section 46, c. 125, Code, it cannot 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.

2. Case where failure of attorney or party to make defense is held not good cause for setting aside a judgment by default.

(Syllabus by the Court.)

Error to circuit court, Ohio county.

Action by Melville D. Post against William M. Carr and Alfred S. Carr. Judgment for plaintiff. Defendant William M. Carr brings error. Affirmed.

W. P. Hubbard and S. G. Smith, for plaintiff in error.

Caldwell & Caldwell, for defendant in error.

BRANNON, J. Melville D. Post brought an action of assumpsit in the circuit court of Ohio county against William M. Carr and Alfred S. Carr. Process was served on William M. Carr, but not on Alfred S. Carr, and as to the latter the case was dismissed. There was no appearance by either defendant, and, when the term of court came on, the court took up the case, and proceeded to ascertain the amount which the plaintiff was entitled to recover, and, having heard the plaintiff's evidence, found that the plaintiff was entitled to recover against William M. Carr $500, and rendered judgment. Later in the term, Carr asked the court to set aside the judgment, and allow him to make a defense, which the court refused to do, and from this refusal Carr has sued out this writ of error. Carr was served with process to answer the action, and had the full time and opportunity given by law to appear at rules, and afterwards a number of days in term to present his defense; but he appeared not, but allowed a conditional judgment and order for inquiry of damages to be entered at rules, and allowed the case to be called and taken up at the next term, and the inquiry of damages to be executed, without defense. Thus, the case, by due procedure, came to an end in final judgment, and the plaintiff had a vested right in his judgment. Clearly. It could not be set aside merely on the ground that the defendant asked it, under principles of common-lawprocedure, because the entry of judgment discharged the plaintiff from doing further suit with his witnesses in the case. When we say that the record is in the breast of the court to be changed during the term, we only mean that proceedings attested by it have not yet obtained that irrevocable character which places them beyond the power of the court after the term. We only mean that the court can, for good reasons, and under proper circumstances, modify, set them aside, or otherwise affect them during the term. By no means do we mean that a party who has, by due process of law, obtained the final judgment of the law upon his cause, can have his property in that judgment arbitrarily taken from him at the unwarranted behest of his adversary. But, were this not so on general principles, our statute would step in, and cut down this power of the court, when it provides, in section 47, c. 125, Code, that if a defendant against whom judgment has been entered in the office at rules may appear at next term, and plead to issue, it may be set aside, yet it limits this right by saying: "But if the judgment has been entered up in court, or the order for an inquiry of damages has been executed, it shall not be set aside without good cause be shown therefor." Thus, it is very plain that good cause must be shown, and the only question in the construction of this clause is, what is good cause under it? We must apply some legal test. It is an application for Jew trial, and is to be tested by principles governing applications for new trial in the same court rendering the judgment where the case has gone to the jury undefended. There must be fraud, accident, surprise, mistake, or some adventitious circumstance preventing the party from making defense, excusing his absence; and he must be free from culpable neglect, for some of these circumstances must exist which prudence could not guard against, "and the slightest negligence, will defeat the application." 1 Grah. & W. New Trials, 174; 3 Grah. & W. New Trials, 881. Clearly, we ought to apply the rule laid down by this court in the case where a party fails to take an appeal from a justice within time, and then applies to a circuit court within 90 days; for the cases are parallel in nature, and the language of the statute on applications for an appeal, where there is "good cause" for his not taking the appeal sooner, is the same as that relative to setting aside judgments by default; and in such case it has been several times...