149 S.E. 838 | W. Va. | 1929
The plaintiff instituted an action on April 25, 1928, against defendant, a foreign corporation, in the court of common pleas of Kanawha County. Service of process was accepted by the state auditor. A trial was had on June 27, 1928, and no appearance being made by defendant, the jury found for the plaintiff for $672.00, and the court entered judgment for that amount. On July 12, 1928, a later day of the same term, defendant appeared and moved the court to set aside the judgment, the main ground being that it did not receive a copy of the summons and had no knowledge of the suit until after judgment was rendered. Filed in support of the motion are affidavits of (1) W. E. White, in charge of the insurance department in the auditor's office, who says that the records show that a copy of the summons was sent defendant by registered mail, and that an acknowledgement of receipt was requested by his office, but that none was received; and (2) H. J. Wyatt, vice-president of defendant, who says that he has charge of all correspondence from the auditor of West Virginia, and that the summons was never received by his office; that defendant had no knowledge of the suit until after judgment had been rendered against it; and that it has a good defense.
The court of common pleas refused to set aside its judgment, and the circuit court upheld that finding.
A judgment by default, such as the one here, may be set aside during the term at which it is rendered if "good cause be shown therefor". Code, Chapter 125, section 47. To constitute a good cause, under the statute, it must be shown that the appearance of the defendant was prevented by "fraud, accident, mistake, surprise or some other adventitious circumstance beyond the control of the party and free from neglect on his part."Post v. Carr,
The ruling of the lower court is, therefore, reversed and the judgment against the defendant is set aside. This conclusion renders unnecessary a discussion of other points of error.
Reversed. *605