91 W. Va. 88 | W. Va. | 1922
Only a question of practice arises upon this writ of error to a judgment for $1,600.00, rendered in an action of as-sumpsit upon an open account for services rendered. The details of the origin of the claim asserted are not material and need not be stated.
The declaration was filed at August Rules, 1921, together with the affidavit provided for in sec. 46, ch. 125 of the Code. At the nest term of the court, one of the two defendants sued as partners, appeared and tendered two special pleas called pleas in abatement, one of which averred the promises alleged, if any, were made to a person other than the plaintiff, and the other that the court had not jurisdiction because the plaintiff and defendant were partners, in respect of the transaction out of which the cause of action was alleged to have arisen. Both of these having been rejected, he tendered a plea of non-assumpsit, which was admitted over objection. The order shows no joinder of issue, but a jury was impaneled and the evidence of the parties introduced. Thereupon
In an action of assumpsit upon an open account, the filing of the statutory affidavit does not dispense with the necessity of an inquriy of damages, by virtue of the provisions of secs. 44 to .47 of ch. 125 of the Code. Walls v. Zufall & Co., 61 W. Va. 166; Gray v. Mankin, 69 W. Va. 544; Rosenthal v. Fox, 70 W. Va. 752; Rosencrance v. Kelly, 74 W. Va. 100.
In such case the defendant may file his counter affidavit and plea, at any time before execution of the order for inquiry of damages. Philip Cary Mfg. Co. v. Watson, 58 W. Va. 189; Federation Window Glass Co. v. Cameron Window Glass Co., 58 W. Va. 477; Walls v. Zufall & Co., 61 W. Va. 166; Wilson v. Shrader, 73 W. Va. 105; Gray v. Mankin, 69 W. Va., 544.
As the affidavit and plea were tendered before the jury returned a verdict, they were in time, even though the jury may be deemed to have been merely executing the order, and not trying an issue as to liability irrespective of amount. So regarded, the order had not been executed. It was only in process of execution. The statute means what it says. The Legislature has defined the limit of restriction upon delay in making defense, in accordance with its own views as to policy, and, as the whole scheme of such limitation is in derogation of the common law and against common right, the statute is strictly construed. There was no power in the court to extend the limitation. Ash v. Lynch, 72 W. Va. 238. The claim of discretionary power, in view of the peculiar facts and circumstances, is utterly unfounded. The
No matter what the jury was trying, the counter affidavit and plea should have been accepted. If the inquiry of damages was in process of execution, the tender of these papers legally terminated it. If the jury were trying an issue as to liability, the defendants had right to amend their pleadings. Lawson v. Williamson Coal Co., 61 W. Va. 669, 680. If the plea and counter affidavit had been permitted to go in, the trial might have proceeded to verdict and judgment.
The motion for judgment non obstante veredicto was made upon the theory of a confession by the defendant of the plaintiff’s cause of action, by their failure to plead in proper time and manner. There is no room for such a theory. The statute governs in such cases and its interpretation is well settled. Under that interpretation, the defendants tendered their plea and affidavit in time.
■ It is unnecessary to discuss any of the other questions argued in the briefs. The judgment will have to be reversed and the ease remanded for new procedure as to everything subsequent to the declaration, bill of particulars and statutory affidavit. The counter affidavit and plea of non-as-sumpsit and any other proper pleas offered must be admitted.
jReversed and remanded.
