54 W. Va. 231 | W. Va. | 1903
On the 30th day of April, 1900, The Second National Bank of Morgantown instituted an action of debt in the circuit court of Monongalia County against Alpha Ralphsnyder, George M. Ralphsnyder, I. C. Ralphsnyder, W. M. Ralphsnyder and N. B. Cox for the recoverery of the sum of $625.00 upon the joint and several promissory note executed to said bank by the said defendants, bearing date September 16. 1899, and payable in one hundred and eighty days from the date thereof. At the next rules, the declaration was filed and the common order entered, and at June rules, the defendants, by counsel, appeared and filed a demurrer to the declaration. On the 16th day of June, 1900, the plaintiff as well as the defendants appeared in court and there was a joinder in the demurrer to the declaration and each count
The motion to set aside the judgment and grant a new trial, made long after the close of the term at which the judgment was rendered, was properly overruled. That judgment was nót-eme by default in which a judicial error might be corrected upon motion under section 5 of chapter 134 of the Code, as there had been an appearance by all the defendants. A judgment in a ease in which there has been an appearance is not a judgment by de
In chancery causes, the rule is different. After the overruling of a demurrer and expiration of a rule to answer, a decree entered is appealable only as to matters settled by the demurrer, and is by confession as to errors committed in respect to matters subsequent to the demurrer. Watson v. Wigginton, 28 W. Va. 533. This rule does not apply to actions at law. “The language of the statute in regard to equity cases is essentially different from that in reference to actions at law. Any appearance of the defendant in the latter case prevents the judgment from being by default.” Steenrod v. Railroad Co., 25 W. Va. 133, 137; McGrow v. Roller, 53 W. Va. 75 (44 S. E. 248).
Such being the character of the judgment, a long Hup, of de
If, however, the court erred in that respect or in overruling the demurrer, relief may now be had upon the writ of error, disre
All that is urged against the declaration on demurrer is that it alleges that “The defendants and each of them” promised to pay etc., while the note reads, "We or either of us jointly and sevrally promise” etc., and the omission of the formal words, “For this, to-wit, that heretofore,” usually found in the declaration. It is sufficient to set forth the instrument sued upon according to its legal effect. I Chit, on PI. 305, 367. This is a joint and several note and, therefore, hinds the defendants and each of them, and that is the exact language in which the promise is alleged. This criticism of the declaration is, therefore, wholly groundless.
The next complaint is that only four days were allowed the defendants in which to plead. Of this they cannot complain for the simple reason that it was granted upon their own motion as shown by the order, and, if error was thereby committed, it was induced by the defendants themselves. A party will not be heard to complain of an error which he has invited or induced by his own conduct. 3 Cvc. 242. If this were not a sufficient answer it could be further said that the plaintiffs in error have not been prejudiced by the shortness of the time allowed by the order, for they had from the date of that order, June 16, 1900, until the 20th day of February, 1902, a period of one year and eight months, in which they could have filed their plea if they had desired to do so. About one year after the overruling of the demurrer a continuance was had by consent, from which it appears that neither the court nor the plaintiff unduly urged these defendants to trial. Nearly four months after that, they obtained another continuance upon their own 'motion and still no plea was filed. Under the statute, they are only entiled to one month in which to plead. Code, chapter 125, section 5.
In the brief it is insisted that the demurrer stands legally as if it liad not been passed upon by the court for the reason that, at the time it was overruled, the judge of the' court was ill and not in attendance and lion. John W. Mason was sitting as judge in his place, and between the date of the overruling of the demurrer and the day on which the defendants were required to plead, the regular judge died. Whether the orders were signed up from day to day is not stated, but it is said that the special judge had no authority to sign the records of the previous day after the death of the regular judge. None of these facts appear in the record, but, if they did, it does not follow that the demurrer is not overruled. The rendition of judgment, in legal effect, overruled the demurrer. State v. Hall, 40 W. Va. 455; Fleming v. Oil Co., 37 W. Va. 645; Hood v. Maxwell, 1 W. Va. 219.
Did the court err in refusing a continuance? The record shows no formal motion for a continuance. It discloses nothing
Under the circumtances, it cannot be said that the circuit court has abused the discretion vested in it concerning continuances. If, upon the application of parties who have been so long in default and so grossly negligent of their interests and apparently so unwilling to assert their defense and come to an issue, an appellate court will reverse a judgment founded upon such negligence and apparent obstinacy, the trial courts will be compelled in the future to proceed with great caution in forcing unwilling litigants to submit their cases.
Apprehending and forestalling the possible assumption on the part of counsel of the oversight by the court of the representation contained in the affidavits filed on the motion for a new trial concerning an alleged pending compromise as the reason for the failure to file a plea, it is noted here that no pending compromise or any other matter by way of excuse for failure to file the pica was brought to the attention of the court at the time it refused the continuance. On the ground of surprise, the pendency of a compromise might have been urged even at that late day as ground for continuance but it was not, and it was too late after the adjournment, of the term to make it available for a continuance or the setting aside of the judgment and it cannot be urged here for the reason that, in order to be available here, it must have been in the record at the time the court below took the action complained of so as to make that action erroneous. This Court cannot grant relief upon matter sought to be introduced into the redord long after the judgment had been rendered, and the record'of the cause in the court below had been so thoroughly completed and made final that it could not there bo altered. This Court has no original jurisdiction of bills in equity for relief against judgments on the ground of surprise, accident or mis
The action of the court in overruling the motion to quash the execution was excepted to and assigned as a ground of error in the petition for the writ of error, but nothing is said on that subject in the brief from which it may bo inferred that these assignments have been abandoned. However, nothing indicating any error in this connection appears in the record. The execution is dated May 6, 190.2, more than sixty days after judgment, with interest thereon from the date thereof and for the costs which the clerk táxed at $43.30. The costs were properly inserted because the judgment gave costs, leaving the taxation thereof to the clerk which is usual and proper.
For the reasons aforesaid, the judgments complained of are affirmed.
Affirmed.