80 W. Va. 252 | W. Va. | 1917
The argument submitted on this writ of error to a judgment by default for the sum of $1,269.20, rendered in an action of assumpsit, is limited to a single question, namely, the sufficiency of the affidavit filed with the declaration, to prevent the setting aside of the office judgment, in the absence of a counter affidavit denying liability, and to prove the amount of the plaintiff’s demand, for the purpose of entry of final judgment by default.
Under the statute, Code, ch. 125, secs. 46 and 47, a defendant has right, on filing a counter affidavit, when the plaintiff has filed his statutory affidavit, to appear and plead to issue, at any time within the term at which the office judgment would become final, provided he appears before actual entry thereof; and, after actual entry thereof, within the term, he can make defense, if he shows good cause for setting aside the office judgment. In such case, he must tender his plea and a counter affidavit, denying liability in whole or in part, as well as show good cause for not having appeared and pleaded before the entry of the judgment or execution of the writ of inquiry. Citizens Trust and Guaranty Co. v. Young, Adm’x., 75 W. Va. 241.
Though the judgment here complained of had not been actually entered up, at the time of the appearance of the defendant, the order containing.it had been prepared and endorsed for entry. In this state of the case, he moved the court to set aside and reverse the unentered order and the endorsement thereon, tendered his demurrer to the declaration, asked leave until the next day to set out specific grounds of the motion and demurrer, in writing, and asked that the
In view of the appearance and tender of a demurrer, before the judgment order was actually entered in the records of the court, it is deemed unnecessary to inquire whether the affidavit relied upon for preclusion of right to vacate the office judgment and plead to issue, in the absence of a counter affidavit, is sufficient or not. It says the account to which it is appended is just and correct, that no part of the same has been paid and that after all just credits and sets off, there is due from the defendant to the plaintiffs $1,253.25, with interest on the two items thereof from their dates. In this informal way, it incorporates the most essential requirements of the statute, and, if a substantial compliance with the statutory requirements suffices, it may be good. Ordin
The statutory provisions relied upon by the plaintiffs, as precluding right of defense upon the merits of the case, both derogate from the common law and regulate or restrict the great constitutional right of trial by jury. At the same time, it bars meritorious defenses for mere misconduct in litigation, non-compliance with statutory requirements. For these reasons, they must be strictly construed. In other words, a plaintiff cannot have the benefit of a judgment on mere ex parte proof of his demands, because of delay in the interposition of defenses on the merits, unless he brings himself within the express terms of the statute. ' These terms cannot be enlarged by construction, in furtherenee of what may be deemed legislative policy. Bank of Weston v. Thomas, 75 W. Va. 321; Harrison v. Leech, 4 W. Va. 383; Davis v. Commonwealth, 17 Gratt. 617.
For the same reason, these provisions must be so interpreted, when they apply, as to permit them to operate fairly and reasonably. It was not the purpose or design of the legislature to make them operate harshly or unjustly, nor to enable a plaintiff to avoid defenses. Their purpose is to compel prompt assertion of defenses. They bar the right of defense for negligence and delay, but they do it in a reasonable, 'fair and orderly way, Aid the defendant has all the time for defense, expressly and impliedly allowed
Section 47 of ch. 125, permits a defendant against whom a judgment has been entered to appear at any time before the end of the term at which the judgment becomes final and plead to issue, provided he files a counter affidavit, when such an affidavit is necessary, and provided further that the judgment has not been entered up in court nor the order for an inquiry for damages, when there is one, executed. Obviously, the mere rendition of the judgment, after declaration of default, does not preclude the right of appearance and defense. The statute does not say so. To bar defense, the judgment must have been actually entered upon the order book. Under a similar statute, applicable to suits in equity and impliedly denying right to file an answer after entry of a final decree, it has been held that the defendant has the right to file his answer at any time before such decree has been actually entered, and that such right is not barred by the mere preparation and award of the decree and direction to the clerk to enter it. Ash v. Lynch, 72 W. Va. 238. In this case, the defendant appeared and tendered his demurrer to the declaration, before the judgment order was entered, and protested against the entry thereof. Though his diagnosis of the situation was not accurate nor his conception of his own right entirely clear, his resistance of the procedure against him was vigorous and earnest. When he offered to make his defense, the plaintiffs interposed an objection on the ground of delay, and the court did not overrule the objection and accord him the right the law gave him. It should have promptly overruled the objection, permitted the demurrer to be filed and passed upon it. If it was not well taken, the court should have said so and then permitted the filing of the counter affidavit and plea of non-assumpsit, if tendered. Evidently they were not tendered with the demurrer, nor until the next day after the entry of the judgment, but the judgment could not be properly entered, until after reception and disposition of the demurrer. The defendant had clear legal right to demurr to the declaration, whether it was good or bad, and to have his demurrer dis
The right reserved by the statute to “appear and plead to issue” is broad and comprehensive. It saves all defenses going to the merits of the case, including that of a challenge of the sufficiency of the declaration. The tender of a demurrer involves an appearance. Bank v. Ralphsnyder, 54 W. Va. 231; McGraw v. Roller, 53 W. Va. 75; Steenrod v. Railroad Co., 25 W. Va. 133, 137. The statute does not say the defendant shall .appear only to plead matter of fact. Theoretically, every ease involves two issues, one of law and. the other of fact. The demurrer raising an issue of law may not be technically and strictly a plea, but it is a pleading, and when a defendant clemurrs to a declaration, he pleads to an issue. If the issue of law so developed is determined against him, he still has clear right to plead to an issue of fact. The statute gives him both and he may avail himself of them simultaneously or successively as he may elect. Nor does it authorize the court to decline to entertain either, if tendered before actual entry of the judgment • and within the term at which the office judgment would become final, if not set aside, or to enter a judgment without disposition thereof.
Reversed and remanded.