State v. Rogers

• Decision Date: 15 March 1949
• Docket Number: No. 10066.,10066.
• Court: West Virginia Supreme Court
• Parties: STATE, for Use of STOUT, v. ROGERS et al.

52 S.E.2d 678

STATE, for Use of STOUT,

v.ROGERS et al.

No. 10066.

Supreme Court of Appeals of West Virginia.

March 15, 1949.

Syllabus by the Court.

1. An action at law by way of notice of motion, provided for by Code, 56-2-6, will not lie on an injunction bond, where the damages sought to be recovered are unliquidated.

2. In a notice of motion proceeding under Code, 56-2-6, either the motion itself, or the affidavit which may be filed therewith, must state distinctly the several items of the plaintiff's claim.

3. A bill of particulars which, for good cause, may be required under Code, 56-4-19, does not, when filed, become a part of the pleadings in a notice of motion action at law, authorized by Code, 56-2-6, and may not be employed to cure defects existing in such motion.

4. The verdict of a jury in favor of a plaintiff, based on testimony which does nothing more than furnish grounds for conjecture or speculation as to the proper verdict to be returned, cannot be justified, and will be set aside by this Court.

Error to Circuit Court, Harrison County.

Notice of motion proceeding by the State of West Virginia, for the use, etc, of Howard V. Stout, against Porter M. Rogers and another to recover damages for alleged breach of an injunction bond. To review the judgment, defendants bring error.

Judgment reversed, verdict set aside, and case remanded with direction.

Stathers & Cantrall and Mary Frances Brown, all of Clarksburg, for plaintiffs in error.

Maxwell & Young and Thomas A. White, all of Clarksburg, for defendant in error.

FOX, Judge.

At April rules, 1943, Porter M. Rogers and Grace Blake filed their bill in the Circuit Court of Harrison County against The Empire National Bank, Howard V. Stout and others, the general purpose of which was to enforce an alleged lien on a tract of 340 acres of land in Grant District of said county; and, as incidental thereto, and to the sale of said land, an injunction was prayed for as against Howard V. Stout, inhibiting him from trespassing on said 340 acres of land, and particularly from using and operating a certain ramp which, it was alleged, obstructed the use of a railroad sidetrack located on said land. On April 12, 1943, the injunction prayed for was awarded by an order of the Judge of the Sixteenth Judicial Circuit, to be effective upon the execution of a bond in the penalty of one thousand dollars, conditioned as required therein. On April 13, 1943, the defendants herein, Porter M. Rogers and W. H. Blake, executed such bond, the condition and obligation of which were as follows:

"The condition of the above obligation is such that whereas, on the 12th day of April, 1943, an injunction was awarded by the Honorable Frank C. Haymond, Judge of the 16th Judicial Circuit of West Virginia, in vacation, to the plaintiffs in the above styled cause enjoining and restraining the defendant Howard V. Stout, his agents, servants and employees from continuing the trespasses of said Stout upon the 340 acres, more or less, of land owned by the plaintiffs and fully described in their said bill of complaint and from entering upon said land, or any part thereof, and particularly, from entering upon the side tracks known as the 'slack track' and the 'lump track', likewise fully described in said bill of complaint, and from delivering coal to or loading the same upon either of said tracks, until the further order of said Circuit Court of Harrison County, West Virginia, or the Judge thereof in vacation.

"Now, if the said Porter M. Rogers and Grace Blake shall pay all such costs as maybe awarded against them, and all such damages as shall be incurred or sustained by the said defendant Stout, in case said injunction shall be dissolved, then this obligation to be void; otherwise to remain in full force and effect."

The cause was heard in the Circuit Court of Harrison County, and on March 28, 1945, a decree was entered dissolving the injunction aforesaid, and dismissing plaintiff's bill. This action of the circuit court was affirmed on appeal to this Court, and the final order was entered here on February 10, 1947.

