Enos, Hill & Co. v. Stansbury

Green, Judge, announced the opinion of the Court: It is insisted, that the circuit court erred in proceeding with this cause after the expiration of sixty days from October 16th, 1874, as it appears by the record, that on that day “the defendant, Peter Lambrecht, by his attorney alleging, that the plaintiffs reside out of the state, on his motion it was ordered, that this suit be dissmissed, unless security for the payment of costs be given with the clerk of this court within sixty days from this time •” and as the record does not show, that any security for costs was given, the case without any further order stood dismissed at the end of the sixty days. Since 1792 it has been the statute-law of Virginia, that every suit by a non-resident should be dismissed, if security be not given, in sixty days with the clerk after notice to the plaintiff or his attorney, that such security was required. See Revised Code of 1792 (edition of 1803) ch. 76, § 23, p. Ill ; Revised Code of 1819 ch. 128, § 28, p. 495; Code of Virginia 1849 (edition of 1860) ch. 185, § 2, p. 767. Under these statutes it has long been the established practice in Virginia and in this' State to permit the plaintiff at any time after the expiration of the sixty days after the notice or entry of record, that security was required, and before an order was entered actually dismissing the case for want of the security, to give the required security. This practice was finally established as long ago as 1799 by the decision of the genernal court in Reed v. Sue, 1 Va. Cas. 123. But it is insisted, that the Code of West Virginia of 1869, ch. 138, § 2, p. 662, in this respect changed the law, and that under this law after the expiration of the time fixed for giving the security the case stands dismissed without any order dismissing it. The language of our law is : “ No person, who is a non-resident of this State, shall hereafter prosecute any action or suit in any court in this State, until he has (if required by the defendant) filed with the clerk of the court security for the costs in the manner prescribed.” It is much clearer under our statute, than it was under the Virginia statutes, that the suit after the expiration of the time allowed by the court for giving security for costs, did not stand dismissed, and that it required an order subsequently to dismiss [482] it, if the security was not given. Our law simply provides, not that the case shall be dismissed, but only that it shall not be prosecuted, until the security is given. This law is for the benefit of the defendants, and they of course can waive the benefit of it; and this they do, when they without objection permit the suit to be further prosecuted without the security for costs being given. In the case before us they actually after the expiration of the sixty days asked the court to continue the case, instead of asking it to dismiss the case. This was an express waiver of their right then to have it dismissed. They could of course afterwards have withdrawn this waiver and required the giving of the security for costs; but they never did so. The court below did not err in proceeding further with the case. The next enquiry is: Did the circuit court err in refusing to set aside the verdict and in entering up a judgment on the verdict'in favor of the defendants? There had been a writ of enquiry of damages awarded against both defendants at .rules. Only one of them appeared and set aside the office-judgment and pleaded non-assumpsit, on which issue was joined. At a subsequent term of the court this issue was tried by the jury. It is obvious, that both the court and the parties had forgotten the state of fhe pleadings and proceeded^ as if the office-judgment had been set aside by both of the defendants pleading non-assumpsit. This is shown by the fact, that the jury found a verdict for both defendants, and the court in pursuance of it entered up a judgment for both defendants. It is also shown by the bill of exceptions, by which it appears, that both defendants defended the case before the jury on the trial and offered evidence in their behalf. It also appears by the affidavit of the defendant, who did not appear, but which is properly no part of the record, though copied into it by the clerk. Of course there could be no judgment against or in favor of the defendant, who had not appeared, until the writ of enquiry was executed. The verdict of a jury in favor of a defendant, who had not appeared, was clearly erroneous and should have been set aside ; and this cause-must by this Court be remanded to the circuit court to be proceeded in regularly. This is not the only error committed by inadvertence in [483] the circuit court. The bill of particulars is an account of the plaintiffs made against one of the defendants only. It should of course before a new trial be corrected. I take it for granted, that when the cause is remanded, both the defendants will plead non-assmupsit, as they evidently thought they already had done, and as no advantage can accrue to either of them from one of tlxem failing to plead. On the trial to be had, when the cause is remanded, the meaning of section 19 of chapter 131 of the Code of "West Virginia will have to be considered to some extent by the circuit court, though if the case is that now presented by this record, it will not be necessary for the court to determine the precise meaning and scope of this section ; and we propose to express our views of it only to the extent, to which from the case now presented by this record the circuit court can be called upon to determine its meaning. This section (see page 628 of the Code) is as followá : “In an action founded on a contract against two or more defendants, although the plaintiff may be barred as to one or more of them, yet he may have judgment against any other or others of the defendants, against whom he would have been entitled to recover, if he had sued them only.” I am strongly inclined to the opinion, that the true meaning of this section is to be found by construing this section, as though the words, with which it closes, “ if he had sued them only,” meant “ if he had sued them only on the contract alleged in the declaration.” For my views see Choen v. Guthrie et al., 15 W. Va. 108. These views however differ from those expressed by Judge Staples in Bush v. Campbell, 20 Gratt. 430. His opinion is, that the true meaning of this section is to be found by construing its concluding words, “if he had sued them only,” as if they meant “ if he had sued them only on the contract proven by the evidence on the trial.” The difference between these two constructions is, that by the first the operation of the 19th section of chapter 131 of our Code, page 628, would be confined to cases, where the declaration set out a contract, on vdiich the plaintiff could in a proper suit recover either jointly or severally against the defendants, as a negotiable note endorsed, or a joint and several contract j while by the second view this section would be construed as applying to a declaration, which stated only a joint contract. [484] It is unnecessary in tbis case to decide, which of these interpretations is right; for the evidence in this case shows, that whichever of these views be correct, this 19th section of chapter 131 of our Code can have no application or effect on this particular case, if it be substantially that now shown by the evidence certified to this Court as the evidence at the former trial. It is obvious from the wording of this section that it was not intended to authorize a plaintiff to sue two defendants on a joint demand, and in the same declaration to include a distinct demand against one of the defendants severally,, and to have a verdict and judgment in the suit against the two defendants jointly for what they might be proven to owe, and against the one defendant severally for what he might be proven to owe, and if the two defendants proved, that they had fully paid what they owed, to permit the plaintiff to recover what he might prove, that the one defendant owed him individually. In such a case this statute would obviously have no application ; and the case would be tried and judgment rendered on the principles of the common law and the jury could only find a verdict against the two defendants jointly for what they jointly owed, and could not render any verdict on the separate claim against the one defendant individually, though the items of this claim might have been mingled with those against the two defendants jointly in the bill of particulars. That this is the character of this case is disclosed by the evidence certified ; and if on the new trial it remains substantially the same, the circuit court should be goyerned by these principles in this second trial. The judgment of the circuit court of April 22, 1876, must therefore be set aside, reversed and annulled ; and the plaintiffs in error must recover of the defendants in error their costs expended in this Court; and this Court proceeding to render such judgment, as the circuit court ought to have rendered, the verdict of the jury must be set aside, and this case remanded to the circuit court of Mason county to be therein proceeded with according to the principles laid down in this opinion and further according to law. •Judges Haymond and Johnson Concurred. Judgment Reversed. Cause Remanded.