58 W. Va. 477 | W. Va. | 1905
This action of assumpsit for $15,000 damages was commenced in the circuit court of Marshall county on the 17th day of October, 1903, by the Federation Window Glass Company, a corporation, against the Cameron Glass Company, a corporation, M. L. Benedum, A. E. Fox and D. C. Harkins. Process was served on the defendants on the 27th day of October, 1903. The plaintiff filed an original and two amended declarations. The original was filed at November rules, 1903..
The vital question in this case is: Did the office judgment
Plaintiff claims that this office judgment became final on the last day of the June term, 1904, so as to bar a defense thereafter, and relies upon the cases of Hutton v. Holt, 52 W. Va. 672; Marstiller v. Ward, 52 W. Va. 74, and Bradley v. Long, 57 W. Va. 599. Those cases involved the finality of office judgment in actions where no order for inquiry of damages was proper or necessary. The authority of those cases does not appty to actions in which such order is necessary. The recent case of Philip Carey Mfg. Co. v. Watson, decided by this Court at this term, involved the question of the finality of office judgment in an action of assimpsit where the declaration contained only the common counts. In that case, it was held: “In an action of assivnvp-sit, where an order for inquiry of damages is required, the office judgment entered at rules does not become final on the last day of the next succeeding term of court, if not- previously set aside, so as to bar a defense thereafter, but the defendant may plead to issue at any time before the order for inquiry of damages is executed.” The only material difference between that case and the case here presented is, that the declaration here contained, in addition to the common counts, the special count upon the two promissory notes; but this fact did not take the common counts out of the declaration. We do not deem it necessary to repeat what we have said in the case last mentioned. Section 45, chapter 125, Code, only makes an order for inquiry of damages unnecessary in an action for debt upon any bond or other writing for the payment of money, or against the drawer or endorser of a bill of exchange or negotiable note, or in an action of debt or scire facias upon a judgment or recognizance. It may be argued that this action, while not an action of debt, is an action for debt, on writings for the payment of money, and therefore exempted by said section from the necessity of an order for inquiry of damages. This argument might come
The plaintiff insists that the common counts must be deemed to have been waived, because no bill of particulars was filed under them, and that the office judgment therefore could only have been upon the special count. The statute, section 11, chapter 125, Code, provides that in every action of as-sumpsit the plaintiff shall file with his declaration an account distinctly stating the several items of his claim, unless it be plainly described in the declaration, and if he fail to do so he shall not be permitted to prove any item not stated in such account on the trial of the case. The object of a bill of particulars is to specify the claim, and prevent surprise on the trial. 3 Ency. PI. & Prac. 519. The bill of particulars under -the statute is no part of the declaration. Riley v. Jarvis, 43 W. Va. 43. The failure to file a bill of particulars in an action of assumpsit is not ground for demurrer (Sheppard v. Peabody, 21 W. Va. 368); nor is the fact that the bill is too vague (Abell v. Penn Ins. Co., 18 W. Va. 412.) Where the bill is too vague, advantage may be taken of the defect by excluding the plaintiff’s evidence. The bill of particulars not being a part of the declaration, no rules could have been taken upon it if it had been filed. We do not think, under our decisions and practice, that the plaintiff waived the common counts by not filing the bill of particulars at the time the declaration was filed. Plaintiff might file the bill later, and rely upon the common counts. We do not understand that it is absolutely necessary that the plaintiff file the bill at the time the declaration is filed. The statute does not say so. It seems to us that the statute means that he shall file the bill in support of, and to amplify and supplement, his declaration, but not necessarily at the same time the declaration is filed. If the plaintiff fails to file the bill, the penalty is the exclusion of his evidence as to any item not plainly described in the declaration. The defendant before trial may demand such bill. Transportation Co. v. Standard Oil Co., 50 W. Va. 611.
In this case, the plaintiff has chosen to bring an action of
Therefore, we now hold that where a declaration in an action of assumpsit contains the common counts, and one or more special counts upon promissory notes in writing for the payment of money, and office judgment by default is entered at rules, the necessity of an order for inquiry of damages is not avoided by section 45, chapter 125, Code; and that such judgment does not become final, on the last day of the next succeeding term of court, not having been previously set aside, so as to bar a defense thereafter, but the defendants may plead to issue at any time before the order for inquiry of damages is executed.
It is unnecessary for us to say whether or not the judgment in this case is erroneous because the office judgment was entered after a rule to plead, when there had been no appearance by defendants.
We do not desire to be understood by this decision as holding that an order for inquiry of damages would be necessary in an action of assumpsit where the declaration contained only counts upon a writing or writings for the payment of money, or that in such case an office judgment by default would not become final on the last day of the next succeeding term of court. That case is not before us, and we decide nothing in relation to it.
Reversed mid Remanded.