Rollins v. North River Ins. Co.

• Decision Date: 24 September 1929
• Docket Number: 6526.
• Citation: 149 S.E. 838,107 W.Va. 602
• Parties: ROLLINS et al. v. NORTH RIVER INS. CO.
• Court: West Virginia Supreme Court

149 S.E. 838

107 W.Va. 602

ROLLINS et al. v. NORTH RIVER INS. CO.

No. 6526.

Supreme Court of Appeals of West Virginia.

September 24, 1929

Submitted September 18, 1929

Syllabus by the Court.

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.

(Additional Syllabus by Editorial Staff.)

Failure of defendant foreign insurance corporation to receive summons sent by registered letter mailed by person in charge of insurance department in state auditor's office held to constitute an "adventitious circumstance," authorizing setting aside of default judgment against defendant during term at which rendered under Code, c. 125, § 47.

Error to Circuit Court, Kanawha County.

Action by Dave Rollins and another against the North River Insurance Company. Judgment for plaintiffs, defendant's motion to set aside the default judgment denied by the court of common pleas and the circuit court, and defendant brings error. Reversed.

Litz J., dissenting.

For dissenting opinion, see 150 S.E. 753.

Morton & Snyder, of Charleston, for plaintiff in error.

Robert H. C. Kay, of Charleston, for defendants in error.

HATCHER J.

The plaintiff instituted an action on April 25, 1928, against defendant, a foreign corporation, in the court of common pleas of Kanawha county. Service of process was accepted by the state auditor. A trial was had on June 27, 1928, and, no appearance being made by defendant, the jury found for the plaintiff for $672, and the court entered judgment for that amount. On July 12, 1928, a later day of the same term, defendant appeared and moved the court to set aside the judgment; the main ground being that it did not receive a copy of the summons, and had no knowledge of the suit until after judgment was rendered. Filed in support of the motion are affidavits of (1) W. E. White, in charge of the insurance department in the auditor's office, who says that the records show that a copy of the summons was sent defendant by registered mail, and that an acknowledgment of receipt was requested by his office, but that none was received; and (2) H. J. Wyatt, vice president of defendant, who says that he has charge of all correspondence from the auditor of West Virginia, and that the summons was never received by his office; that defendant had no knowledge of the suit until after judgment had been rendered against it; and that it has a good defense. The court of common pleas refused to set aside its judgment, and the circuit court upheld that finding.

A judgment by default, such as the one here, may be set aside during the term at which it is rendered, if "good cause be shown therefor." Code, c. 125, § 47. To constitute a good cause, under the statute, it must be shown that the appearance of the defendant was prevented by "fraud accident, mistake, surprise, or some other adventitious circumstance beyond the control of the party, and free from neglect on his part." Post v. Carr, 42 W.Va. 72, 24 S.E. 583; Gainer v. Smith, 101 W.Va. 314, 132 S.E. 744. The affidavits of Wyatt and White are undisputed, so far as they relate to the summons, and no reason appears for doubting them. It is common knowledge that the...