State ex rel. Alkire v. Mili
| Decision Date | 21 May 1935 |
| Docket Number | 8058. |
| Citation | 180 S.E. 183,116 W.Va. 277 |
| Parties | STATE ex rel. v. MILI et al. ALKIRE |
| Court | West Virginia Supreme Court |
Submitted May 7, 1935.
Syllabus by the Court.
"In order to set aside a default judgment, regularly obtained by due process of law, the party complaining must show that he has a good defense, and that his failure to appear and assert that defense was because of fraud, accident, surprise mistake, or some adventitious circumstance over which he had no control, and that he was free from neglect in not making timely defense." Gainer v. Smith, 101 W.Va 314, 132 S.E. 744.
Error to Circuit Court, Barbour County.
Action by the State, at the relation of W. E. Alkire, against Toni Mili and Louie Picalo. Judgment for plaintiff. To review an order vacating a default judgment, the relator brings error.
Order reversed, and judgment reinstated.
Wm. T George, of Philippi, for plaintiff in error.
E Wayne Talbott, of Philippi, for defendants in error.
This is a writ of error to an order of the circuit court of Barbour county setting aside a judgment which had been rendered at the same term.
The matter was first heard before a justice of the peace who rendered judgment for $300.00, interest and costs, in favor of the plaintiff, state of West Virginia at the relation of W. E. Alkire, against the defendants, Toni Mili and Louie Picalo. The defendants took an appeal to the circuit court October 20, 1930. The matter there lay dormant until January 29, 1934, when a judgment by default was rendered in favor of plaintiff against the said defendants and Tona Petite, surety on their appeal bond, for $359.40, in full of the claim with costs and damages. A few days later, on motion of Mili and Picalo, the court set aside the judgment.
The grounds urged by the defendants to support the motion to vacate the judgment were that at the time of trial there was no court file of papers available (evidently the same had been mislaid or lost); that Toni Mili, the principal defendant, charged with the responsibility of the defense, was ill at the date of the trial and had been ill for a few days prior thereto, and because of his illness "he had not had opportunity to employ counsel to represent him in said action, but had intended to do so on the day of the trial had he been able to have been here."
The absence of the court file at the trial was not of serious consequence in view of the showing of the record that there was then filed in court a certified transcript of the record of the justice of the peace in respect of the proceedings before him. Whether defense was made before the justice does not appear from the transcript. No plea was entered. The circuit court heard the matter without a jury. Code 1931, 56-6-11.
Was the ground of illness urged by the defendants sufficient? We think not. While it is true that in an appellate court it requires a stronger showing to reverse an order granting, than one refusing a new trial (a proposition here relied on by defendants), such principle is not applicable where there is a judgment. On such consummation, the rights of the creditor extend far beyond mere matter of procedure prior to judgment. A judgment constitutes a property right, and can not be destroyed by vacation except for good cause-legal justification.
Our statute which deals with the matter of setting aside judgments is Code 1931, 56-4-52. It provides that at the same term at which a judgment was rendered it may be set aside for good cause. A showing of "fraud, accident, mistake, surprise, or some other adventitious circumstance beyond the control of the party, and free from neglect on his part," will constitute such good cause, but nothing less will suffice. Post v. Carr, 42 W.Va. 72, 24 S.E. 583; Gainer v. Smith, 101 W.Va. 314, 132 S.E. 744.
The defendants, Mili and Picalo, took the case on appeal to the circuit court. Its pendency there was due wholly to...
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