77 W. Va. 26 | W. Va. | 1915
This action was begun against defendant, a non-resident, by attachment and service of process by publication. Defendant having thereafter appeared specially for that purpose the court on her motion quashed the attachment and the order of publication against her. Thereupon instead of withdrawing from the case and the further jurisdiction of the court, defendant’s counsel moved the court to dismiss the case from the docket, which motion the court overruled, assigning, in its order, as the only ground therefor, that defendant had. taken depositions in the case, on notice to plaintiff, which had been returned and endorsed filed by the clerk on January 24, 1913.
The first point of error made is that the. court erred in overruling defendant’s motion to dismiss the case from tho docket. The only argument offered against this ruling is that the reason1 given by the court for its action is not a good one,namely, that defendant had before appearance in the case taken and filed depositions. If the judgment was right for other reasons it is immaterial whether the reason assigned by the court is a good one or not. Our judgment is that the motion was properly overruled, because after the court quashed the attachment and the order of publication against defendant, plaintiff had the undoubted right to retain the case on the docket for new process. To have dismissed the action from the docket without according to him this right would have been error. Park L. & I. Co. v. Lane, 106 Va. 304, 308; Goolsby &c. v. St. John, 25 Grat. 146, 160. According to these decisions, though the original attachment and the return on -the original process to answer the action may have been properly quashed, plaintiff was entitled to retain the action on the docket for new process and attachment, and it would
The question then is did defendant submit herself to the jurisdiction of the court by entering her motion to dismiss the case from the docket? We think she did. Our decisions say that appearance by defendant for any other purpose than to take advantage of the defective execution or non-execution of the process against him amounts to a general appearance, and waiver of process. 1 Ency. Dig. Va. & W. Va. Rep. 674, et seq. Our conclusion is that no error was committed in denying defendant’s motion to dismiss. Franklin v. Lumber Co., 66 W. Va. 164, 66 S. E. 225; Grubb v. Starkey, 90 Va. 831, 20 S. E. 784; Order of United Commercial Travelers v. Bell, 184 Fed. 298, 106 C. C. A. 440; Sampson v. Northwestern Nat. Life Insurance Co., 85 Neb. 319, 123 N. W. 302.
The next point of error made by defendant is that the court erroneously overruled her demurrer to the declaration and each count thereof. The declaration .consists of the common counts of indebitatus assumpsit, and a special count counting upon an alleged assignment by one W. P. Samples to the plaintiff of an account for work and services rendered by Samples to the defendant. The point made against the first or common indebitatus assumpsit counts is, that it is neither averred that defendant was originally indebted to Samples, instead of Danser, and then to Danser by virtue of such assignment, so as to admit proof of such assignment, nor is there any averment of á promise by defendant to pay either Samples or the plaintiff on request the several sums of money so alleged to be due, an essential averment in all actions of assumpsit founded on promise. Our opinion is that if these counts aver a promise of defendant to pay the plaintiff the several sums demanded in this count, the declaration would be good in form, the form given in Hogg’s Pleading and Forms, although, for want of a proper averment, evidence of the assignment by Samples to Danser, as alleged in the second
The criticism of the second or special count is that it lacks averment of notice to defendant of the assignment by Samples to Danser, and of the date defendant undertook or promised to pay plaintiff the sums demanded; and that it is also deficient in not averring that the sums so demanded were not paid to Samples before his assignment of said account to plaintiff, and notice thereof to defendant.
We do not think averment of notice of the assignment, or of the date of the promise by defendant to plaintiff, were necessary or material averments, but in our opinion this count of the declaration is fatally defective in failing to aver nonpayment to Samples before his assignment to plaintiff. A long line of decisions in this State, as well as in Virginia, unite in holding, that in an action for the recovery of a debt whether the form of the action be. in assumpsit or debt, the plaintiff must not only allege non-payment of the debt, but such allegation must also be general, and not limited to the time when it became due, and must be extended to every person who had the right to receive payment, either at the time the debt fell due or at any subsequent time. Hogg’s Pleading & Forms, section 99, and cases cited; Smoot v. McGraw, 48 W. Va. 144; Buckner v. Blair, 2 Munf. Anno. 485, and note citing cases; 3 Robinson’s Practice, 607. This defect in the declaration, being material, is not cured by the statute.
As the judgment must be reversed for want of a good declaration, it becomes unnecessary, if indeed not improper, to consider any of the other questions presented respecting admission and rejection of evidence. The judgment will, therefore, be reversed, the demurrer sustained, and the case remanded to the circuit court, with leave to .plaintiff to amend
Reversed and remanded.
