Reed v. Higginbotham

• Decision Date: 25 February 1947
• Docket Number: No. 9894,9894
• Citation: 129 W.Va. 707
• Parties: Roy Reed v. Paul D. Higginbotham, et al.
• Court: West Virginia Supreme Court

129 W.Va. 707

Roy Reed

v.Paul D. Higginbotham, et al.

No. 9894

Supreme Court of Appeals of West Virginia.

Submitted January 14, 1947.

Decided February 25, 1947.

Equity

In a suit in equity where process on the defendant has been regularly served, the suit matured for hearing, and the bill states good grounds for relief, a decree entered in default of any appearance by defendant will not be set aside unless good cause be shown therefor, which good cause can only be made to appear by a showing of fraud, accident, mistake, surprise or some other adventitious circumstance beyond the control of the defendant, and free from his neglect.

Appeal from Circuit Court, Kanawha County.

Suit in equity by Roy Reed against Paul D. Higginbotham and Samuel C. Higginbotham to have purported transfer of automobile from first-named defendant to other defendant set aside and that automobile be decreed to be property of first-named defendant subject to lien of plaintiff's execution. From an order setting aside a default decree and permitting defendant Samuel C. Hig- ginbotham to present his defense, the plaintiff appeals.

Reversed and remanded with directions.

H. D. Rollins, for appellant.

Goad and Goad, for appellees.

Fox, President:

This appeal involves the correctness of an order entered by the Court of Common Pleas of Kanawha County, and later affirmed by the circuit court of said county, by which a default decree entered by the first-mentioned court, in the chancery cause of Roy Reed against Paul D. Higginbotham and Samuel C. Higginbotham, was set aside, and the defendant, Samuel C. Higginbotham, permitted to present his defense in the suit in which such order was entered.

On November 19, 1945, Roy Reed recovered a judgment against Paul D. Higginbotham, for the sum of $725.00 and $28.85 costs, in the Court of Common Pleas of Kanawha County. On December 3, 1945, an execution was issued and delivered to the sheriff of said county, which execution was later returned "No property found". On the same day the said execution was recorded in the office of the Clerk of the County Court of Kanawha County.

On April 25, 1946, plaintiff instituted a suit in equity in the Court of Common Pleas of Kanawha County against Paul D. Higginbotham and Samuel C. Higginbotham, returnable to May rules, 1945. In his bill the plaintiff sets up the recovery of the judgment in his favor, mentioned above, and it is averred that the obligation on which said judgment was recovered originated in the month of March, 1945, at which time it is alleged that Paul D. Higginbotham was the owner of a certain Packard sedan automobile; that on August 7, 1945, the said Paul D. Higginbotham purported to sell the said automobile to his brother, Samuel C. Higginbotham; and that such pretended sale was a fraud and made for the sole purpose of hindering, delaying and preventing plaintiff from the enforcement of his lien. In this connection it should be stated that on April 25, 1946, another execution on said judgment was issued, returnable to July rules, 1946, and placed in the hands of the Sheriff of Kanawha County. It appears, from an exhibit filed with the bill, that in the application for a certificate of title evidencing the said transfer, defendant, Samuel C. Higginbotham, under his signature and under his oath, represented, in effect, that he had secured title to the automobile through "gift from brother". The prayer of the bill is that the purported transfer of said automobile be set aside and held for naught; that the said automobile be decreed to be the property of Paul D. Higginbotham, subject to the lien of plaintiff's execution; and that defendant be ordered to surrender the same to the Sheriff of Kanawha County, to the end that he might make sale of the same as provided by law. The prayer also asks that an injunction be awarded restraining and inhibiting the defendants from transferring the automobile during the pendency of the cause. The bill was filed on April 29, 1946, and on the same day an injunction was awarded, restraining the transfer of the automobile, as prayed for in the bill.

Neither defendant appeared in the said suit, and it was matured for hearing at June rules, 1946. On June 18, 1946, the Court of Common Pleas of Kanawha County entered a decree in the cause holding the transfer of the automobile in question to constitute a fraud upon the plaintiff, Roy Reed, in violation of Section 1, Article 1, Chapter 40, of the Code of West Virginia, and that the same was void. It was then ordered that the automobile be subjected to the claim of plaintiff represented by the judgment and execution aforesaid, and that the Sheriff of Kanawha County should seize and impound said automobile, and sell the same at public auction, to the highest bidder, for cash, and distribute the proceeds of such sale, first, to the payment of costs of the sale; second, to the satisfaction of plaintiff's judgment; and the residue, if any, to the defendants as their interests might appear. On June 24, 1946, the Sheriff of Kanawha County took the automobile into his possession.

On June 27, 1946, Samuel C. Higginbotham appeared and tendered his petition, which was filed, which, in effect, stated that he had received the summons in said chancery cause on May 1, 1946, requiring him to appear on the first Monday in May next, to answer a bill in chancery exhibited against him; that he immediately proceeded to the office of the clerk of the court from which said summons issued, and was told by said clerk that the summons was just a notice that the suit had been brought, and that "you do not have to appear at this time"; that he then left the clerk's office thinking that if there should be a trial he would again be notified in advance thereof; that he did not learn of any action in the cause until June 21, 1946, when he immediately employed counsel and was informed that an order had been entered, whereby his automobile would be attached and sold for the debt of Paul D. Higginbotham, one of the defendants in said suit. He averred that he had a just and valid defense to the claim of the plaintiff, and prayed that the decree of June 18, 1946, as to him, be vacated, and declared null and void; that the case be reopened and heard on its merits; and for general relief. Plaintiff's demurrer to this petition was overruled. Evidence was taken bearing upon the grounds of defense to the original suit, and on July 11, 1946, an order was entered in the cause by which the default decree entered therein on June 18, 1946, was set aside, and the said Samuel C. Higginbotham was given leave to file his answer, and make defense in said cause, to which the plaintiff objected and excepted at the time. This order was affirmed by the Circuit Court of Kanawha County on September 30, 1946, and from the order of the circuit court this appeal is prosecuted.

From the foregoing it will appear that Samuel C. Higginbotham, on whose petition the court entered the order of July 11, 1946, was served with process in the original suit. He was served with process by having the same delivered to a member of his family over the age of sixteen years, and received actual notice of such process and suit, because he says in his petition that upon receipt of the process he immediately went to the office of the Clerk of the Court of Common Pleas of Kanawha County and made inquiry with respect thereto, and was correctly told that the summons was merely notice of suit, and that he need not appear on that day. It also appears from the record that Higginbotham later and before the decree of June 18, 1946, consulted, but did not employ, counsel at that time, and, prior to June 21, 1946, did nothing toward defending the...