Stephenson v. Ashburn, 10400

Citation70 S.E.2d 585,137 W.Va. 141
Decision Date20 May 1952
Docket NumberNo. 10400,10400
PartiesSTEPHENSON, v. ASHBURN. Case
CourtSupreme Court of West Virginia

Syllabus by the Court.

1. Where a defendant appears and demands a trial by jury, in a case wherein he is entitled to a jury, and such a trial is not later waived, a judgment entered against him by default is void, and may be attacked at any time, directly or collaterally.

2. 'In this state the rule is that 'a nunc pro tunc order can only be made upon showing some entry or memorandum upon the records or quasi records of the court, and that parol evidence of the rendition of the judgment and its terms cannot be received, at least until such entry or memorandum is produced.'' Point 2, syllabus, Stannard Supply Co. v. Delmar [Co.] 110 W.Va. 560 .

Haymond Maxwell, Sr., Clarksburg, Handlan & Overton, Parkersburg, for appellant.

Wm. Bruce Hoff, Prkersburg, for appellee.

GIVEN, Judge.

On November 13, 1928, upon notice of motion for judgment in the Circuit Court of Wood County, George P. Ashburn, Elnora Ashburn, Earl C. Linger and Leora V. Linger obtained a judgment against K. B. Stephenson for $6,773.77. By assignment George P. Ashburn became owner of the interests of the Linggers in the judgment. Various attempts were made by the Ashburns to collect the judgment, by execution and otherwise, without success and, on August 29, 1949, a summons was issued directing Stephenson to appear before a commissioner in chancery to make answer to interrogatories. Before the hearing Stephenson instituted a chancery proceeding praying that the Ashburns be enjoined from further attempting to collect the judgment, contending that the judgment was void for the reason that after he had demanded a jury trial of the issue in the notice of motion for judgment proceeding a default judgment had been entered against him. Ashburn answered the bill of complaint and set up a claim for affirmative relief, alleging that the judgment was not, in fact, a default judgment, but that the action of the clerk in entering the judgment as a default judgment was a clerical mistake. The prayer of the cross-bill was that the record of the notice of motion for judgment proceeding 'be changed and corrected to show the presence in court at the time of the hearing of said notice of motion for judgment, of the said K. B. Stephenson and his attorney, * * *.' The circuit court sustained a demurrer to the answer and cross-bill, held the judgment void and granted the injunction. This Court granted an appeal to George P. Ashburn.

An order entered in the notice of motion for judgment proceeding discloses that on the return day of the notice, May 19, 1928, Stephenson appeared and 'filed counter-affidavit and demurrer to the notice filed in this cause, and moved the Court to quash the same, which motion being argued by counsel and maturely considered by the Court is overruled. Thereupon defendant for plea says he did not assume upon himself in manner and form as in plaintiffs' notice alleged, and of this he puts himself upon the country and the plaintiffs doth the like and issue thereon is joined.' Nothing further was done in the proceeding until the regular October, 1928, term of court, at which term on November 13, 1928, the following order was entered: 'This day came the plaintiff, by counsel, and the defendant though duly summoned and being solemnly called, came not. Thereupon the Court in lieu of a jury proceeded to examine evidence and affidavit filed by plaintiff, and ascertain the amount, if any, plaintiff is entitled to recover in this action, and doth ascertain the same to be $6773.77, with interest thereon from April 27th, 1928, until paid. Therefore it is considered by the Court that the plaintiffs recover against the defendant said sum of $6773.77 with interest thereon as aforesaid, together with their costs in this behalf expended.' There exists no record, quasi record or memorandum indicating any intention of the court to enter any judgment other than the one just quoted.

Stephenson contends that the judgment is void for the reason that, after having filed a plea of the general issue and after having put himself upon the country, the court had no power or jurisdiction to enter a judgment in the proceeding, in absence of a waiver of a trial by jury, entered of record. The position of Ashburn is that, though the judgment, on the face of the record, may be invalid, the invalidity results from a clerical mistake of the clerk of the court, and that the mistake may be corrected by a nunc pro tunc order, with the aid of parol evidence.

