Holliday's Ex'rs v. Myers

11 W. Va. 276 | W. Va. | 1877

Haymond, Judge,

delivered the opinion of the Court _

This is an action of debt, brought by the plaintiffs against the defendants, in the circuit court of the county of Jefferson, on the 27th day of March 1871. The action is based upon a bond with collateral conditions. The bond is made payable to the plaintiffs, its penalty is $400.00, and bears date the 15th day of April 1869, as alleged in the declaration. The declaration alleges that on the date last stated the defendants by their certain writing obligatory, sealed with their seals, “ bound themselves, their heirs, executors, administrators &c., jointly and severally to pay unto J. andB. Holliday, executors as aforesaid, the sum of $400.00; the conditions of said obliga-tionbeing in substance as follows, to-wit: If the said Joseph Myers shall well and truly pay unto said J. and E. Holliday, executors of J. W. Holliday, the judgment in a suit and all loss, damages or injury they may sustain by reason of an injunction, which was awarded by E. B. Hall, Judge, on the 28th day of January 1869, in the case of John W. Holliday’s executors v. Joseph Myers, the said obligation shall bevoid; otherwise to remain in full force and effect.” The declaration then further alleges: “ And plaintiffs aver that the judgment due them, which was enjoined by order of E. B. Hall, on the 28th of January 1869, was for the sum of $100.00, with interest thereon from the 24th of December 1861; and $100.00 with interest from the 24th day of December 1862, and $24.41 costs of original suit, and $32.45 costs of the injunction suit; and that the injunction so ordered by said E. B. Hall, Judge &c., was dissolved on the 15th day of November 1870; and that in pursuance of the statutes, in such cases made and provided, the said plaintiffs were entitled to recover from the defendants the amount of said judgment, with interest and costs, as aforesaid, together with ten per cent damages thereon from the 28th day of January 1869, to the 15th day of November 1870, and costs of the injunction, $$2.45. Yet the said defendants have not paid the amount of the said judgment for defendants, interest and costs or the damages aforesaid,” &c. The declaration was filed at April rules 1871. After-wards on the 22d day of September 1871, the parties appeared in court, by their attorneys, and the office judgment had at rules in the cause was set aside, and the defendants filed their joint plea to the action, upon which issue was joined. Afterwards on the 4th day of January 1872, the parties again appeared in court, and the defendants, by their attorney, withdrew their said plea; and thereupon the plaintiffs proved their cause before the court; and the court rendered judgment against the defendants, Joseph Myers and James M. Johnson, for $301.72, with interest thereon from the 4th day of January 1872, till paid, and the costs of suit; and the defendants filed their bill of exceptions to an opinion and ruling of the court made in the cause, which is duly signed and sealed by the judge presiding. By this bill of exceptions it appears, that the defendants objected to the trial of the case, because, the defendants alleged the term of the said court expired prior to the day the cause was tried by tbe court, and that there was then no legally constituted court for the trial of causes for certain reasons stated in said bill of exceptions; but the court overruled said objection.

On the 31st day of January 1873, the defendant, James M. Johnson, upon notice to the plaintiffs, moved the judge of said circuit court, in vacation, to reverse the said judgment for errors therein; but it does not appear by the record, what were the errors assigned before' the Judge; but it does appear that the court on consideration of the errors assigned, was of opinion that the judgment complained of “ is not a judgment by default, and therefore not amendable or reversible in the proceeding to re-hear and reverse the same ;” and the Judge dismissed the notice, &c. After this proceeding upon the part of the circuit judge, the defendant, J. M. Johnson, on his petition and assignment of errors therein, obtained from this Court a supersedeas to the said judgment, rendered in said cause, on the 4th day of January 1872. The errors assigned by said Johnson, in his said petition for a supersedeas, and relied on by his counsel in argu-mentbefore us, are as follows: “1. The declaration shows affirmatively, that no liability attached to the defendants because of the writing set forth, the said writing being a nullity, because: First, it is uncertain, in that the.condition was to pay the judgment in a suit; the identity •of the suit or judgment does not appear. Second, the writing is void because while represented as a statutory bond, and deriving its validity from the statute, the statute is not pursued in any particular; there is not a provision of said bond warranted by the statute. 2. The declaration is fatally defective, because: 1st. No damage is averred or demanded. 2. No measure of damages is exhibited. 3. No damages could have accrued to the plaintiff because of the facts stated ; and damage was the ■gist of the action. 4. The judgment should have been for the penalty to have been discharged by the payment of the amount of damages ascertained. 5. The judge, in vacation, upon the hearing of the motion erred in hold-that the judgment complained of was not a judgment by default, within the meaning of the 5th section of chapter 134 of the Code of the said State.”

