41 W. Va. 530 | W. Va. | 1895
On appeal from a decree of the Circuit Court of Cab-ell county in favor of the appellee against the Huntington Distilling Company, entered on the 10th day of April, 1895, decreeing certain judgments as liens against the real estate of the Huntington Distilling Company, and a sale of such real estate to satisfy the same, but giving the judgment of the First National Bank of Ceredo priority over the judgment of the Huntington National Bank, from which the latter appeals.
In July, 1894, tlie First National Bank of Ceredo brought its suit in equity against the Huntington Distilling Company, James A. Hughes, and the Huntington National Bank, alleging that on the 22nd day of March, 1894, it recovered a judgment against the defendants the Huntington Distill
On the 13th day of August, 1894, the judge in vacation made an order in the cause referring it to a commissioner, to ascertain, state, and report the real estate—location, quantity, and value—of the distilling company, the number, kind, and amount of the liens thereon, with their order of priority, rental value of the land, etc. The commissioner fixed upon, and published due notice of the 29th day of September, 1894, at his office, in the city of Huntington, as the time and place of opening his account, which he completed and —having retained it ten days for inspection of the parties—returned and filed the same on the 31st day of October, 1894.
While the cause was before the commissioner the Huntington National Bank brought in and filed with him its answer,and an answer was also filed before the commissioner purporting to be the answer of the Huntington Distilling Company.
On the 19th day of November, 1894, by leave of the court, the plaintiff filed exceptions to the report, on the ground that the commissioner erred in reporting its judgment a nullity, and the judgment of the Huntington National Bank for four hundred and ninety six dollars and thirty cents as the sole lien. On the 10th day of December, 1894, the Huntington Distilling Company appeared by its president and attorney, and asked leave to file a second answer, and that the one filed before the commissioner be stricken out. The Huntington National Bank objected, and the court took time to consider, and on the 10th day of April, 1895, pronounced the decree appealed from, in which it sustained the motion of the distilling company to strike out
The third assignment of error is that relating to striking out the answer filed before the commissioner and permitting the defendant the distilling company to file what is styled its “second answer.” A defendant may put his answer in before the commissioner as a statement brought in of his claim or grounds of defense; but there is no law for filing an answer before a commissioner. Answers and other pleadings, except in cases of injunction, can only be filed at rules or in court. Zell Guano Co. v. Heatherly, 38 W. Va. 400, (18 S. E. 611.)
Supposing, for the present, the plaintiff’s judgment to be a valid judgment, did the court err in giving it priority over the judgment of the Huntington National Bank? The judgment of the First National Bank of Ceredo against the Huntington Distilling Company was entered on the 22d day of March, 1894, but the suit was on the docket of the March term, 1894, which commenced on the 19th day of March. So that it appears thejudgment might have been rendered on the first day of the term, and therefore has relation to the first day of the term. But the judgment for the Huntington National Bank was rendered on notice to the 21st day of March, 1894, and judgment on the notice could not have been rendered on the first day of the term. Coutts v. Walker (1830) 2 Leigh. 268; Withers v. Carter (1848) 4 Gratt. 407, 418; Brockenbrough v. Brockenbrough (1879) 31 Gratt. 580, 600; Dunn's Ex'rs v. Renick 40 W. Va. 349 (22 S. E. 66). This general principle of the common-law, like many others, is of such remote antiquity, and so long recognized without dispute, that the reasons and policy on which it was founded are in a great degree left to conjecture. 1 Black, Judgm. § 441, citing Coutts v. Walker, 2 Leigh, 268. See 2 Freem. Judgm. § 369.
The remaining and important question is, did the plaintiff have a valid judgment ? A duly certified copy of the
But, suppose it was otherwise; what are the defects and the legal consequences thereof, set up by the judgment creditor competing for priority ? The writ was against the Huntington Distillery Company; whereas the declaration gave the exact name of this corporation, the Huntington Distilling Company. It is true that corporations are mere legal creatures, and must sue and be sued in their true names. Porter v. Nekervis (1826) 4 Rand. 359; Society v. Digges (1828) 6 Rand. 165. Yet if some words are added to or omitted in the true name of a corporation, this is not a fatal variance, if there be enough to distinguish the corporation from all others, and to show that the corporation
But whatever the law may be elsewhere, in this state the question involved in this case is set at rest by the statute. The word “person” includes corporations, if not restricted by the context. Code, 1891, p. 124, c. 13, s. 17, cl. 9. No plea in abatement for a misnomer shall be allowed in any action; but in a case wherein, but for this section, a misnomer would have been pleadable in abatement, the declaration and summons may, on the motion of either party, and on the affidavit of the right name, be amended by inserting the same therein. Code, c. 125, s. 14. In other
The decree complained of must be affirmed.