41 W. Va. 550 | W. Va. | 1895
This was an action of trespass on the case, in assumpsit, brought on the 25th day of December, 1893, in the Circuit Court of Mercer county, by the Bank of Princeton, a corporation suing for tbe use and benefit of the Princeton Banking Company, against William A. French, N. J. French, J. R. Johnston, Charles D. French, A. C. French and David A. Johnston; and the plaintiff filed with its declaration the following affidavit:
*552 “ West Virginia, Mercer county, to wit: Bank of Princeton, a Corporation, Who Sues for the Use and Benefit of the Princeton Banking Company, a Corporation, Plaintiff, vs. William A. French, N. J. French, J. R. Johnston, Charles D. French, A. C. French, and David A. Johnston, Defendants. PI. Scott, being first duly sworn, says that he is the cashier and chief accounting officer of Bank of Princeton, a corporation, and the Princeton Banking Company, a corporation, named as parties plaintiff in the foregoing styled suit, and that there is due and unpaid to the plaintiff in said action, as he verily believes, from the defendants to said action, upon the demands stated in the declaration in the said action, including principal and interest to the date of this affidavit, after deducting all payments, credits, and set-offs made by the said defendants, and to which they are entitled, the sum of $2,792.09. Given under my hand this the 1st day of January, 1894. II. Scott.
“Taken, subscribed, and sworn to before me in Mercer county, W. Va., on this the 1st day of January, 1894. S. V. Straley, N. P.”
On the 23d day of February, 1894, an order was entered in said case in said circuit court, reciting that the summons in said case had been executed upon the defendant David A. Johnston, and returned not executedon other defendants, because not found, and the plaintiff having filed, as required by law, the affidavit of II. Scott, which appears above, with its declaration in this case, and the defendant failing to appear, the action, as to all of the defendants except the said David A. Johnston, was, on motion of the plaintiff', allowed to abate, and judgment was rendered against said David A. Johnston for the sum of two thous- and seven hundred and ninety two dollars and nine cents, with legal interest thereon from the 1st day of January, 1894, the date of the said affidavit, and costs. At a subsequent day of the same term of the court the defendant David A. Johnston appeared by his attorney, and moved the court to set aside the judgment which was rendered against him in said case on a former day of the term, and permit him to plead in the case, and filed in support o
“West Virginia, MerccrCounty, towit: Bank of Princeton, a Corporation, Who Sues for the Use and Benefit of the Princeton Hanking Company, a Corporation, Plaintiff, vs. William A. French, N. J. French, J. R. Johnston, Charles D. French, N. C. French and David A. Johnston, Defendants. In assumpsit. Affidavit. David A. Johnston, one of the defendants in the above action, being duly sworn, says that in the said action, as he is informed, a judgment has been rendered against him by the circuit court of Mercer county, in favor of the plaintiff, for the sum of two thousand seven hundred and ninety two dollars and nine cents, with legal interest thereon from the 1st day of January, 1894; that said judgment was rendered at the present term of the circuit court of Mercer county, W. Va. Affiant further says that there is not, as he verily believes, any sum due from him to the plaintiff upon the demand or demands stated in the plaintiff’s declaration, and for which judgment has been rendered as aforesaid in said action. Affiant further says that he has been unable to attend the said court, at the present term (February, 1894) thereof, on account of sickness; that he is still unade to get to the court house of Mercer county; and that he desires that the said judgment entered against him in said action may be set aside, in order that ho (affiant) may have an opportunity to make defense to said action. David A. Johnston.
“Taken, sworn to, and subscribed before me this 2d day of March, 1894, in Mercer county, W. Va. L. L. Hearn, J.P.”