I will consider said errors so assigned consecutively. The first error assigned. It is proper here to remark that oyer was not craved of the bond in the declaration mentioned, and it was admitted before us in argument by the counsel on both sides, that the bond sued upon is not part of the record, and cannot be considered by us as such — that we are confined to the declaration. It is also proper to consider here, how far we are at liberty to consider in this case defects in theTdeclaration, either of form or substance. In the case of Jenkins v. Hunt’s comm’rs, 2 Rand. 446, decided in 1824, Judge Green in delivering the opinion of the court of appeals of Virginia, says, at page 447: “The paper, which was the foundation of the action in this case, was a simple contract. The declaration therefore should have claimed according to the legal effect of the contract, that is, the principal sum, and not the penalty, and should have noticed the penalty, only by way of describing the instrument sued upon. The defendant Jenkins having appeared and pleaded, and after-ward waived his plea, this fault in the declaration, which might have been demurred to for that cause, is cured by the provisions of the statute of jeofails, which took effect on the 1st day of January 1820; and being cured as to Jenkins, is cured as to the other defendants.” The action in this case was debt, and it appears by the statement of the case, that “ Jenkins appeared and pleaded payment. An office judgment was entered against Young, who did notappear. Jenkins then relinquished his former plea, and the court rendered judgment against him for'$2,228.00, the penalty in the writing to be discharged by the payment of $1,114.00 with interest, &c. The 3d section of our statute of jeofails, chapter 134 of the Code of this State, which took effect on the 1st day of April 1869, provides that “ no judgment or degree shall be stayed or reversed for the appearance of either party, being under the age of twenty-one years, by attorney, if the verdict (where there is one) or the judgment or decree, be for him and not to his prejudice; or for want of warrant of attorney ; or for the want of a similiter, or any misjoin-ing of issue; or for any informality in the entry of the judgment or decree by the clerk ; or for the omission of the name of any juror; or because it may not appear that the verdict was rendered by the number of jurors required by law; or for any defect, imperfection or omission in the pleadings, which could not be regarded on demurrer; or for any other defect, imperfection, or omission, which might have been taken advantage of on a demurrer or answer, but was not so taken advantage of.” In the ease of Kennaird &c. v. Jones, 9 Gratt. 183, Judge Lee in delivering the opinion of a majority ot the court says: “ It is true, that under the sweeping provision introduced into our Code at the revisal of 1819, that after verdict, no judgment should be arrested for any defect, whether of form or substance, which might have been taken advantage of by demurrer, but was not so taken advantage of, the omission of the allegation in question in this case, if no demurrer had been filed, could not have served to stay the judgment after verdict.” And a few sentences further on he says, that “in the^absence of such allegation, it seems impossible to say that the plaintiffs show a perfect right to demand and recover the balance of the agreed price, for which the suit was brought.”

