11 W. Va. 198 | W. Va. | 1877
delivered the opinion of the Court:
The plaintiff brought an action of debt in the circuit court of Jefferson county against the defendant, to re
If a defendant, against whom judgment is, entered in the office, shall before it becomes final, appearand plead to
“ 1st. If the term of the circuit court last more than fifteen days, all office judgments, in which no writ of inquiry is ordered, became final judgments on the fifteenth day, and cannot afterwards be set aside by the court.”
“ 2d. When a court authorizes executions to issue upon judgments, recovered during the term, the judgments become final from the time when executions may issue, and cannot afterwards be set aside by the court.”
“ 3d. A court having sei aside an office judgment and the execution, which had issued upon it after the fifteenth day of the term, and permitted the defendant to plead, the plaintiff may have a supersedeas from this order; and though that part of the judgment, setting aside the judgment, is interlocutory, the appellate court will reverse the whole order. ”
In this case on the fifteenth day of the term, the office judgment not having been set aside, final judgment was entered in court. After that day and during the same term, a general order was made, allowing executions to issue on judgment and decrees of that term after ten days
“ 46. Every judgment entered in the office in a case,*206 wherein there is no order for an inquiry of damages, and ’ every non-suit or dismission entered therein, shall, if not previously set aside, become a final judgment of the last day of the next term of the court, or the fifteenth day thereof (whichever shall happen first), and the same shall be entered up in court either during such term or after its adjournment, by the clerk, and in either case shall have the same effect, by way of lien or otherwise, as other judgments entered in the court during such term. But no such judgment shall be so entered up (except non-suits and dismissions) until the plaintiff, his agent or’ attorney, shall file in the cause his affidavit, stating that he verily believes there is due from the defendant to the plaintiff, upon the demand in controversy in the suit, including principal and interest, a sum certain, to be stated in the affidavit, after deducting all just credits, payments and sets-off to which the defendant is entitled. Such judgment shall be for the plaintiff for the amount so stated, with interest from the date of the judgment, and such other judgment or order may be rendered and made therein, as' may be proper. If such affidavit be not made, or the action be one in which an order for an inquiry of. damages has been entered, the plaintiff can only recover judgment upon proving his case. If the defendant has not appeared, and a jury be impanneled in any such action, their oath shall be that they will well and truly find the amount if any, which the plaintiff is entitled to recover in the action, and a true verdict render according to the evidence.”
“47. If a defendant, against whom judgment is entered in the office, shall, before it becomes final, appear and plead to issue, it shall be set aside, unless an order for ifiquiry of damages has been executed, in which case it shall not be set aside without good cause. Any such issue may be tried at the same term, unless the defendant show good cause for a continuance.”
It does not appear that the affidavit, required and prescribed by the 46th section, was ever filed or offered to
'Whether the office judgment becomes a final judgment on the fifteenth day of the term, is manifestly conditional and dependent upon the filing of the affidavit required. If the affidavit is not filed, then no judgment can be entered by the court during the term, or after its adjournment by the clerk. The affidavit fixes the amount of debt for which the judgment may be entered; and how is it possible for there to be a final judgment for a debt, without some amount or sum specified ? The affidavit is clearly a pre-requisite to the office judgment becoming a final judgment. To the end that a proper and correct interpretation of said 46th section may be made, and the intent of the Legislature arrived at, it is proper, and I may add necessary, that all the provisions of the section should be considered together. The true meaning and contemplation of the section, it seems to me, is that it is left optional with the plaintiff, whether the office judgment shall become a “final” judgment on the fifteenth day of the term, or the last day of the term, whichever may happen first, if the defendant fails to appear in court and plead, or whether he will seek to recover judgment upon proof of his case. .If he elects to file and does file the affidavit required by the 46th section, in proper time, then the office judgment becomes final; but if he does not file the affidavit required, and chooses to seek a recovery of judgment in the action upon proof of his case he may do so. I think the affidavit required may be filed during the term of the court or afterwards and judgment entered by the clerk at any time before the next regular term of the court. If the affidavit is filed during the term of the court then the final judgment may be entered up by the court; and if the affidavit be filed during the term of the court, and the final judgment be not entered in court before its adjournment, or the
In the case at bar the plaintiff failed to file, or offer t0 file, the said required affidavit in the cause, during the term or at any time thereafter. But at the next ensuing regular term of the court, and on the 3d day of April 1875, the cause was on the docket, and the plea of non est factum was properly withdrawn, and the defendant without objection from the plaintiff pleaded nil debit, and the plaintiff then and there replied generally to the plea, and issue was thereon joined. It is true, that no entry appears upon the record to the effect, that the office judg
Plaintiffs first assignment of error in his petition and second in the brief of his counsel:
This assignment is that the “ court erred in refusing to compel the plaintiff to join in the defendant’s demurrer. ” It appears by the plaintiff’s first bill of exceptions, that the plaintiff, to maintain the issue on his part, gave in evidence to the jury a note, claimed to have been executed by the defendant’s testator, which with the endorsement thereon is as follows:
“ Borrowed and received of J. H. L. Hunter, one thousand dollars, ($1000.00) for value received, with interest from date and payable on demand. ”
“ Given under my hand and seal this 31st day of August 1869.
[Stamp 50cents]. John Snyder.”
Endorsement thereon : — “ By interest paid up to 1st September 1872, $180.00. — J. H. L. Hunter.
“ (Paper shown to witness, Dr. William Hunter, and referred to by him in answer to fourth question in chief.)
“Cleon Moore, N. P.,
“ May 6, 1875.” -
And that thereupon plaintiff rested his case, and then before the defendant had introduced any evidence the plaintiff, by his counsel, moved the court to require the
The second error assigned in the petition is: “ The court erred in permitting the plaintiff to introduce other and additional evidence, after the defendant had demurred to plaintiff's evidence.”
This assignment of error is not well taken, for the reasons stated in considering the last preceding assignment of error.
The third error assigned in the petition is: “The court erred in refusing to permit defendant to introduce the evidence of witness Hendricks, as appears by Bill of Exceptions No. 2.”
It appears by the defendant's Bill, of Exceptions No. 2, that the defendant in support of his plea, “offered to prove by witness Hendricks, that the plaintiff at a date
For the foregoing reasons I see no error in the judgment of the circuit court of the county of Jefferson, rendered in the case on the 27th day of April 1876. The said judgment is therefore affirmed, with costs to the defendants in error, against the plaintiffs in error, and damages according to law.
Judgment Affirmed.