Risher v. Wheeling Roofing & Cornice Co.
| Decision Date | 14 February 1905 |
| Citation | 49 S.E. 1016,57 W.Va. 149 |
| Parties | RISHER v. WHEELING ROOFING & CORNICE CO. |
| Court | West Virginia Supreme Court |
Submitted January 31, 1905.
Syllabus by the Court.
1. In an action of assumpsit plaintiff filed his declaration at October rules, 1903, and the common order was entered thereon by the clerk. At November rules following, the defendant filed a plea of payment, answering part of the plaintiff's claim, and by an addition to the plea acknowledged itself indebted for the residue of the plaintiff's claim, and offered to confess judgment therefor; and the clerk made an entry of a plea of the general issue by the defendant, and of the common order confirmed, which entry at the ensuing term was stricken out by the court, and the plaintiff did not appear at rules after the filing of the plea of payment, and either demur or reply thereto, or "sign judgment" by entering a nolle prosequi for the part of the plaintiff's claim not answered by the plea of payment. Held, these proceedings at rules did not operate as a discontinuance of the action, and the clerk properly placed the case on the docket for the ensuing term of court.
2. Under the circumstances of this case the defendant was not entitled to a continuance as a matter of right at the ensuing term of court.
3. The pendency of a suit in equity is not ground of defense to an action at law for the same cause of action, pending at the same time, either under the general issue or plea in abatement.
4. In an action at law a plea in abatement of a former suit pending, which does not aver whether such former suit is pending at law or in equity, is bad for uncertainty.
Error to Circuit Court, Ohio County; Thayer Melvin, Judge.
Action by H. A. Risher against the Wheeling Roofing & Cornice Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Handlan & Reyman and Hubbard & Hubbard, for plaintiff in error.
Caldwell & Caldwell, for defendant in error.
On the 16th day of September, 1903, H. A. Risher instituted an action of assumpsit against the Wheeling Roofing & Cornice Company in the circuit court of Ohio county, and filed his declaration and bill of particulars therein at October rules 1903, and the clerk entered the common order. At November rules the defendant appeared, and filed a plea of payment concluding to the country, as to the sum of $776.93 part of the sums in the declaration mentioned, and by an addition to the plea acknowledged itself indebted to the plaintiff in the sum of $10, the residue of plaintiff's claim as shown by his bill of particulars, and confessed or offered to confess judgment therefor, and the clerk made the following entries on the rule docket: Without any other proceedings at rules, the action was placed on the docket for the November term of the circuit court which began on the 16th of November, 1903. On the first day of the term the defendant moved the court to remand the action to rules, and the arguments on the motion were set down for November 19, 1903. On the 19th of December, 1903, an order was entered whereby it appears substantially as follows: The defendant having at a former day of the term moved the court to strike this action from the docket and remand it to rules on the ground that it was improperly on the docket, the plaintiff, having at the same time moved the court to strike from the file the plea in writing filed by the defendant at November rules on the ground that it was a sham plea, tendered with the motion two affidavits. The evidence of the deputy clerk was heard. The defendant tendered an affidavit in opposition to the plaintiff's motion.
The questions arising upon such motions were heard together. Objections were made to the filing of the affidavits. The court rejected the affidavits, and overruled the motion of the plaintiff and the motion of the defendant. Thereupon the plaintiff moved that the case be set for trial upon a given day of that term. The defendant moved for a continuance to the next term. Both motions were continued until the 26th of December. By an order entered on the 2d day of January, 1904, it appears substantially as follows: The defendant assigned as grounds for its motion to continue that the plea of the general issue as well as the confirmation of the common order had been inadvertently and improperly entered at rules by the clerk and filed an affidavit in support of the motion. Upon consideration of such motion the plea of the general issue and the confirmation of the common order were stricken out by the court. After such correction the court held that the action was properly on the docket, and overruled the motion to continue. Thereupon the defendant offered to file its second special plea in writing, averring the pendency of a former suit, to which the plaintiff objected, and the defendant asked time to file affidavits in support of the plea, and time was granted until January 4th to file such affidavits. By an order entered on the 23d day of January it appears substantially as follows: The defendant having at a former day of the term offered to file an affidavit in writing with exhibits in support of its second plea in writing then tendered, the plaintiff objected to the filing of the plea and affidavit, and moved to reject the same, which motion the court sustained, and rejected the plea and affidavit. Thereupon the defendant moved the court for leave to file its third plea in writing, tendering with the motion the third plea, averring the pendency of a former suit, and moved the court to consider in support of the third plea the same affidavit and exhibits tendered in support of its second plea. The plaintiff objected to the filing of the third plea, and moved to reject it. Upon consideration by the court the third plea and affidavit with exhibits were rejected. The plaintiff joined issue on the plea of payment and on his motion the action was set for trial for February 1st. By an order entered on the 3d day of February it appears substantially as follows: The defendant waived a jury, and, the plaintiff desiring none, the action was put upon trial to the court, and the court, having heard the plaintiff's evidence and the defendant having offered no evidence, entered judgment in favor of the plaintiff for the sum of $786.93, the full amount of plaintiff's claim as shown by the bill of particulars. The defendant moved the court to set aside the judgment and award it a new trial, which was overruled, and defendant excepted, and was granted leave to file its bill of exceptions in vacation. The bill of exceptions, which included the evidence, was afterwards signed, and made part of the record. The several rulings of the court were excepted to by the opposite party. The case comes here by writ of error and supersedeas allowed the defendant.
The defenses in this action are said to be technical. They may be technical, but are important, and, if legal, are binding on the court. In order that the proceedings may appear in their proper sequence, the detailed statement above is given. The principal questions arising upon the record are: First. Did the proceedings at rules or in court operate as a discontinuance of the action? Second. Should the defendant have been granted a continuance as a matter of right? Third. Should the court have admitted the second and third pleas of a former suit pending? These are not the only questions arising, but, in our judgment, are the most material. In determining the question as to a discontinuance, we must consider what was the legal effect of the addition to the plea of payment, acknowledging indebtedness and confessing or offering to confess judgment for that part of the plaintiff's claim not answered by the plea. We think this addition to the plea cannot be treated as more than an offer to confess judgment for that part not answered by the plea and an acknowledgment of the plaintiff's claim to that extent. We do not consider it a confession of judgment under the statute (Code 1899, c. 125, § 43), because such confession must be assented to by the plaintiff. The sum must be such as the plaintiff is willing to accept. We think the addition to the plea must, for the purpose of a discontinuance, be treated in the same manner as a failure to plead to the part of plaintiff's claim not answered by the plea of payment. In support of the view that there was a technical discontinuance, the defendant invokes a rule of pleading to the effect that, where a defendant files a proper plea, which is an answer to a part of the plaintiff's declaration, and does not in that or any other plea notice the remainder of the declaration, the plaintiff must take judgment for the part unanswered as by nil dicit. If he demur or plead over without taking such judgment, the whole action is discontinued; for in such case the plaintiff, by omitting to enforce such claim in respect of the unanswered portion of his claim by taking judgment, or to re-sign it by entering a nolle prosequi thereto, causes a chasm or hiatus in the proceedings. 1 Chitty...
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