In the case of Boyles’s adm’r v. Overby, 11 Gratt. 202, it was held by a majority of the court, that “an action in the case for fraud in selling to the plaintiff an unsound slave, which he was induced to purchase by means of a false and fraudulent warranty of soundness, or by means of a fraudulent concealment of the unsoundness of the slave, cannot be maintained against the personal representative of the vendor;” and that “in’ such an action against the personal representative of the vendor, though there is a judgment in favor of the plaintiff, the error will not be cured by the statute of jeofails. 1 Rev. Code, of 1819, ch. 128 §103 p. 511 and also, that in such case, though there is a verdict for the plaintiff, judgment should have been rendered for the defendant notwithstanding the verdict.” Judges Moncure and Lee did not concur in the decision of these points. In Mason v. Farmers’ Bank of Petersburg, 12 Leigh 84 it was held: “ And when a suit is brought against the president and directors of a branch bank, this is not a mere misnomer, which must be pleaded in abatement, but is a bar to any recovery; and though a verdict be founded upon the general issue pleaded, the error is not cured by the statute of jeofails.” In the case of Ross v. Milne, 12 Leigh 204, it is stated in the syllabus, that “upon a declaration which shows that plaintiffs have no right of action, and on the contraiy that the right of action is in another, verdict is found for the plaintiffs. Held : the statute of jeofails of "Virginia, 1 Rev. Code, ch. 128 §103, does not apply to the case.” Tucker, Judge, who delivered the opinion of court in that case, says at page 227: “it only remains to observe, that the want of title in- Mrs. Milne cannot be cured even by the omnipotent act of jeofails. That act never could have been designed to enable a plaintiff to recover, what by his own showing belongs to another.” In the case of Davis v. The Commonwealth for Leon, 13 Gratt. 139, it is held: “ that when ’the attachment is issued against the effects of the defendant generally, and. is levied upon the property of a third person, such third person has no remedy upon the attachment bond.” Judge Moncure, who delivered the opinion of a majority of the court in that case, says at page 151: “ This action was brought at the relation, not of the defendant, but of a stranger, and for a cause not within the terms of the bond. The defect is not in form, but in the foundation of the action, and is no more cured by the Code, ch. 181, §3, than it would have been by the statute of jeofails: 1 Rev. Code of 1819, oh. 128, §103. It follows, on the áuthority of Ross v. Milne et ux, 12 Leigh 204, and Boyle’s adm’r v. Overby, 11 Gratt. 202, that the judgment of the circuit court must be reversed, and judgment entered tor the plaintiff in error, non obstante veredicto.” The 3d section of said chapter 181 of the Code of Virginia is the same, as the 3d section of said chapter 134 of the Code of this State which I have alreadjr given herein. See also Hitchcox v. Rawson, 14 Gratt. 526. In Spengler v. Davy, 15 Gratt. 381, it is held that, “ in an action for maliciously suing out an attachment against the effects of the plaintiff, the declaration alleges, that the attachment was sued out “ wrongfully and without good cause.” Though this was irregular, it is cured by the verdict. In the case of Ellis v. Thilman, 3 Call 3; Young v. Gregory, id 446; Kirtley v. Deck et al., 2 Munf. 10, it was held that the declarations were radically defective, and were not cured by verdict; and it was said that the words without probable cause or some equivalent expression, were essential to make a good declaration; and it was held that the words without any just cause in the first named case, and without any legal or justifiable cause in the second, could not be received as equivalents for the words the law required. But as said by Judge Daniels, in Spengler v. Davy: “ It is to be observed however of all these cases (meaning these last named) that they were decided in the absence of some of the most sweeping of the provisions of our statute of jeofails, and more especially of that which declares, that no judgment after verdict shall be stayed “ for any defect whatsoever in the declaration or pleading, whether of form or substance, which might have been so taken advantage of,” which was first, introduced at the revisa] ot 1819; and was re-enacted in 1849, with slight modifications, not necessary here to be noticed. See Code of 1849, page 680. In the case of Spengler v. Davy, Judge Daniels says at page 397: “ It is true, that broad and comprehensive as is the language of the provision, this court has felt called upon, on sevi eral occasions, to set some limits to its operation, and to declare that there are some defects in declarations which •are beyond its cure. Still it will be seen, by reference to the cases alluded to, that none of them can be used as precedents for excluding this case from the benefit of said provision.” The Judge then reviews the cases of Mason v. Farmers’ Bank at Petersburg, 12 Leigh 84; Ross v. Milne et ux., 12 Leigh. 