Strachan v. Mutual Fire Insurance

Kenna, Judge: These chancery proceedings were brought in the Circuit Court of Mineral County, against The Mutual Fire Insurance Company in Harford County, Bel Air, Maryland, one by Lydia Strachan, an insane person, by Hugh D. Strachan, Committee, the other by Strachan in his own right. The sole question, involved being one that turns upon identical procedure, the cases were, by agreement, submitted as one. The purpose of each was to collect for a total loss under a fire insurance contract alleged to have been entered into between the plaintiff and the defendant by reason of an application made and premium paid through an authorized agent on December 5, 1941, loss having occurred on December 7 of that year before the issuance of a policy pursuant to the application. A de-cretal judgment for the plaintiff was entered in each proceeding as upon a bill taken for confessed under the provisions of Code, 56-4-56, at the 1946 November term, the defendant’s demurrer to plaintiff’s amended bill of com *694 plaint having been overruled November 5, 1945, and, without an extension of time, its answer lodged in the clerk’s office on August 17, 1946. After demurrer sustained to the original bill of complaint a demurrer to an amended bill was filed October 4, 1943. On November 5, 1945, demurrer to the amended bill was overruled. Nothing further was done in either cause until after the expiration of both the January and April terms, 1946. On July 9, 1946, the plaintiff gave notice to take depositions which was done on August 1. On August 6, 1946, an order was entered filing the plaintiff’s depositions and reciting that it appearing that the defendant desired time to take depositions and to file an answer both causes were continued to the next term. On August 17, 1946, the defendant’s answers were lodged in the clerk’s office and on September 30 defendant’s depositions were taken, plaintiff appearing “specially.” At the November term, 1946, the plaintiff moved to expunge the answers and depositions of the defendant and to enter a decree in his favor for the amount shown by the allegations of his bills of complaint and by his depositions taken. This was accordingly done and it was to these decrees that appeals were granted by this Court. As sustaining its contention that under Code, 56-4-56, the expiration of fifteen days after demurrer overruled does not prevent the trial chancellor from permitting the filing of an answer to the bill of complaint without having extended the time therefor, the appellant quotes the following language from Mathews v. Dale, 118 W. Va. 303, 306, 190 S. E. 338: “On the questions of procedure, we hold that the failure of the plaintiff to move for a decree, as he might have done under Code 56-4-56, and his subsequent agreement on the facts submitted to the court below, preclude him from raising the question of the delay in filing the answer of the defendant.” It is to be noted that the language quoted, speaking exactly, does not deal with the right of the court to accept *695 the answer after the expiration of the time prescribed by statute, but deals only with the conduct of the plaintiff in submitting his case on facts agreed estopping him from raising that question. It might have been said that a submission upon an agreed statement of facts dispenses with the necessity for an answer. See National Surety Company v. Conley, 108 W. Va. 589, 592, 152 S. E. 3; Sawyer v. Corse, 17 Graft. 230. However, the principle invoked, if not expressly upheld, has been at least approved in two other West Virginia cases. In Carleton Mining & Power Co. v. West Virginia Northern R. Co., 113 W. Va. 20, 21, 166 S. E. 536, in affirming the Circuit Court of Preston County this comment occurs in the body of the opinion: “After the statutory period for filing the answer had expired, the chancellor, in exercise of sound discretion, permitted an answer to be filed on behalf of the defendant. Code 1931, 56-4-56.” And in Altmeyer v. Fassig, et al., 114 W. Va. 266, 171 S. E. 529, we held that where a demurrer to a bill of complaint had been overruled at a special term held September 10 that an order could be entered on October 11 regularly filing an answer thereto, basing the decision upon the fact that acting upon the demurrer at a special term violated a rule of the circuit court, and consequently furnished good cause for extending the time to file an answer under Code, 56-4-56. It probably would have been more sound to hold that the order overruling the demurrer and entered at a special term in violation of the court’s rule was void, instead of that it furnished good cause for an extension of time. As opposed to the holdings in the Carleton case and the Altmeyer case we have the statement of this Court in Barnes v. Warth, Judge, 124 W. Va. 773, 22 S. E. 2d 547, the syllabus of which reads as follows: “Under the provisions of Code, 56-4-56, a trial chancellor cannot enlarge the time for filing answer to a bill of complaint after a- demurrer or plea thereto has been overruled, unless motion for *696 such enlargement is made within fifteen days from the entry of the order overruling demurrer or plea.” This holding follows the reasoning of Kinkead v. Securo, 112 W. Va. 671, 166 S. E. 382, where this Court held that an answer tendered after the expiration of thirty days from the final day of the term, the time fixed upon overruling the demurrer to the bill, could not be received, although no decree had been entered at the time it was tendered. See also Hughes v. McElwee, 120 W. Va. 176, 179, 197 S. E. 631. We realize fully that as between the two directly, though not expressly, conflicting constructions of Code, 56-4-56, our most recent decision, the Worth case, has chosen the more rigid. This, we believe, is more in keeping with the remedy intended to be effected by its adoption in the Code of 1931. Prior to that time, under the then statute, upon demurrer overruled the plaintiff was entitled to a rule to answer, the effect of which was to delay the entry of a final decree until the expiration of the granted time. After the expiration of the rule the defendant could answer until and unless a final decree was actually spread upon the records. Certainly the purpose of the Legislature in adopting Code, 56-4-56, was to make chancery proceedings more efficacious. See discussion by Prof. Leo Carlin, 40 W. Va. Law Quarterly, 360. Under Code, 56-4-57, the defendant in a chancery proceeding who has not subjected himself to the provisions of Code, 56-4-56, may still file his answer at any time before final decree. If by pleading or demurring to the bill of complaint he has come within the terms of the last named section, then by its express provisions Code, 56-4-57, does not apply, and consequently the right to file an answer before final decree, even subject to the plaintiff’s right at any time to make his decree pro confesso final, is not provided by statute. The answer then must be filed as provided in Code, 56-4-56. Upon demurrer to the bill of complaint overruled or plea overruled, failure *697 to follow the procedure provided by Code, 56-4-56, operates to confer the absolute right to a default decree upon the plaintiff. It is to be borne in mind that this seemingly harsh rule applies only to a defendant who has appeared and is represented by counsel and, further, that the terms of the statute fully protect diligent litigants. Perceiving no apparent error, the decree of the Circuit Court of Mineral County is affirmed. Affirmed.