57 W. Va. 149 | W. Va. | 1905
On the 16th day of September, 1903, H. A. Risher instituted an action of amiurpxit against the Wheeling Roofing and Cornice Company in the circuit court of Ohio county and filed his declaration and bill of particulars therein at October rules, 1903, and the clerk entered the common order. At November rules the defendant appeared and filed a plea of payment, concluding to the country, 'as to the sum of $7Y6.93 part of the sums in the declaration mentioned, and by an addition to the plea, acknowledged itself indebted to the plaintiff in the sum of $10.00, the residue of plaintiff’s claim as shown by his bill of particulars, and confessed or offered to confess judgment therefor, and the clerk made the following entries on the rule docket. Common order confirmed and writ of enquiry, plea of payment and general issue filed by the defendant, plea of payment and confession of judgment. Without any proceedings at rules the action was placed on the docket for the November term of the circuit court, which began on the 16th of November, 1903. On the first day of the term the defendant moved the court to remand the action to rules, and the ai'guments on the motion were set down’for November 19th, 1903. On the 19th of December, 1903,Dm order was entered whereby it appears-substantially as follow's: The defendant having at a former day of the term moved the court to strike this action from the docket and remand it to rules on the ground that it vras improperly on the docket, the plaintiff having at the same time moved the court to strike from the file the plea in writing filed by the defendant at November rules on the ground that it was a sham plea, tendered with the motion two affidavits; the evidence of the deputy clerk was heard; the defendant tendered an affidavit in opposition to the plaintiff’s motion; the ques
The defenses in this action are said to be technical. They may be technical, but are important, and if legal, are binding on the court. ■ In order that the proceedings may appear in their proper sequence, the detailed statement above is given.
The principal questions arising upon the record are: First, Did the proceedings at rules or in court operate as a dis continuance of the action? Second, Should the defendnat have been granted a continuance as a matter of right? Third, Should the court have admitted the second and third pleas of a former suit pending? These are not the only questions arising, but in our judgment are the most material. In determining the question as to a discontinuance, we must consider what was the legal effect of the addition to the plea of payment, acknowledging indebtedness and confessing or offering to confess judgment for that part of the plaintiff’s claim not answered by the plea. Wc think this addition to the plea cannot lie treated as more than an offer to confess judgment for that part not answered by the plea, and an acknowledgment of the plaintiff’s claim to that extent. We do not consider it a confession of judgment under the statute (Code, chapter 125, section 43,) because such confession must lie assented to by the plaintiff. The sum must be such as the plaintiff is willing to accept. We think the addition to the plea must, for the purpose of a discontinuance, be treated in the same manner as a failure to plead to the part of plaintiff’s claim not answered by the plea of payment. In support of the view that there was a technical
There being no discontinuance either at rules or in court, was the defendant as a matter of right entitled to a continuance under the circumstances of this case? We are cited to the case of Southall v. Exchange Bank, supra, as sustaining the right of the defendant to a continuance. Defendant claims that because of the entry by the clerk of the plea of the general issue and of the common order confirmed as to the whole of the plaintiff’s claim, which entry was afterwards stricken out by the court, he was entitled as a matter of right to a continuance on the ground that, the plaintilff only placed himself rectus in curia at that term. The practice formerly was different from when it is in this State as to the plea of payment. The plea of pay
We will now consider the question as to the admission of the two pleas in abatement. These pleas tendered by the de
It is assigned as error that the court entered judgment on the 3rd day of February, 1904, for $786.93, with interest from the 26th day of July, 1903. If allowing interest from a previous day, instead of computing it up to the day of
It is also assigned as error .that the judgment is not sustained by the proper evidence heard at the trial. We must presume that the court excluded from its mind all improper testimony, if the proper testimony is sufficient to sustain the judgment. Mer. Co. v. Truax, 44 W. Va. 531; State v. Denoon, 34 W. Va. 139. The defendant offered no testimony, and we think the proper evidence offered at the trial by the plaintiff fully sustains the judgment of the lower court.
For the reasons stated above, the judgment entered by .the circuit court of Ohio county on the 3rd day of February, 1904, in favor of the plaintiff, H. A. Risher, against the defendant, the Wheeling Roofing and Cornice Company, is affirmed.
Affirmed.