Affidavit ofC. D. French:
“0. D. French, being sworn, says that since the present term of the circuit court, notv in session at Princeton, W. Va., began, he saw Martin Williams on his way to Princeton, W. Va., to attend the case of David A. Johnston in said court, in which a judgment has been rendered at this term against the said Johnston; that said Williams wont as far as Ingleside, W. Va., a distance of about 6 miles from Princeton, but that he there turned*554 back, having heard that small pox was at Princeton, W. Va.;that at said date the said Johnston was too dangerously ill to attend to any business at all, and that he is now too unwell to leave his room, and has so continued for several weeks; that it is doubtful whether he ought to be approached on business at this date. Chas. D. French.
“Taken, subscribed, and sworn to before mo in Mercer county, W. Va.. this March 2d, 1894. L. L. Hearn, J. P.”
Affidavit of J. Boyd, M. D.:
“West Virginia, Mercer County, to wit: Bank of Princeton, a Corporation, Who Sues for the Benefit of the Princeton Banking Company, a Corporation, Plaintiff, vs. William A. French, N. J. French, J. II. Johnston, Charles I). French, N. C. French, and David A. Johnston, Defendants. In As-sumpsit. Affidavit. John Boyd, M. D., being sworn, says that he is a regular, practicing physician in the county of Mercer, W. Va.; that as such he has been regularly waiting on and attending upon David A. Johnston, who has been ill with pneumonia since January 29, 1894, and who had had a severe attack of la grippe, for about six week’s duration, just prior to his taking the pneumonia; that he also attended and waited upon him during that time; that the said David A. Johnston was greatly weakened and prostrated at the date he took the pneumonia; that he grew worse from day to day, until he became very dangerously ill; that lie thus continued for some time, and was in no condition to transact any business of any character at all; that it would have been very dangerous to him to undertake the transaction of any business matters; that I would not have permitted any one to then have approached him on business, and that he has not been in condition to transact any business at all beyond this week, and even now it is not advisable that lie attend to any business, or be approached on the same; that he is still confined to his room; that at no time since the present sitting of the circuit court at Princeton, W. Va., beyond this week, ought eontrover ted matters of his business to have been discussed with him; that to have done so might have caused a relapse to him, and even to have endangered his final recovery of his present sickness, and even now his business ought not to be discussed with him. John Boyd, M. D.
*555 “Sworn to and subscribed before me March 2, 1894. L. L. Hearn, J. P.”
The plaintiff, by his attorney, resisted said motion, and demanded the right to cross-examine the said D. A. Johnston as to the matters set up in bis said affidavit; and it appearing from the affidavit of the said D. A. Johnston and John Boyd, M.D.,that said D. A. Johnston was unable, on account of sickness, to be present in court at that term, the court ordered that said affidavits be filed, and made a part of the record in said case, and that said motion be docketed, and the consideration thereof continued until the next term of said court.
At the next term of the court, on the 28th day of May, 1894, it appears that the parties came by their attorneys, and the plaintiff' further resisted the motion made at the last term by the defendant David A. Johnston to set aside the judgment entered in favor of the plaintiff at the last term, and moved the court to strike out the affidavits filed therein at the last term of the court by the defendant David A. Johnston, of himself and others; and the said defendant David A. Johnston tendered his pleas Nos. 1, 2, 3, 4, and 5, to the filing of which the plaintiff' objected, and the court sustained said objection, and refused to permit said pleas to be tiled, and also refused to set aside the judgment entered therein at the last term of said court in favor of the plaintiff'against the defendant David A. Johnston, upon the ground that no plea was filed therein, nor offered to be filed, at the last term of the court, with the affidavits of said Johnston and others, and that the court has no jurisdiction over said judgment at this term, or authority to set aside said judgment, to which ruling of the court the said Johnston excepted, and applied for and obtained this writ of error.
The first assignment of error we shall consider is that the order of March 1, 1894, in effect, inhibited ihe defendant Johnston from pleading before the next term of court; that he should have had leave to plead before a continuance was granted. Now, when we refer again to the order we find that the defendant D. A. Johnston, at the same term at which the judgment was rendered against him,
Now, let us return to and consider the action of the
The defendant Johnston should yet be allowed to plead to issue, if he so desires. The judgment should be set aside, and the case proceeded in to judgment. Judgment reversed, with costs.