204, and Boyle’s adm’r v. Overby, 11 Gratt. and says: “ In neither one of these cases was there any room for the inference of facts, supplementary to and consistent with those alleged by the plaintiff, that could make out a good cause of action. In each case the allegations of the plaintiff showed affirmatively, that he had no right to recover.” The cases of Mason v. Farmer’s Bank at Petersburg was the case of a suit by the plaintiff against the president and directors oí a branch bank, in which the declaration complained of them as “ the president, directors and company of the office of discount and deposit of the Farmers’ Bank at Petersburg. The court held in that case that no judgment could be recorded, as the declaration was' against parties, who could not be made liable to any action. There was no such corporation in existence. The declaration plainly showed that the cause of action was against the president, directors and company of the Farmers’ Bank of Virginia. In the case of Ross v. Milne et ux., the declaration plainly showed that the plaintiffs had no cause of action, and that the right demanded was in a third person. The case of Boyle’s adm’r v. Overby, 11 Gratt. 202, was a suit against an administrator for an alleged cause of action against his intestate, and the declaration alleged a cause of action, which from its veiy nature must have died with the person of the intestate. The case of Davis v. The Commonwealth, for Leon, 13 Gratt., was an action upon an attachment bond authorized by the Code of Virginia chapter 151, section 8, p. 602; and the court determined that the bond was not a general indemnifying bond, and where the attachment is issued against specific property, only the defendant or owner of such specific property can sue upon the bond; but that where the attachment is issued against the effects • of the defendant generally, and levied upon the property of a third person, such third person has no remedy upon the attachment bond. The declaration in this case plainly showed that the attachment issued against the effects of the defendants, generally ; and that the attachment was levied upon the property of the plaintiff in the action on the attachment bond, who was another and a different person from the defendant in the attachment, and against whose effects the attachment did not issue. Neither of these four cases are like the case at bar, as I understand them. In each of said four cases the court was of opinion, as it seems, that the declaration plainly showed affirmatively, that there was no room for facts supplementary to and consistent with those, alleged by the plaintiff in his declaration that could make a good cause of action in him. The case of Hitchcox v. Rawson, 14 Gratt. 526 was an action of ejectment. There was a trial had in the cause by jury and the jury found “ for the plaintift against the defendant, the estate in fee-simple in the land in the plaintiffs declaration mentioned.” In that case Judge Lee, who delivered the opinion of the court, says at page 538: “ I think therefore the description lacks sufficient certainty and precision, and that if a demurrer had been put into the declaration, it should have been sustained. There was however no demurrer; and the defect might have been cured by a verdict, which did ascertain the subject, with proper certainty : Bursly v. Fogg, 1 Call 484; Lovell v. Arnold, 2 Munt. 167; Bolling v. Mayor of Petersburg, 3 Rand. 563. But the verdict found is obnoxious to precisely the same objection, that applies to the declaration. . * * There is therefore no more certainty and precision in the verdict, than there is in the declaration, and the defect in the latter is not cured by the former.” The judgment for plaintiff upon the verdict was,reversed and the cause remanded to the circuit court to set aside the verdict and the pleadings, and to award a repleader.”

