60 W. Va. 557 | W. Va. | 1906
In the circuit court of Tyler county, P. H. Anderson recovered a judgment, on motion, after notice, against A. T. Smith, for the sum of $976.23, with interest, to which judgment Smith obtained a writ of error.
The debt is evidenced by a promissory note, reading as follows:
“Friendly, W. Va., April 7th, 1904. Ninety days after date I promise to pay to the order of P. H. Anderson, Nine Hundred Fifty Four Dollars. '$9.54.00. Value received negotiable and payable at with interest. The First National Bank of Friendly, W. Va. Ed. K. Prince.”
The following endorsement appears on the back of it:
Endeavoring to proceed under section 6 of chapter 121 of the Code, the plaintiff caused the following notice to be served on Smith;
“To Ed R. Prince and A. T. Smith: You are hereby notified that I will move the Circuit Court of Tyler County on the 9th day of August, being the first day of the next regular term of said Circuit Court, for judgment against you for the sum of nine hundred fifty four dollars ($954), with interest thereon from the 7th day of April, 1904, protest fees $1.25, and costs of such motion on a certain note in writing executed by you, Ed R. Prince, on the 7th day of April, 1904, and payable tó me, ninety (90) days after the date thereof, the date being the day and year last herein named, and in the sum of nine' hundred fifty four dollars ($954) with interest from its date, negotiable and payable at the First National Bank of Friendly, W. Va. At which time and place you may attend and show cause against such motion if you can. Respectfully, P. H. Anderson, Assignee.”
On the 10th day of August, 1904, the notice was docketed, and on the 17th day of the same month, Smith appeared and moved to quash the notice, charging against it insufficiency in law. The order recites that, before so moving he craved oyer of the note and had the same read to him. The court overruled the motion and the dafendant plead that” he did not owe the note and protest fee, for the amounts of which the plaintiff demanded judgment, and issue having been joined the case was continued until August 19,1904, when the parties waiving a jury, the court heard the evidence and rendered the judgment complained of. No service of the notice on Prince having been returned, the order of August 17th recites abatement of the action as to him.
As the notice fails to connect Smith with the note otherwise' than to apprise him of an intention to take judgment against him on it, the motion to quash should have been sustained. It does not aver that it is his note or that he signed, made or endorsed it, or indicate how he became liable to Anderson by reason of it.
It is unnecessary to repeat here what has been so often
According to all these authorities, the purpose of the notice is to acquaint the defendant with the grounds on which he is proceeded against, and must be so plain that he cannot mistake the object of the motion. In proceeding by notice, the formalities of summons, rules and declarations are dispensed with. The notice takes the place of the summons and declaration. In Shepherd v. Brown, Judge Green treats it as a pleading. So regarded, it should indicate, with reasonable certainty upon what obligation, demand or account judgment is sought; and, to say that it must show, in some intelligent way, that the demand or obligation, which it is proposed to reduce to judgment, is that of the defendant, is to require but little of the plaintiff and give the defendant the least protection that is consistent with safety to his interest.
Escape from this difficulty is attempted by reliance upon the recital of the demand of oyer of the note. On the authority of Meredith's Admr. v. Duval, 1 Munf. 77; Van Matre v. Giles, 1 Rob. 343; Jarret's Admr. v. Jarret, 7 Leigh 91; and Thompson's Exrs. v. Boggs, 8 W. Va. 70, it is contended that the reading of the note made it a part of the notice and was tantamount to an amendment. This position is untenable. “Profert cannot be made nor oyer demanded unless the declaration avers a sealed instrument.” Riley v. Yost, 58 W. Va. 213. In all the cases above mentioned the actions were predicated on sealed instruments. The reading of the note, on oyer demanded, did not make it a part of the notice.
Other assignments of error are as follows: (1) failure to return the notice to the office of the clerk of the circuit court; (2) failure to docket the notice before the commencement of the term; (3) failure to docket it on the 9th day of August,
Por the first there is no basis. The record shows the notice was filed in the clerk’s office more than twenty days before the date named in it for the making of the motion. If the second and third are irregularities, they were waived by failure to ask a continuance. They constitute no ground for abatement or the quashing of the notice. Knox v. Horner, 58 W. Va. 136.
Addition of the word “Assignee” to the signature of Anderson in the notice could not have mislead the defendant. In view of the allegation in the notice that the note on which judgment would be asked had been executed, by Ed E. Prince and made payable to Anderson. Smith must have known the plaintiff, by the use of the word “Assignee,” had merely misdescribed himself. He could not have been both payee and assignee. At any rate, the use of that word did not mis-describe the note. Nor can we say the plaintiff sued as as-signee, for there is no allegation in the notice that he held the note as assignee.
Por the error hereinbefore noted, the judgment must be reversed, the notice quashed, the motion dismissed and judgment rendered here in favor of the plaintiff in error for his costs, both in this Court and in the court below, all of which will be certified.
Reversed. Notice Quashed.
