Anderson v. Kanawha Coal Co., 12 W. Va. 526

Anderson v. Kanawha Coal Co.

12 W. Va. 526 | W. Va. | 1878

*534The opinion of the Court was delivered by

Green, President :

The assignment of errors does not claim that the court erred in overruling the demurrer to any of the counts in the declaration, except the first. And on their face they are unobjectionable. The errors relied on by appellant’s counsel in his petition for a writ of error, are syllabus i. that the court ought to have granted a continuance to the defendant after permitting the plaintiff to amend his bill of particulars, by changing the date when one of the bills of exchange fell due from “ May 22, 1874 ” to “May 27, 1874.” The.Code of W. Va. ch. 125, sec. 12, p. 601, expressly provides: “The plaintiff may of right amend his declaration at any time before the appearance oí the defendant, or after such appearance, if substantial justice will be promoted thereby. But if such amendment be made after appearance of the defendant, the court may impose such terms upon the plaintiff as to a continuance of the cause as it may deem just.” It is obvious that substantial justice was promoted by allowing the amendment, and equally obvious from the bill of exceptions that this amendment operated no surprise to the defendant; the court therefore properly permitted the amendment and refused a continuance. The defendant had no right to complain of the action of the court in this matter; the court in agreeing, if the defendant desired, to postpone the trial for three weeks, was more liberal to him than he had any right to expect,

syllabus 2. The next assignment of error is, that the court ought not to have permitted the deputy clerk to amend his certificate to the affidavit by changing the date of it, which was “ June 6,” to its true date “ July 6.” This was a mere clerical error as the evidence clearly shows. All courts possess the inherent power to permit the correction of such errors by any of its officers. The extent to which they exercise this power, is illustrated by the case of Wardsworth v. Miller, 4 Gratt. 97. The court did *535not err in tbe exercise of -this power in this case. The evidence shows that'it would have erred most obviously had it refused to permit the correction of this error, which was clearly, merely clerical.

The next error assigned by the appellant is, that the court ought not to have allowed the deputy clerk to have Syllabus 3 endorsed just before the trial on the attachment bond, it had been acknowledged and approved by him before the issuing of the order of attachment. The appellant has certainly no right to complain of this action of the court, as the order of attachment which is signed by the clerk expressly states, that when it issued the plaintiff had filed affidavit and given bond as required by law. No other certificate of the acknowledgment or approval of the bond was necessary; and no possible prejudice to the defendant could have resulted from the court’s permitting these facts to be endorsed.

The next error assigned is the refusal of the court to permit the filing of the plea of abatement to the attachment which was tendered after verdict and judgment in the case. The plea is set forth at length, in the statement of facts which precedes this opinion. It was obviously faulty as a plea of any kind. It states no fact, Syllabus 5. except that the debt was not due “at the time of the date of the affidavit.” Not that it was not due at the time of the making of the affidavit. It was totally immaterial whether the debt was due or not “at the time of the date of the affidavit,” if it was due at the time of the making of the affidavit, or at the time of the institution of the suit. The general allegation at the end of this plea that “the alleged facts material to the issuing of the attachment in said affidavit contained are not' true,” cannot aid this plea. It amounts really to only the conclusion of law drawn by the pleader from the fact before alleged; and we have seen it was an erroneous conclusion. If it were regarded as an allegation of fact, it would be entirely defective, as on the acknowledged principles of pleading the pleader would have been obliged to *536specify particularly the fact or facts alleged which were not true. The plea was properly rejected. It is also complained that the court erred in permitting the deed of trust of the defendant, and the bills of exchange, to be proved and read in evidence to the jury. I am unable to see any possible objection to the introduction of this evidence. They were clear admissions by the defendant of the justice of the plaintiff’s demand, and were made by the- defendant in the most solemn manner. To have rejected them would have been obvious error. It is also assigned as error, that the court did not quash the attachment on defendant’s motion. The only ground for quashing the attachment, was the said date in the certificate of the affidavit which we have seen was properly permitted by the court to be corrected, and the fact that there had not been originally endorsed on the bond, that it had been acknowledged and approved. This was unnecessary as we have seen, as the order of attachment sufficiently recited, that these things had been done prior to the issuing of this order. The evidence also showed that the proper affidavit had been made and a proper bond acknowledged and approved before the attachment issued, and therefore, the attachment ought not to have been quashed. See Farmers Bank of Va. v. Gittenger, 4 W. Va. 309. The court therefore properly refused to quash the attachment.