The controlling question relates to the validity of the judgment under attack. If it is void little more need be said, inasmuch as a judgment void for the reason that the court entering it had no jurisdiction to do so can not be considered as having resulted from a clerical mistake and can, in no manner, be corrected by a nunc pro tunc order. A void order is not a verity. It can be attacked at any time, directly or collaterally. Matheny v. Greider, 115 W.Va. 763, 177 S.E. 769; Jennings v. Judge, 56 W.Va. 146, 49 S.E. 23; 49 C.J.S., Judgments, § 421; 31 Am.Jur., Judgments, Sections 597 and 604.

Section 13 of Article III of the State Constitution provides: 'In suits at common law, where the value in controversy exceeds twenty dollars exclusive of interest and costs, the right of trial by jury, if required by either party, shall be preserved; * * *.' In Matheny v. Greider, supra, Point 1, syllabus, this Court held: 'The filing of a plea of the general issue is tantamount to demanding trial of the action by jury.' Of course a trial by jury may be waived, but the waiver must appear of record. Chapoter 116, Section 29, 1923 Code; Code, 1931, Chapter 56, Article 6, Section 11; Lipscomb's Adm'r v. Condon, 56 W.Va. 416, 49 S.E. 392, 67 L.R.A. 670, 107 Am.St.Rep. 938; King v. Burdett, 12 W.Va. 688. In Salzer v. Schwartz, 88 W.Va. 569, 107 S.E. 298, 299, the Court, in its opinion, stated: 'The waiver need not be in express words; but if it appears from the record that such waiver was intended by conduct of the parties it is sufficient. But we repeat that this must be shown from the record. If the record be silent no waiver can be inferred. As was said by Judge Poffenbarger in Lipscomb's Adm'r v. Condon, 56 W.Va. 445, 49 S.E. 392, 67 L.R.A. 670: 'That a jury may be waived is beyond doubt, but the Legislature has seen fit to prescribe the manner in which such waiver shall be shown, namely, by consent of the parties or their counsel entered of record. * * *.'' Uupon authority of these decisions we must necessarily hold that Stephenson did not waiver trial by jury.

It is clear, therefore, that the Constitution preserved unto Stephenson the right to a jury trial; that he demanded such a trial; that no waiver thereof was entered of record; and that on the face of the record he was denied a jury trial. In the Matheny case, Point 2, syllabus, this Court held: 'When a trial by jury has been demanded in an action involving more than $20, the impaneling of a jury to try the issue is a jurisdictional requirement, and a judgment rendered without complying with it is void.' In the opinion in the Matheny case the Court stated: 'Section 13, article 3, of our Constitution, gives the absolute right to trial by jury when the matter in controversy exceeds $20, provided that right is asserted. We believe that this right would not be adequately protected were we to hold that it, not being accorded in a proper case, was merely...

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25 cases
  • Bennett v. Bennett
    • United States
    • West Virginia Supreme Court
    • 27 Mayo 1952
    ...will be found in 49 C.J.S., Judgments, § 421, and in 31 Am.Jur., Judgments, Sections 597 and 604. See also Code, 48-2-11; Stephenson v. Ashburn, W.Va., 70 S.E.2d 585; Cable v. Cable, 132 W.Va. 620, 53 S.E.2d Further contentions are made to the effect that the divorce decree entered in the C......
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    • West Virginia Supreme Court
    • 30 Abril 1957
    ...of proper allegations. This is clearly and unequivocally held in Smith v. Johnson, 44 W.Va. 278, 29 S.E. 509. See Stephenson v. Ashburn, 137 W.Va. 141, 70 S.E.2d 585; Bennett v. Bennett, 137 W.Va. 179, 70 S.E.2d 894; Cable v. Cable, 132 W.Va. 620, 53 S.E.2d 637; Chilhowie Lumber Co. v. Lanc......
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    • 18 Junio 1957
    ...456, certiorari denied 349 U.S. 940, 75 S.Ct. 786, 99 L.Ed. 1268; Bennett v. Bennett, 137 W.Va. 179, 70 S.E.2d 894; Stephenson v. Ashburn, 137 W.Va. 141, 70 S.E.2d 585; Cable v. Cable, 132 W.Va. 620, 53 S.E.2d 637; Evans v. Hale, 131 W.Va. 808, 50 S.E.2d 682; Pettry v. Hedrick, 124 W.Va. 11......
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