71 W. Va. 684 | W. Va. | 1913
Plaintiff brought assumpsit against Bair,' maker, and Ely, payee and indorser of a note, dated April 20, 1905, at six
At October rules, plaintiff appeared and died its declaration, with statutory affidavit prescribed by section 46, chapter 125, Code 1906, and defendants failing to appear or plead, the common order was entered. At November rules, Ely was1 still in default, but Bair appeared, and filed two special pleas in abatement, but filed no plea to issue. We decided in Varney & Evans v. Lumber Co., 64 W. Va. 417, that a plea in abatement, though tendered at the same term of court at which the office judgment would become final, cannot be received to set aside an office judgment. This is old law. 2 Tucker’s Com. 236, citing Hunt v. Wilkinson, 2 Call. 63, 67; Bradley v. Welch, 1 Munf. 285. See, also, notes, Warren v. Saunders, 27 Grat. Anno. 259, and Smith v. Charlton, 7 Grat. 425.
At the April term, 1908, after striking out, on plaintiff’s motion, we think rightfully, Bair’s special pleas in abatement, the court refused, on plaintiff’s demand and motion, to enter judment 'for it, as per affidavit, and over its 'objection permitted Bair to file his counter affidavit with a general plea of non-assumpsit and a special plea in writing.
Upon the trial of the issue joined on these pleas,, plaintiff, after offering in evidence its affidavit filed with its declaration, again moved for judgment thereon, which motion the court again overruled, and it again excepted. The jury then heard plaintiff’s evidence, defendant offering no evidence, and thereupon, on motion of Bair, and as directed by the court, the jury returned a verdict for the defendant. Plaintiff’s motion to set aside this verdict and award it a new trial was carried over to the July term, 1908, when it was overruled and the judgment of nil capiat complained of pronounced. Is the judgment below erroneous ?
On the theory of an office judgment against Bair at November rules, 1907, and that no writ of inquiry was required, the first point of error is that the court erred at the April term, 1908, on striking out Bair’s pleas in abatement, in permitting him
Did Bair’s pleas to the jurisdiction at November rules, 1907, prevent an office judgment against him, letting him in after' the last day of the succeeding term, and after the issue on his pleas to the jurisdiction had been decided against him, to plead to issue and make defense on the merits? At first, in view of prior decisions, and the object of the statute to cut off dilatory pleas unless promptly filed, we were disposed to deny the proposition. But on more mature consideration, on rehearing and reargument, we have concluded that this case must be distinguished from Marstiller v. Ward, 52 W. Va. 74, 81; Hurlburt & Sons v. Straub, 54 W. Va. 303; Bradley v. Long, 57 W. Va. 599; Bank v. Burdette, 61 W. Va. 636; Netter-Oppenheimer & Co. v. Elfant, 63 W. Va. 99, 59 S. E. 892; Hansford v. Snyder, 63 W. Va. 198; Varney & Evans v. Lumber Co., 64 W. Va. 417. In all these cases, we believe, an office judgment had been entered at rules. In the case at bar Bair appeared at the second rule day, within the time now given by section 16, chapter 125, Code 1906, and filed his pleas in abatement. After those pleas could there be an office judgment against him? Such a plea as we have decided will not set aside an office judgment once entered; but will it when filed at rules prevent an office judgment? Section 44, chapter 125, Code 1906, says what shall be done at rules. If defendant appears at the first rule day, but fails to plead, a rule may be given against him to plead, not a conditional judgment. It is only when he fails to appear .that the plaintiff may have the conditional judgment. In this case he failed to appear at the first rules and there was a conditional judgment; but at the next rule day he did appear and filed his pleas in abatement. The statute does not say “plea to issue.” It says: “But at the next rule day after the same is entered” (a decree nisi or conditional judgment) “if the defendant continue in default, or at the expiration of any rule upon him with which he fails to comply,
Section 46, of chapter 125, relied on, it must be remembered deals only with proceedings in court, after default, and after an office judgment has been entered. When that is the status of the case, according to our decisions, no plea not a plea to issue will set aside the office judgment. But our statute and decisions do not cover a case where there has been no office judgment. Besides the statute, old forms of orders making-up issues on pleas in abatement filed at rules and conditional judgment, and the cases of Hinton v. Ballard, 3 W. Va. 586, and James River & Kanawha Co. v. Robinson, 16 Grat. 435, seem to imply at least, that any plea by defendant at rules, which he is permitted to file will prevent an office judgment. See Bobinson’s Forms No. 39, page 21; 4 Minors Inst., part 1, page 720; 1 Robinson’s Practice, (Old) pp. 286, 289.
It is contended on behalf of Bair, that section 20, of chapter 125, has changed the common law rule, which required final judgment if the defendant lost on his pleas in abatement; and that section 21 giving right to plead in bar and abatement at the same time does not require defendant to do so; but gives him that right if he so elects, and that though he has not pleaded in bar, he may after he has lost on his plea in abatement avail himself of that provision thereof, which says, that if the issue on his plea in abatement be found against him “he may, nevertheless, make any other defence he may have to the action.” We think the proper interpretation of that section is, that where no writ of inquiry is required, a defendant who would avail himself of other defenses, on losing on his plea in abatement or other dilatory plea, must have filed such plea or some other plea at rules in timé to prevent an office judgment; otherwise the office judgment entered at rules will become final on the last day of the next succeeding term of the court, and such
Our conclusion is that as defendant’s pleas in abatement prevented an office judgment at rules there was no error in permitting him, at a subsequent term, on striking out these pleas, to file his counter affidavit and pleas to issue; and it follows that the court below committed no error in overruling plaintiff’s motion for a judgment as per affidavit, certainly as against the defendant Bair.
The next point is, that the court below, on motion of Bair, erroneously struck out plaintiff’s evidence, including the note sued upon, and directed a verdict for defendant. As appears, the ground of this motion was the alleged variance between the note declared on and that offered in evidence. The note declared on is alleged to be a negotiable note; the note introduced in evidence seems to answer the description of the note declared on, with this exception, that in the body of the instrument and immediately before the signature of the maker, Geo. W. Bair, Sr., are the words, “Credit the maker. Security on contract of April 20, 1905.” Our statute, section 7, chapter 99, Code 1906, in force when this note was made, made every promissory note payable in this State at a particular bank, and certain other ¡Races, a negotiable note. The note here in question is of that description, and it has all the other elements of negotiability necessary to cut off equitable defenses, when purchased in the usual course of business, without notice of such equities, except in respect to the words quoted. Do these words render its payment conditional and uncertain, so as to destroy its negotiability? We are of opinion that they do. By the law merchant, one of the principal elements of negotiability is, certainty of payment, and any words of the instrument rendering payment conditional or uncertain destroy it as a negotiable instrument. The words “Security on contract of April 20, 1905”, gives notice to the world that it is only a security on a contract of the same date. What that contract is or was is
But did the court err, as the plaintiff claims, (1) in striking out all of plaintiffs evidence; (2) in directing a verdict for defendant, without permitting it as proposed to offer evidence that Bair had not complied with the cotemporaneous contract; (3) in not setting aside the verdict of the jury and awarding the plaintiff a new trial; (4) in pronouncing the judgment of nil capiat complained of? We think not. If we are correct in holding that the note adduced in evidence is not negotiable, a joint action thereon, by section 11, chapter 99, Code 1906,
The judgment below will, therefore, be affirmed.
Affirmed.