By consulting the case of Kennaird, &c. v. Jones, before cited, it will be seen that the first count of the declaration fails to show a cause of action; and yet Judge Lee in his opinion at page 189 says, “ if there had been no demurrer filed, in his opinion, the defect in that declaration could not have served to stay the judgment after verdict.” From what has been already said in reference to the case of Spengler v. Davy, 15 Gratt. 381, it is, I think, manifest that the declaration did not show good cause of action, or a right to recover. And I must be permitted to say with all due respect, that there seems to be a conflict in some of the Virginia cases, to which I have referred, which would be difficult to satisfactorily explain and reconcile. ’ The plain language of our statute of jeofails is certainly comprehensive and sweeping; as already seen, it provides that “no judgment or decree shall be stayed or reversed for, &c., or for any defect, imperfection or omission in the pleadings, which could not be regarded on demurrer; or for any other defect, imperfection or omission, which might have been’ taken advantage of on a demurrer or answer, but was not so taken advantage of.” As before stated, chapter 181, sec. 3 of the Code of Virginia, is the same as sec. 3 of chap. 134 of the Code of our State, which I have before quoted. And we have also seen that the court, .of appeals of Virginia has held substantially in four cases, to which I have • referred, that when the allegations of the plaintiff showed affirmatively, that he had no right to recover, that the statute of jeofails does not cure the defect; that such cases are not covered by said statute. But so far as I have seen, in no case in Virginia, or in this State, has it yet been held under the present statute, that said statute does not apply and opérate, where the declaration does not show affirmatively, that the plaintiff has no right to recover against the defendant; nor has it yet been held, tbat the statute does0, not apply and cure after judgment, when the cause of action is merely so imperfectly or insufficiently alleged in the declaration, as that it does not show a perfect or complete right of recovery, and the court can see that the defect, though of substance, may be supplied by proper proof. It seems to me in such case the statute should apply and cure such defect; and that if it does not, it is not because its plain language does not comprehend and embrace such a case, but because of unauthorized construction, which tends to defeat the manifest purposes of the Legislature. It must be remembered, that the declaration in this cause does not profess to state the conditions of the bond in 1me verba, but only the substance of the bond. It is true the declaration does not on its face identify the judgment therein mentioned^ so that from the declaration alone, the amount or dite of the judgment or in whose favor or against whom it is, may be ascertained. Still I do not feel authorized to determine, that the judgment in the declaration mentioned could not have been sufficiently identified by (he production of the bond and the record of the injunction ease in the declaration mentioned, or that it would,not have been competent or proper to do so. I think il would have been competent to have thus identified the judgment; and I am not authorized to say such was not cbne before the court; but I must presume, under the circumstances, that whatever, was necessary and proper to ie shown in this respect to-the court, was properly showi by the plaintiff, and that the judgment of the court therein was right and proper, the contrary not affirmatively appearing by the record. Immediately after the wore suit in the declaration, the declaration proceeds, “ anil all loss, damages or injury they may sustain/’ &c. 'The words “lessor injury” are notin the act preserving the conditions of the bond, nor is the word “sustain,” but the word “incur” is. The 10th section of chapter 133 of the Code provides that, “ An injunction (except &c.) shall not take effect until bond be given in such penalty as the court, or judge, awarding it may direct, with condition to pay thejudg-Hient or decree (proceedings on which are enjoined) and all'such costs as may be awarded against the party obtaining the injunction; and also such damages as shall be incurred in case the injunction be dissolved,” &c. It is maintainedlby^the counsel of plantiff in error, that the bond sued on was executed under this section of the Code as an injunction bond. The declaration does not allege, that the bond contains any provision for paying all such costs, as may be awarded against tie party obtaining the injunction, as provided in the said section. Although the condition of the bond is not so extensive, as the statute requires, yet if it contains a material part of the conditions required, the bond is not void, but binds the obligors to the extent of such condition or conditions, and when the bond contains sone conditions or provisions, not required by the statute, and some of those which are required, it is valid and liinding to the extent of the latter. Gillespie v. Thompson, et al. 5 Gratt. 132; White v. Clay’s ex’r, 7 Leigh 68; Fox & Vowles v. Mountjoy, ex’r &c., 6 Munf. 36; Pratt v. Wright et al., 13 Gratt. 175; Gibson v. Beckham et al. 16 Gratt. 321; Porter ex’r v. Daniel et al., and cases there cited, 11 W. Va. ggl regard the word “sustained,” employe! in the declaration, in the connection in which it is usd, as equivalent to the word “incurred,” contained in the act. But it is further argued that the declaration d<es not contain the words, “in case the injunction be dssolved,” and that by reason thereof, the liability allegel in the declaration, if any, is absolute, instead of additional, as it would be if these words were inserted, as prescribed in the act. Views above stated and some aithorities cited apply to this objection. But, granting the iond described was executed and delivered as an injunctioi bond, under the order'of the judge or court granting he same, and under said tenth section, it is probable the obligors could not be compelled to pay, unless the injuncticn were dissolved,thoughitisbest and safest always'to insert tbe said words. I am not at liberty to Jcnow or determine jndi-cially, whether the bond in fact contained these words of condition or qualification, or not. I am not considering the sufficiency of the declaration upon a demurrer, but under he provisions of the statute of jeofails. It is also arguedthat the injunction never took effect, because the declaration fails to show, that the condition of the bond contains all the requirements oí the 10th section of chapter 133. This proposition has been overruled by decisions of l(he court of appeals of "Virginia at different times and Ijee no sufficient reason to depart from these decisions at his late day: White v. Clay’s ex’rs, 7 Leigh 68; Fox & Vwles v. Mountjoy, ex’or, &c., 6 Munf. 36; Gillespie et al v. Thompson et al., 5 Gratt. 132; Porter’s ex’r v. Daniel and cases there cited.

