163 S.E. 2 | W. Va. | 1932
This is an action of trespass on the case, brought in Raleigh County. From a judgment in favor of plaintiff the defendant secured a writ of error here.
The first question involved is the jurisdiction of the trial court. Summons was served on the defendant in Raleigh County on July 5, 1930, returnable to the July Rules, when the declaration was filed. The declaration charges that the alleged wrong to plaintiff was committed in Kanawha County. At the following August Rules, the defendant filed a plea in abatement in the following form:
"State of West Virginia, County of Raleigh, ss:
IN THE CIRCUIT COURT OF SAID COUNTY
Cliff Ross } Ads. } Trespass on the Case Nannie Richardson }
And the said Cliff Ross, in his own proper person, comes and defends the wrong and injury, etc., and for plea says that before and at the commencement of the said action of the said Nannie Richardson, he the said Cliff Ross, was, and from thence hitherto has been, and still is, residing in the county of Kanawha, in the said State of West Virginia, and not in the said County of Raleigh; and that the cause of action herein sued on did not, nor did any part thereof, arise in the said County of Raleigh; but that the said cause of action herein sued on did arise, and every part hereof arose, in the said County of Kanawha.
And this he is ready to verify; wherefore he prays judgment if the court here will take cognizance of, the action aforesaid.
CLIFF ROSS ___________________ Counsel
State of West Virginia County of Kanawha. to-wit:
Cliff Ross, being duly sworn, says that he is the defendant named in the foregoing plea, and that the facts and allegations therein contained, are true, *467 except as they are therein stated to be on information, and that in so far as they are therein stated to be upon information, he believes them to be true.
CLIFF ROSS
Taken, subscribed and sworn to before me this __________ day of July, 1930.
My commission expires ___________________
____________________ Notary Public
(Endorsement on back)
Plea in Abatement received and filed at August Rules, 1930. Aug. 4, 1930.
VAN HUNTER, Clerk."
At the August term of the circuit court the plaintiff asked leave to file a written motion to strike from the record the foregoing plea, to the filing of which motion the record recites "the defendant objected." The objection was overruled and the motion filed. Then the defendant "appeared specially," and moved for permission to show by testimony that the plea was duly sworn to before it was filed, and that the officer administering the oath inadvertently omitted to sign the jurat to the affidavit. The permission was granted and the testimony taken. Upon consideration of the testimony and while the defendant was "still appearing specially," the court refused "to grant the defendant leave to have the notary public execute the jurat to the affidavit to said plea showing where and when and before whom the said affidavit was sworn to." The court then struck from the record the defendant's plea.
The testimony relating to the plea shows that the defendant actually signed and swore to it on August 2, 1930, in Raleigh County before C. O. Dunn, a notary public, of that county; that Dunn was an attorney who had been employed by the defendant solely to prepare and file the plea and attend to "whatever should arise on" the plea; and that Dunn, forgetting to correct the date, to change the name Kanawha County to Raleigh County, and to sign his name to the jurat, filed the plea with the clerk.
Plaintiff calls attention to the fact that a bill of exceptions was not taken to the ruling of the court on the plea within *468
thirty days after the August term 1930 ended. The thirty day limit for taking bills of exceptions relates to final orders and judgments. Barker v. Stephenson,
Plaintiff contends that the initial appearance of defendant's attorney to her motion on the plea was a general appearance. There is one phrase, "the defendant objected," in the first order which would imply such an appearance, but that implication fails because (1) Dunn testified that his employment was special and limited to "whatever should arise on the plea," and (2) the entire orders relative to the proceedings on the plea show that Dunn was attempting to appear only specially.
Plaintiff also points out that the primary motion of defendant as cited in the record did not include correction of the county and date in the affidavit. The defendant must have enlarged his motion before it was passed upon, however, as the record discloses he was denied leave to have the affidavit show "where and when and before whom" it was sworn to.
Plaintiff criticizes Dunn for acting both as notary and attorney for defendant. Irrespective of any ethical question involved, Dunn's relation to defendant as attorney did not invalidate his action as notary.
There was little, if any, ceremony in administering the oath to defendant. No particular ceremony was necessary. Both the defendant and Dunn intended what the defendant did to constitute the act of swearing. This was sufficient. 2 C. J. 337-8.
In Farmer's Bank v. Gettinger,
Code 1923, chapter 125, section 39, prescribes that a plea in abatement shall be verified by affidavit when "received." The plea herein was so verified in fact (though not in form) when received, and we are of opinion that the circuit court erred in refusing to allow the notary to evidence the verification formally, and in striking out the plea. Under Code 1923, chapter 123, sections 1 and 2, this action could be brought only in the county where the defendant resided or in the county where the cause of action arose. See Toledo Co. v. Thomas,
Reversed.