The Bank Of Gauley v. Osenton
| Decision Date | 17 October 1922 |
| Citation | 92 W.Va. 1 |
| Parties | The Bank of Gauley v. C. W. Osenton, Executor. |
| Court | West Virginia Supreme Court |
1. Evidence Whether Entered by Consent of Parties Determined From, Face of Record.
"Whether a judgment was entered by consent of the parties is determined from the face of the record, (p. 4).
2. Samk Where Record Shows Obtained.
A judgment which the record shows was obtained by default, cannot by affidavit be shown to be a consent-judgment. (p. 4).
3. Judgment Where Form, for Default Judgment was Agreed to by Counsel, it was Default, and Not Consent Judgment.
Where an order form for judgment by default; is prepared by counsel for plaintiff, presented to the attorney for the defendant, the abbreviation endorsed on the back of the form, followed by the signatures of the attorneys for both parties, and entered without any notation of consent on the face of the record, and there is no appearance of the defendant noted, the judgment is a judgment by default and not a consent-judgment, (p. 6).
4. Samk Court May Correct Judgment During Term at Which Rendered or on Motion Then Made and Continued to Subsequent Term.
During the term, at which a judgment is entered, the court, on motion of one of the parties, or on its own motion, may make any correction of the judgment, either as to matters of fact or law and where a party to the action, during the term, moves to correct the judgment, and the motion, by order, is continued to a subsequent term, to be then heard and determined, the court may at a subsequent term make any order therein which it might have made during the term at which the judgment was entered, (p. 6).
5. Executors and Administrators Contract for Benefit of Estate by Executor Without Authority Binds Him Personally. Generally, an executor can not charge his decedent's estate by any contracts made by himself, although for the benefit ot the estate, unless he is authoried to do so by will; and such contracts, if made without authority, bind the executor in his individual capacity only. (p. 7).
Error to Circuit Court, Fayette County.
Action by the Bank of Gauley against C. W. Osenton, executor, etc. From a judgment against defendant personally, he brings error.
Judgment affirmed.
W. L. Lee, for plaintiff in error.
Dillon & Nuckolls, for defendant in error.
Defendant, C. W. Osenton, obtained a writ of error to the judgment of the circuit court of Fayette County which was rendered against him personally on a note made by him in favor of the Bank of Gauley, and signed "C. W. Osenton, Executor of W. H. Hill."
The action was by way of notice of motion for judgment and was returnable April 20, 1921. The notice ran "To C. W. Osenton, Executor of the Estate of W. H. Hill, deceased." On the return day an order was entered "that the plaintiff, the Bank of Gauley, do recover of and from the said defendant, C. W. Osenton, Executor of the estate of W. H. Hill, deceased, to be satisfied out of the goods and chattels of the said W. H. Hill, deceased, in the hands of the said C. W. Osenton, as such executor, the sum of $4,997.65," with interest and costs. The judgment shows on its face that it was taken by default.
At the same term of court, on May 7, 1921, the plaintiff, under provisions of section 5, chapter 134, Code, moved the court to correct the judgment so as to make it a personal judgment against C. W. Osenton, instead of a judgment against him in his representative capacity. Notice of this motion was served on defendant, and on the return day, defendant objected to the filing of the motion which was in writing, but the court overruled his objection, filed it and it was continued to be heard at a special or regular term. It was heard at a subsequent term and on the hearing, plaintiff and defendant both filed certain affidavits. From these it appears that on April 20, 1921, the return day of the original notice of motion for judgment, plaintiff's attorney prepared an order form taking judgment against the defendant personally, presented the form to attorney for defendant who objected to it because it was a form of personal judgment against defendant, instead of being against him in his representative capacity, and plaintiff's attorney being then of opinion that defendant was not personally liable on the note sued on, agreed to change the order to the form in which it was entered, this was done and the form was marked on the back with the abbreviation "0. K." and underneath this abbreviation, counsel for plaintiff and defendant signed their names; the order was then taken by counsel for plaintiff, presented to the court and was entered by the court in the absence of counsel for defendant. Plaintiff's counsel later investigated the law upon the matter and became satisfied that the Bank was entitled to a personal judgment against defendant; the motion to correct the judgment then followed.