On April 5, 1947, plaintiff filed its notice of motion in the Circuit Court of Harrison County, seeking to recover of the defend-ants, Porter M. Rogers and W. H. Blake, named in said notice, the sum of one thousand dollars, under the obligation of the injunction bond executed by them as aforesaid. The said notice of motion was duly served on the defendants, and notice was given to the defendants therein that plaintiff would on May 5, 1947, move said court for judgment against them "for the sum of One Thousand Dollars which is due, owing and unpaid by you and each of you to the said Stout under and by reason of that certain injunction bond in said sum, dated April 13, 1943, executed by you and each of you, payable to the State of West Virginia, and conditioned for the payment by said Porter W. Rogers and Grace Blake of all such costs as may be awarded against them, and all such damages as shall be incurred or sustained by the said Stout in case of the dissolution of the injunction which was on that date awarded by the Judge of the Circuit Court of Marion County, West Virginia, on motion of the plaintiffs in the chancery cause of Porter M. Rogers and Grace Blake, plaintiffs, against Empire National Bank, Norman S. Elliott, administrator of the estate of Jennie Tangeman, deceased, Charles E. Potter and said Howard V. Stout, defendants, then pending in the Circuit Court of Harrison County, West Virginia, which said injunction was dissolved and the plaintiffs' bill dismissed by the Circuit Court of Harrison County March 28, 1945, effective May 28, 1945, which dissolution was subsequently affirmed by the Supreme Court of Appeals of West Virginia, and a rehearing as requested by the said plaintiff's was refused February 10, 1947, and by reason of the existence and effectiveness of the said injunction through a period of nearly four years the said Howard V. Stout incurred and sustained damages and financial losses to the extent of much more than the full amount of said bond, which said amount you and each of you, by the execution of said bond, promised and contracted to pay to the State of West Virginia for the use and benefit of the said Howard V. Stout if and when said injunction was dissolved and damages for the said amount had accrued to the said Stout."

There was filed with said notice the affidavit of Howard V. Stout, to the effect that there was due and owing to him the sum of one thousand dollars on the demand stated in said notice; but said affidavit did not expand the matter contained in the notice, in respect to stating "distinctly the several items of the plaintiff's claim."

On May 6, 1947, the defendant appeared to the said notice and demurred to, and moved to quash the same. The grounds of the demurrer assigned were: (1) That the notice sets up a claim for damages and not to recover money by action on any contract; (2) that the notice did not show that any damages were incurred or sustained by reason of the injunction and failed to show a breach of the covenants of the bond; and (3) that the notice failed to state a cause of action against the defendants, or either of them. The grounds assigned for the motion to quash were that: (1) The affidavit filed with the notice failed to state distinctly the several items of the plaintiff's claim, as required by Code, 56-2-6; and (2) the said affidavit failed to charge 'that any damages were incurred or sustained by the plaintiff by the "dissolution" of the said injunction. It is apparent that the word "dissolution" in the above paragraph was inadvertently used, and that the word "granting" was intended.

On May 17, 1947, the demurrer and motion to quash aforesaid were overruled, following which the plaintiff, without being called upon so to do, tendered and was granted leave, over objection of the defendant, to file his bill of particulars; and on motion of the plaintiff, the defendants, over their objection, were required to file a specification of their defense.

The bill of particulars filed by the plaintiff was made up of two separate items as follows:

"(a) Attorneys' fees for which the said Howard V. Stout became obligated in procuring dissolution of the injunction of April 13, 1943.....$ 250.00

"(b) Rentals lost by the said Howard V. Stout from L. E. Cleghorn for the privilege of loading over the coal loadingramp involved in the chancery suit of Porter Rogers vs. Empire National Bank and others 66, 000 tons of coal at royalty or rental to be paid by Cleghorn to said Stout of Five Cents (5ø) per ton, the said coal having been produced by Cleghorn from the Clark, Lopez and Pit-cairn leases,................. $3,300.00."

On June 2, 1947, defendants filed their counter-affidavit, denying the claim of plaintiff; also their general issue plea, and special pleas Nos. 1 and 2. Of the two special pleas, one set up performance of the covenants of the bond sued on, and in the other, the payment of any damages sustained. They also filed their specification of defense, in which they make the following denials of the claim of the Plaintiff:

"They deny that Howard V. Stout became obligated for attorneys' fees in securing dissolution of the injunction set forth in the plaintiff's bill of particulars filed herein.

"They deny that said plaintiff lost rentals from L. E. Cleghorn for the privilege of loading over coal loading ramp involved in the chancery suit of Porter M. Rogers vs. The Empire National Bank and others, as set forth in said bill of particulars.

"They deny that said plaintiff was damaged in any particular by the temporary injunction awarded in said suit.

"They deny that they have breached the covenants of bond upon which this proceeding is based."

The issues presented on this record may be reduced to three: (1) Whether, under Code, 56-2-6, a procedure by way of notice of motion for judgment may be employed for the recovery of...