The 10th ¡lotion of said chapter 133 of the Code of this State fuiher provides that, “the bond shall be given before re clerk of the court in which said judgment or decrewas obtained, and in other cases before the clerk of the (iurt in which the suit is, wherein the injunction is avrded. If the bond be not given before the summons issued, the clerk shall endorse thereon, that the inj union is not to take effect, until the bond is given; and thtilerk, who afterwards takes the bond shall endorse therei, that it is given.” This provision, in connection wi| a preceding provision of said 10th section providingthat “an injunction shall not take effect, until bond be <mi in such penalty, as the court or judge awarding it ml direct, with condition,” &c., is substantially the sanujin effect, as it appears to me, as the 55th and 56th sectiis of the act of the Legislature of Virginia of 1792¡Lst Lev. Code of Va. of 1814, p. 95, and the 113th and|14th sections of chapter 66 of the Rev. Code of Va.q l819, p. 218.

Since the o/rt of appeals of Virginia, in some of their decisions bfore named, have attempted to set some limits to tljbroad and comprehensive language of our statute of jeofails, it is, in the apparent eonflict of some of the' decisions under the statute, exceedingly difficult, if not almost impossible, to lay down any generá rule to govern in all cases, that may arise. Whenever courts commence to set a limit upon the operation o:‘ an act of the Legislature, in order to except from its operation cases not excepted by provisions of the act, itis generally difficult to fix a limit to such exceptions, orto lay down a general rule embracing all the exceptions which may or may not be made to the operation of the aC. All perhaps, that can or should be said now, in thestate of the decisions in relation to the act under consderation, is, that when eases are presented like those whch have been decided, it is perhaps proper and best thatve follow the decisions already made.

Cases may arise that should be except from the operation of the act, but each case mu st be j uqed as it alises. Some of the cases, excepted from the terms ad letter of the act, have already caused much confusion andliffieulty in its ' administration and each additional excepon which is made by the courts outside of the letter of 1e act, adds to and increases the existing confusion and dficulty. The object of the act among other things w¡ to fix some limit upon litigation, and to put an end asar as possible to the unnecessary delay, obstruction, andlefeat of justice in the courts. As Judge Daniels saián the case of Spengler v. Davy, 15 Gratt., I repeat as aplicable to the case at bar, “ it seems to me, that if th present case were to be excepted out of the operatiorof our’act of jeofails, it would be a very difficult ta to say at what point such exceptions should stop The case is plainly within the letter of the statute ;.nd I can see no sufficient reason for supposing that iis not within its meaning.'” The defendants, as the ecord clearly shows, had ample time and opportunity best the sufficiency of the declaration by filing a deum-er thereto, and to defend themselves against the plain'll’ action, if they in fact had any just and proper deftse, before judgment was rendered against them; but for 'some cause they failed to avail themselves of the time and opportunity, and of the very liberal modes of defense granted to them by the law. They even withdrew the plea they had filed, upon which issue was joined, and suffered the plaintiffs to prove their cause to the court, without making any defense thereto, so far as the record discloses; and if injustice has been done them, it is not the fault of the law, but, so far as appears, because of their own voluntary neglect and laches. Upon the whole, it seems to me that said first error assigned is not 'well taken, and must be overruled.