Tt further appears that the moneys borrowed from the Bank for which the note was given were borrowed for the purpose of and used by the executor in paying taxes and other necessary expenses to protect his decedent's estate. The original note was for $600, and was executed in 1909. The amount was increased from time to time as necessity required and defendant promised the Bank to pay the debt from money coming into his hands as executor, and that as shown by reports filed by him as executor in a certain chancery suit he received since the original note was executed $17,399.68, paid out $15,982.90, but paid no part of the moneys borrowed from the Bank. The affidavit of F. H. Miller, who was cashier of the Bank during the whole of the transactions shows that the money would not have been loaned had he known that the note would not have been binding on the estate of the deceased; at the time the affidavit was made he had ceased to be cashier of the Bank; he insists however that the Bank is entitled to a personal judgment against the defendant. We think it clearly appears that both parties were of opinion when the money was borrowed and when the original judgment was entered that the note was an obligation binding on the estate and not the personal obligation of the defendant.
On February 14, 1922, at a subsequent term, the court, after consideration of the motion, without setting aside the former judgment, entered an order correcting and modifying it, so as to make it a. judgment against C. W. Osenton, personally, instead of a judgment against him in his representative capacity, and he assigns error.
First. Defendant urges that the court had no right to make the correction because the original judgment was a consent-judgment. The order however shows on its face that it was taken by default, the judgment reciting: "And thereupon the plaintiff demanding a trial the defendant still failing to appear or plead to this action, though now thrice called in open court," etc. It nowhere shows that the defendant made any appearance, and he certainly could not give his consent of record without putting in an appearance in some way. Tt has been held by this court that the character of a decree, that is whether it is a consent-decree or not, is to be determined from the face of the decree; said Judge Green, in Morris v. Peyton, 29 W. Va. 211, 11 S. E. 201,
In the case of Hounshell v. Hounshell, 116 Va. 675, 82
S. E. 689, cited by counsel for defendant, the court held an
order to be a consent-decree where the words "Agreed to" followed by the signatures of counsel for all the parties, and then by the signature of the judge, appeared on the face of the decree. We do not have the record in that case before us, but the words "Agreed to" followed by the signatures were doubtless entered on the order book by the clerk, and became a part of the permanent record. In the present case the abbreviation "0....
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Webber v. Offhaus
...a judgment or a decree was entered by default is determined by the record, which cannot be varied by an affidavit. Bank of Gauley v. Osenton, 92 W.Va. 1, 114 S.E. 435. The principal errors in the decree of November 19, 1947, assigned by the defendant and alleged to be appearent from the fac......
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...his official capacity or the estate of his decedent but instead was binding on him only in his private capacity. See Bank of Gauley v. Osenton, 92 W.Va. 1, 114 S.E. 435; Thurmond v. Guyan Valley Coal Company, 85 W.Va. 501, 102 S.E. 221; Wick v. Dawson, 48 W.Va. 469, 37 S.E. The liability he......
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Blair v. Dickinson, 10399
...458-464. The consent, however, must appear from the face of the record. Shinn v. Shinn, 105 W.Va. 246, 142 S.E. 63; Bank of Gauley v. Osenton, 92 W.Va. 1, 114 S.E. 435. 'The consent should be so clear and specific in terms that no mistake can arise respecting the concurrence of the parties ......
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Mcrary v. Mcrary
...may be made. 49 C.J.S., Judgments, § 173; Placer County v. Freeman, 149 Cal. 738, 87 P. 628; Fall v. Eastin, supra; Bank of Gauley v. Osenton, 92 W.Va. 1, 114 S.E. 435. "O.K." means "correct, " "all right, " "approved." Keel v. Wynne, 210 N.C. 426, 187 S.E. 571. When endorsed on the judgmen......