And lastly, it is insisted that on the demurrer to the evidence, the court should have rendered judgment for the defendant. There can be no question, but that the evidence fully established every fact necessary to sustain the plaintiff’s action if the existence of the defendant as a corporation was proven. If this fact was sufficiently proven, the evidence clearly established the plaintiff’s right to recover on the common counts, and then even if Jboth special counts had been fatally defective which they were'not, and if the court had erred in not overruling the second special count on the demurrer, still this court would not reverse the judgment, Stolle v. Ætna *537Fire & Marine Insurance Co., 10 W. Va. 546; for such error could have resulted in no injury to the defendant. In most of the States upon issue joined, of the plea of non assumpsit, it is unnecessary to prove the existence of a private corporation, whether it be plaintiff or defendant. It has been so held in Massachusetts, First Parish v. Cole, 3 Pick. 245; in Kentucky, Taylor v. Bank, of Illinois, 7 Monroe 584; in Ohio, Methodist Episcopal Church v. Wood, 5 Ham. 286; Concord v. McIntire, 6 N. H. 528; and Texas Bank v. Simoneton, 2 Tex., 536; and it has been so held also in the Supreme Court of the United States, Conrad v. Atlantic Insurance Co., 1 Peters 450 ; and Society for Propagation &c., v. Pawlet, 4 Peters 501. On the other hand it has been held otherwise, not only in England, see Duch West India Co. v. Henriques, 1 Stra. 612; but in Maryland, Agnew v. Bank of Gettysburg, 2 Har. & G. 493; and in New York, Jackson v. Plumb, 8 Johns. 378; though since this decision the statute law of New York has upon such pleadings rendered it unnecessary to prove the existence Syllabus 0 of the corporation. 1 Denio 451. In Virginia and West’' Virginia, on an issue joined on the plea of non assump-sit, it is necessary to prove the existence of a private corporation, Grays v. T. P. Co., 4 Rand. 578; Reese v. Concochenque Bank 5 Rand. 329; Taylor’s a’dmr v. Bank of Axelandria, 5 Leigh 475 ; Jackson’s adm’r v. Bank of Marietta, 9 Leigh 244; Hart v. Baltimore & Ohio Railroad Company, 6 W. Va. 336.

The question is thus presented: was the existence of the defendant as a corporation sufficiently proven? The most direct evidence produced on this question was the deed of the defendant signed with its name by its secretary, and under the Syllabus 7 of the defendant as a corporation, duly acknowledged by its secretary, and admitted to record in the clerk’s office of the county court of Kanawha, on October 15, 1874, securing among other debts the claims of the plaintiff sued on in this case. This deed recites that the defendant *538corporation formed under the laws of the State of New York,” and recites the names of the stockholders °f more than two thirds of its stock, and also the proceedings of the meeting oí this corporation, which directed the execution of this deed. If this deed be admissible as evidence to prove the existence of the defendant as a corporation, it will clearly establish their existence as such. In the casé of Pilbrow’s A. R. Co., 5 Man Gr. & S. 470, 57 Eng. C. L., in an action of covenant based on a deed purporting to be the deed of a corporation, the court decided not only that the deed was evidence of the existence of the corporation, but the deed reciting that the company had been duly formed, it was conclusive evidence of this fact, the defendant being by it estopped from denying its existence as a corporation. The suit was brought in that case on the deed itself. When the recitals in a deed would estop a party in a suit on the deed, such recitals, when the deed is collateral to the purpose of the action, do not amount to an estoppel, but are nevertheless prima facie evidence of the facts recited. See Carpenter v. Buller, 8 Mee. & W. 209. As in this case, the deed secures the identical debts sued upon, it might well be questioned whether it should be considered as collateral, and whether the defendant was not estopped by it to deny that it was a corporation. But it is unnecessary to consider this question, as admitting that the deed was collateral to the purpose of the action, it would still be prima facie evidence of the truth of its recitals, that the defendant was a corporation, and as no evidence was introduced to refute this presumption, the existence of the defendant as a corporation must be held to have been established, and the judgment of the circuit court on the demurrer was correct.

These are all the errors alleged in the petition for a writ of error, but the appellant’s counsel in his argument insists on other errors. His first position is that the demurrer to the entire declaration should have been *539sustained. He bases his argument to sustain this position, solely on the ground that at the end of the special' counts there is the usual addition “ to the damage of the plaintiff $1,000.00;” the common counts immediately following, beginning in the usual form “and for that, whereas, &c.,” and the declaration ending in the usual form “to the damage of the plaintiff$l,000.00, and therefore he brings suit.” This addition at the end of the special counts, it is claimed, makes them a distinct declaration, and the common counts another distinct declaration, and there being thus two distinct declarations included in what is called the declaration in this case, it is liable to a demurrer as a whole. No authority is cited to sustain this view, and it seems to me to have no solid foundation. These words, unnecessarily added at the end of the special counts, are mere surplusage, and do not vitiate these counts, much less render the whole declaration faulty on general demurrer.

It is also insisted in argument, that the certificates of the affidavit and of the acknowledgment and approval gyiiatus 4 of the bond should have been made in the name of the clerk and not of the deputy; and Pendleton v. Smith, 1 W. Va. 16, is relied on as sustaining this position. That case decides that writs or process must be signed by or in the name of the clerk and not in the name of the deputy clerk. Even if the law had required formal certificates of the affidavit and approval oí the bond in attachment cases to be made before the order of attachment issued, this case would not justify the inference that such certificates must have attached to them the name of the clerk. Even if this had been required and the name of the deputy clerk had been attached .to them, this could at any time, by leave of the court, have been amended, as it would be a clerical error, for unquestionably the deputy has aright to administer the oath and take and approve the bond. See Code of W. Va., chapter 7, section 11, p. 73. But the law does not require any formal certificate to be made of the approval of the *540bond, or of the making of tbe affidavit, and the recital that they had been made in the order oí attachment is alone sufficient. In this case they are so recited, and the order of attachment is signed by, or in the name of the clerk, and not in the name of the deputy clerk. In the absence of proof, that either the affidavit or bond was not such as was required by law, the recital that they had been filed as required by law, on the face of the order of attachment, justified the court in its refusal to quash the attachment.

The order of the circuit court made in vacation and dated July 18, 1874; for a sale of a portion of the property attached, as well as the judgment of the court, rendered on the 25th day. of November, 1874, must be be affirmed; and the defendant in error must recover of the plaintiff in error his costs expended in this Court, and damages according to law.

The other Judges concurred.

Judgment Affirmed.