Snider et at v. Cochran.

• Decision Date: 17 April 1917
• Citation: 80 W.Va. 252
• Court: West Virginia Supreme Court
• Parties: Snider et at v. Cochran.

80 W.Va. 252

Snider et at

v.Cochran.

Supreme Court of Appeals of West Virginia.

Submitted April 10, 1917.

Decided April 17, 1917.

1. Pleading Demurrer Construction of Statute.

The right reserved to a defendant, by see. 47 of ch. 125 of the Code, to appear and plead to issue, before the end of the term at which a judgment entered against him in the office of the clerk would become final, is broad and comprehensive, and includes the right to plead to an issue of law, by the filing of a demurrer to the declaration; and, if he appears and enters such a demurrer, before the judgment has been entered up in court, the plaintiff has no right then to have it so entered up, in disregard of the tender of the demurrer. (p. 253).

2. Same Defective Demurrer Pleading Over.

If a demurrer so tendered is not well taken, the court, upon overruling the same, must permit the defendant to plead to an issue of fact, if he tenders the plea and counter affidavit, when the latter is required, before the judgment is entered up. (p. 253).

3. Same Demurrer and Plea Construction of Statute.

The statute reserves the right to appear and plead to an issue of law or an issue of fact, or both, as the defendant may elect, and he may raise them simultaneously by demurring and filing his plea at the same time, or successively, by demurring first and filing his plea after the demurrer has been overruled. (p. 253).

4. Same Plea Time.

In a case in which there is no order for an inquiry of damages, but in which the plaintiff has filed the statutory affidavit for proof of the amount of his demand, the defendant may appear and plead to issue, within the term at which the office judgment would become final, at any time before the judgment has been actually entered on the order book of the court. Notation of the default, preparation of the judgment order and direction to the clerk to enter the same, do not cut off the right of defense on the merits, (p. 253).

5. Statutes Construction Derogation of Common Law.

Sections 46 and 47 of ch. 125 of the Code derogate from the common law and regulate or restrict the constitutional right of trial by jury, wherefore they are strictly construed and cannot be enlarged by construction, in furtherance of legislative policy, (p. 255).

Error to Circuit Court, Wetzel County.

Assumpsit by J. E. Snider and others against James L. Cochran. Judgment for plaintiffs, and defendant brings error.

Reversed and remanded.

Thos. H. Cornett and Thos. J. Jacobs, for plaintiff in error. Larrick & Lemon, for defendants in error.

poffenbarger, judge:

The argument submitted on this writ of error to a judgment by default for the sum of $1,269.20, rendered in an action of assumpsit, is limited to a single question, namely, the sufficiency of the affidavit filed with the declaration, to prevent the setting aside of the office judgment, in the absence of a counter affidavit denying liability, and to prove the amount of the plaintiff's demand, for the purpose of entry of final judgment by default.

Under the statute, Code, ch. 125, sees. 46 and 47, a defendant has right, on filing a counter affidavit, when the plaintiff has filed his statutory affidavit, to appear and plead to issue, at any time within the term at which the office judgment would become final, provided he appears before actual entry thereof; and, after actual entry thereof, within the term, he can make defense, if he shows good cause for setting aside the office judgment. In such case, he must tender his plea and a counter affidavit, denying liability in whole or in part, as well as show good cause for not having appeared and pleaded before the entry of the judgment or execution of the writ of inquiry. Citizens Trust and Guaranty Go. v. Young, Adm'x., 75 W. Va. 241.

Though the judgment here complained of had not been actually entered up, at the time of the appearance of the defendant, the order containing it had been prepared and endorsed for entry. In this state of the case, he moved the court to set aside and reverse the unentered order and the endorsement thereon, tendered his demurrer to the declaration, asked leave until the next day to set out specific grounds of the motion and demurrer, in writing, and asked that the motion and demurrer be filed. On an objection made by the plaintiffs, the court took time to consider whether it would allow the motion and demurrer to be filed, and the plaintiffs objected to the entry of an order setting forth these proceedings. On the next day, the defendant again appeared and charged insufficiency of the affidavit filed with the declaration, as evidence of the amount of the demand of the plaintiffs, and further moved that the affidavit be quashed and that he be granted leave to file a plea of non-assumpsit. Upon an objection to the filing of these motions, made by the plaintiffs, the court again took time to consider, and the plaintiffs objected to the entry of the order setting forth the objection to the affidavit, the motion to quash and request for leave to plead. Although there is no order expressly overruling the objections of the plaintiffs to the filing of the motions made, the court treated the case as standing on a motion to reverse or set aside the judgment, and, on February 2, 1915, entered an order overruling such motion. As the judgment order bears date January 13, 1915, and the court treated the procedure on the part of the defendant as a motion to set aside and rehear, said order must be deemed to have been entered January 13, 1915, but after the appearance of the defendant and the tender of his demurrer. A bill of exceptions granted by the court says the defendant, after rendition of the judgment, not entry thereof, moved the court to set it aside and allow him to plead to issue.

In view of the appearance and tender of a demurrer, before the judgment order was actually entered in the records of the court, it is deemed unnecessary to inquire whether the affidavit relied upon for preclusion of right to vacate the office judgment and plead to issue, in the absence of a counter affidavit, is sufficient or not. It says the account to which it is appended is just and correct, that no part of the same has been paid and that after all just credits and sets off, there is due from the defendant to the plaintiffs $1,253.25, with interest on the two items thereof from their dates. In this informal way, it incorporates the most essential requirements of the statute, and, if a substantial compliance with the statutory requirements suffices, it may be good. Ordin- arily, the language of the statute is followed, in the preparation of such an affidavit, and no good purpose would be subserved by the prescription of a new form, in a judicial opinion. The motion to quash the affidavit was only one of the several methods adopted by the defendant to prevent entry of the judgment. He tendered a clearly sufficient counter affidavit, within the time saved to him by his demurrer, and that gave him right to interpose a plea raising an issue of fact. If the affidavit appended to the account is sufficient, it is in bad form. Affirmation of its legal sufficiency would involve enunciation of principles subversive of order and care in the preparation of legal instruments. It is much better to adhere to the plain and...