Smith & Atkinson v. Knight

Citations

• 14 W. Va. 749
• 1879 W. Va. LEXIS 7

Syllabus

<p>All judgments, where there has been no appearence by the defendant, are judgments by default, within the meaning of the act. Code, eh. 134, ($3, 5, 6, pp.' 637, 638. And a proceeding by notice, although not a technical judgment by default at common law, falls within the equity, and was intended to be embraced within the scope of these provisions of the Code.</p> <p>Where the defendant has not appeared and made defense to a motion, upon a notice, against him and his sureties, and judgment is rendered against him by the court at the instance of the plaintiff; and the record of the judgment erroneously states: “this day came the parties by their attorneys, and neither party requiring a jury, all matters of law and fact are submitted to the court,” it is not error for the court, upon the motion of the defendant at the same term to set aside the judgment. And the court may do so ex mero motu.</p> <p>The defendant’s only ground for a continuance, and also ground of defense is an order, made by the county court at a term set apart exclusively for police and fiscal affairs of the county, except business within the general jurisdiction, which'said order stayed the execution of they?, fa. in his hands as sheriff; plaintiff claims that said order is a nullity, and therefore not ground for continuance or defense. Held :</p> <p>That as a ground of continuance it was addressed to the sound discretion of the judge under the circumstances; and as the legality and effect of the order entered into the merits of the case, and had not been determined by the court below, the case not having been submitted on the merits by the parties to the court in lieu of a jury, the Appellate Court will not now consider the question on the merits.</p>