57 W. Va. 599 | W. Va. | 1905
This is an action of debt from the circuit court of Summers county, on a negotiable note made by S. S. Long, dated the 28th day of November, 1890, payable six months after date to J. M. Orcutt, calling for $125.00, endorsed by Or-cutt to plaintiff Bradlejn Process was issued on the 29th of March, 1895, returnable to April rules, following. At, April rules, plaintiff’s declaration was filed and conditional
The defendant claims that his appearance and suggestion of the non-residence of the plaintiff, and the taking of the rule for security for costs against him, prevented the finality of the office judgment on the last day of the succeeding term. While defendant appeared for the purposes mentioned, he did not further appear to the action at that term, and demur, plead or otherwise make defense. He had a perfect right to demur or.plead at that term, but did not do so. He did nothing to prevent the operation of the statute rendering the office judgment final on the last day of that term. The office judg
The finality of the office judgment not being in any way prevented, this case is governed by the case of Ma/rstiTler v. Ward, 52 W. Va. 74, and the principles there announced. The first point of the syllabus of that case, is: “Under section 46, chapter 125, Code of 1899, an office judgment in an action on contract, where there is no order for inquiry of damages, becomes final, so as to bar a defense, on the last day of the next term of the circuit court, after the entry of such office judgment.” See also Hutton v. Holt, 52 W. Va. 672, and Quesenberry v. Peoples Building L. & S. Ass’n., 44 W. Va. 512. This law is conclusive of the question involved here. The lower court should have sustained the motion of the plaintiff to strike out all the pleas filed by the defendant, because the office judgment became final on the last day of the May term, 1895. Instead of doing so, a trial by jury was had, a verdict for defendant rendered, a motion to set it aside overruled, and a judgment was entered for defendant.
Under another clause of section 46, chapter 125 of the Code, if the plaintiff has not filed the affidavit therein referred to, with his declaration, and the office judgment be not set aside, the judgment shall not be entered by the court until the plaintiff files such affidavit or proves his case in open court. The note sued on was offered in evidence to the jury in open court to prove plaintiff’s case, and the note did prove plaintiff’s case, no pleas being admissible to contradict the note or put its genuineness in issue. Therefore, the court
It is unnecessary to notice any other question raised by the record in this case.
For the reasons stated, the judgment of the circuit court of Summers county entered in this action, is reversed, and the verdict of the jury set aside; and this Court proceeding to enter such judgment as the circuit court should have entered, it is ordered that the motion of the plaintiff to strike out the pleas of the defendant, be sustained, and that the plaintiff do recover from the defendant the amount of the note sued on, with interest.
Reversed.