77 W. Va. 716 | W. Va. | 1916
These actions were brought by the First National Bank of Pineville to recover the amounts of notes severally payable to each of the defendants above named and endorsed by the defendants who are not so named, against each of whom judgments were rendered; and they have brought all the cases ' here for review on writ of error. They assign as erroneous rulings refusing to sustain their motions severally made to “quash” the declarations after craving oyer of the writs, and their demurrers to the declarations; to strike from the file the affidavit of plaintiff filed pursuant to §45, ch. 125, Code; to submit the -matters in difference to trial by jury; and the allowance of ten per cent of the amounts 'sued for as the collection fees specified in the notes. To each of these rulings defendants excepted, and thereafter declined to participate further in the subsequent proceedings had therein • (except in the case against Cook and others), when the court confirmed the office judgments and fixed the amounts of plaintiff’s recoveries in accordance with its affidavits, which included the collection fees.
By their motions to quash, defendants presumably meant to raise the question of a variance between the writs and the
Otherwise, the declarations are in due form and free from objection, as is also each of the affidavits therewith filed showing the amounts due plaintiff; and there is no perceivable ground for challenging the sufficiency of either or any of the declarations or of the affidavits, all of which are alike except as to the dates and amounts of the notes in suit and the names of the makers, payees and endorsers thereof, unless it be that all aver and claim the benefit of the prescribed collection fees. But if a declaration avers matters constituting a cause of action upon which recovery may be had, and others divisible therefrom not constituting such cause, a general demurrer will not reach that defect. To accomplish that result a demurrer must distinctly be directed to the objectionable averments. Bank v. Bank, 85 S. E. 541. This rule was disregarded in each of these cases.
In form the affidavits concisely stated the facts and amounts required by §46, ch. 125, Code, and indeed furnish the most definite information of the inclusion in the judgments of the amounts of the collection fees. But they can not be condemned in toto merely because they purport to specify these fees as parts of the recoverable amounts claimed by plaintiff. Although the section cited provides for rendition of judgment for the amount stated in an affidavit filed as therein permitted in the case of a judgment by default, yet if the affidavit obviously includes specific items plainly not allowable the judg-„ merit may and ought to exclude them, notwithstanding the imperative terms of the statute. It was not intended to require entry of a judgment for an amount' not recoverable, although vouched for as correct by the affidavit thereby prescribed.
The only other assignment of error affects the judgments only to the extent of the fees .specified in the notes and demanded by the declarations and affidavits. The inclusion of these fees, according to Bank v. Bank, supra, and Bank v. Poteet, 74 W. Va. 511, 54 L. R. A. (N. S.) 928, was erroneous, and will be corrected here by corresponding reduction made in each case as follows: Bank v. John A. Sanders and others, from $1110.67 to $1010.67; Bank v. Leola V. Sanders and others, from $3365.20 to $3335.20; Bank v. Divert O. Sanders, from $3332 to $3032; Bank v. H. W. Sanders and others, from $3554.13 to $3234.13; with interest on the reduced amounts from the date of the judgments.
Defendants were permitted to file the general issue plea in the ease of Bank v. Cook and others, doubtless because plaintiff did not support its right to recovery by an affidavit-similar to those made in the other cases; and on that plea, on which issue was joined, the action was tried, resulting in a verdict for $1676.83 on demurrer to plaintiff’s evidence/on which judgment was entered. No motion for a new trial, or for a correction of the amount found by the jury by eliminating the percentage fees for collection, doubtless included therein, was made. Are Cook and his co-defendants now entitled to have the verdict and judgment reduced, in view of their failure to make such motions in the trial court?
Hence, the judgment against Cook and others must be affirmed, with costs to the bank; but the judgments in all the other cases will be modified and corrected as heretofore indicated, and, as so corrected, affirmed, with costs to plaintiffs in error.
Modified and Affirmed.