Monongahela Bank v. Watson

150 S.E. 731, 108 W. Va. 250, 1929 W. Va. LEXIS 213

• Court: West Virginia Supreme Court
• Decided: November 26, 1929
• Docket: 6466
• Status: Published

Opinions

Hatcher, Judge:

On August 28, 1928, notice of motion for judgment was served on defendant by plaintiff, returnable September 18th. The notice was filed in the clerk’s office on August 29th. On tbe return day of tbe notice, at a special term of the circuit court, the motion was docketed and default judgment taken, the plaintiff: waiving a jury. The lower court refused to reverse the judgment at the nest succeeding regular term. The validity of the judgment is questioned here on the ground that (a) it is void for lack of jurisdiction, and (b). to allow such a judgment would give an unfair advantage to a creditor, who knew of the special term, over one not so informed.

(a) Section 8, Chapter 112, Code, provides that “Any cause, civil or criminal, and any motion or proceeding ready for trial or hearing, may be tried, heard and determined at any such special term, the same as if it were a regular term of such court.” No plainer statement of jurisdiction could be made. A special term is thereby placed on an absolute parity with a regular term, as to the hearing of motions. The procedure prescribed in section 6 of Chapter 121, Code 1923, as amended by Acts 1925, Chapter 81, section 6, was strictly followed in this case. The motion was therefore ready for trial. The judgment was within the jurisdiction of the court.

(b) If the statute allows an unfair advantage to the diligent creditor, that is a matter of policy which is referable to the legislature, not the judiciary. Besides, a preference thus secured against an insolvent debtor is fruitless under the bankruptcy laws if the other creditors act promptly.

The judgment is affirmed.

Affirmed.