Second error assigned. — It is very clear to my mind, that the first and second division of this asssignment is not well taken, though the breach of the condition of the bond is not stated in the usual or common form in such cases; still the amount of money and damages claimed under the condition are stated in the declaration and a breach of the condition alleged by the allegation and averment of the- non-payment thereof. It is unnecessary for me to determine whether the declaration in this respect would be held good upon general demurrer, as that question is not before us. It is quite manifest, I think, that the part of the declaration, to which the first and second divisions of this assignment are directed, is good after the final judgment, under the statute of jeofails. And the third divisions of this assignment are not well taken, because of reasons stated in considering the first assignment.

The third assignment of error. — This assignment of error cannot be sustained: See Code W. "Va., sec. 46, ch. 125; secs. 6 and 7, ch. 138; sec. 17, ch. 131. The judgment is, perhaps, not altogether formal, but is substantially correct. It is manifest that the plaintiff in error cannot be prejudiced by the form of the judgment in this ease, in any event.

Thefourth error assigned. — “All judgments, where there has been no appearance by the defendant, are judgments by default within the meaning of the 5th section of chapter 134 of the Code of this State/’ 16 Gratt. 134. The defendants, as we have seen, having appeared and plead to the action, and filed exceptions to a ruling of the court, and voluntarily withdrawn their plea, and suffered the plaintiffs to prove their cause of action, the judgment is not one by default under the statute. The fourth and last exception is not well taken. This disposes of all the errors assigned by the plaintiff in error in his petition. It is not claimed before us that the court erred in its ruling, to which said bill of exceptions was taken and filed by the defendants, and I see no error therein. But it was argued before us by the counsel for the defendants in error, that the judgment rendered in this caséis, and should be considered, a judgment by confession, and as operating as a release of errors under our statute. The judgment entered by the court is as follows: “ This day came the parties, by their attorneys; and the defendants, by their attorney, withdrew their plea at a former day pleaded; thereupon the plaintiffs having proved their cause, it is considered by the court that the plaintiffs recover against the defendants, Joseph Myers and James M Johnson, $301.72, with interest thereon from the 4th day of January 1872, till paid; also their costs by them in their behalf in this cause expended.” Thisjudgment, it seems to me from its form and language, is a judgment rendered upon proof of the cause of action made to the court, and not upon confession of judgment. This judgment is expressed on its face to be a judgment rendered “ upon proof of the cause ” made to the court, and being so expressed, it should therefore be so considered. The judgment is not such a judgment as is entered by non sum informatus; or by confession or cognovit actionem; or by default for defect of plea after appearance; or nil dicit as it is termed ; or by default under our statute for failure to appear after having been duly summoned : Richardson et al v. Jones, 12 Gratt. Judge Lee’s opinion, p. 57 ; Stephens on Pl, side p. 109. In the case in 12 Gratt. at page 57, it is held, that the words employed in the judgment in that case are equivalent to an express acknowledgment of the action for so much, and it will be found, that the judgments as rendered conform very nearly to the precedents of a judgment upon cognovit actionem” &c. In the case of Dunbar v. Lindenberger, 3 Munf. 169, which was an action of assumpsit, the defendant “acknowledged the plaintiff's action,” in general terms, but did not confess judgment for any particular sum. In the case of Strode v. Head, 2 Wash. 192 the defendant “withdrew his plea and confessed judgment generally.”

This cause has been ably argued before us by the counsel on both sides; and especially has the counsel for the plaintiff in error exhibited by his argument great research; but after giving to the subject much consideration, it seems to me that there is no error disclosed by the record, which would authorize me, under the circumstances of the case, to reverse the final judgment rendered' in the cause by the court below.

For the foregoing reasons, the said judgment must be affirmed, and the defendants in error recover against the plaintiffs in error their costs in this Court expended, and damages according to law.

Judgment Aeeirmed.

Case Details

Case Name: Holliday's Ex'rs v. Myers

Court Name: West Virginia Supreme Court

Date Published: Sep 10, 1877

Citation: 11 W. Va. 276

Court Abbreviation: W. Va.