term, passing by the intermediate July term. This was held, to be a discontinuance, and a judgment subsequently rendered for the plaintiff on the same notice is erroneous. Amis v. Koger, 7 Leigh 221. See the title CONTINUANCES, vol. 3, p. 300. Waiver of Motion.-An overruled motion to quash a writ or return, made alone before any other defense is presented, is not waived by a subsequent plea. Quesenberry v. People's Bldg., etc., Ass'n, 44 W. Va. 512, 30 S. E. 73. Appearances to a motion by consent continuances does not preclude a motion to quash the notice for its defects. Shepherd v. Brown, 30 W. Va. 13, 3 S. E. 186; Quesenberry v. People's Bldg., etc., Ass'n, 44 W. Va. 512, 30 S. E. 73. Rule to Show Cause.-A rule to show cause, where it begins, "The State of West Virginia: To the sheriff of," etc., is held to run in the name of the state. Trimble v. Patton, 5 W. Va. 432. On the hearing of a rule to show cause, it is not error to hear oral testimony. Trimble v. Patton, 5 W. Va. 432. The summary rule to show cause, by creditors, against sureties, for payment, instead of the common-law proceeding, is not only erroneous, but void. Thurman v. Morgan, 79 Va. 367; Nulton v. Isaacs, 30 Gratt. 726, 740. Motion to Recommit.-Where judgment was rendered on motion to recover money, a motion to recommit may be allowed to the appellant in order that he may show himself entitled to credits on the account, if it appear probable, from the evidence in support of the motion, that he is entitled to such credits. Snickers v. Dorsey, 2 Munf. 505. 11. Motions for Judgment to Recover Money on Contract. summary remedies were given by various statutes for the recovery of claims due to the commonwealth, and for many claims due to individuals by motion on ten days' notice. The revisors seeing that these proceedings had worked well, proposed to extend the remedy by motion on notice to all cases in which a person was entitled to recover money by action on contract. The motive for such extension was to simplify and shorten pleadings and other proceedings. Hale v. Chamberlain, 13 Gratt. 658. Nature. A motion for a judgment for money under the statute, where the notice takes the place of the writ and the declaration, is, nevertheless, an action at law. Gordon v. Funkhouser, 100 Va. 675, 42 S. E. 677. A motion for a judgment for money under Code, § 3211, where the notice takes the place of the writ and declaration, is an action at law, and the notice need not state that the defendant resides in the county in which the motion is made. Reed v. Gold, 102 Va. 37, 45 S. E. 868. Object.-The object of the proceeding by motion under § 3211 was to give suitors a plain and summary proceeding for the recovery of judgment. Preston v. Salem Imp. Co., 91 Va. 583, 22 S. E. 486. The object of § 3211 of the Code was to afford a more speedy remedy for the enforcement of contracts. Preston v. Salem Imp. Co., 91 Va. 583, 22 S. E. 486. The motive for the extension of the summary remedy by motion to the recovery of money due on contract was to simplify and shorten pleadings and other proceedings. Hale v. Chamberlain, 13 Gratt. 658. B. NATURE OF THE PLEADINGS. In motions for the recovery of money, a much greater latitude in A. ORIGIN, NATURE, AND OB- pleading is permissible than in comJECT OF THE MOTION. mon-law actions. Briggs v. Cook, 99 Origin. Prior to the Code of 1849, Va. 273, 38 S. E. 148; Liskey v. Paul, 100 Va. 764, 42 S. E. 875; Board of Supervisors v. Dunn, 27 Gratt. 608; Preston v. Salem Imp. Co., 91 Va. 583, 22 S. E. 486; Hall v. Ratcliff, 93 Va. 327, 24 S. E. 1011. The pleadings on a motion for a judgment for money, after notice, are intended to be of an informal nature, except where statute requires otherwise (as under § 3299 of the Code). Liskey v. Paul, 100 Va. 764, 42 S. E. 875. The object of § 211 of the Code was to afford a more speedy remedy for the enforcement of contracts, but it was not contemplated that all the rules of pleading were to be abrogated thereby. Preston v. Salem Imp. Co., 91 Va. 583, 22 S. E. 486. C. REMEDY RESTRICTED TO RECOVERY OF MONEY ON CONTRACT. Circuit courts have no jurisdiction of motions to recover forfeits specified in § 1292 of the Code, as § 3211 authorizes the remedy by motion only in cases where the plaintiff is entitled to recover money on action on a contract, and the proceeding to recover such forfeit is founded, not upon a contract, but upon a tort; i. e., a wrongful violation of a public duty. Western Union Tel. Co. v. Bright, 90 Va. 778, 20 S. E. 146. It is true that an action of debt lies for a statutory penalty, but this is because the sum demanded is certain, and not because the cause of action arises ex contractu. Western Union Tel. Co. v. Bright, 90 Va. 778, 20 S. E. 146. Nature of Contract.-"The only restriction imposed by the statute as to the nature of the contract upon which the recovery may be by motion is the right to recover money upon it by action. If the contract is such that the person making the motion is entitled action on contract." Long v. Pence, 93 Va. 584, 25 S. E. 593. Insurance Policies. Thus, a motion may be made under § 3211 of the Code to recover money from an insurance company on a policy of insurance. Union Cent. Life Ins. Co. v. Pollard, 94 Va. 146, 26 S. E. 421; Morotock Ins. Co. v. Pankey, 91 Va. 259, 21 S. E. 487; Grubbs v. National Life, etc., Ins. Co., 94 Va. 589, 27 S. E. 464. And see the titles FIRE INSURANCE, vol. 6, p. 109; LIFE INSURANCE, vol. 9, p. 359. Proceedings to Settle Disputed Election.-But proceedings to settle a disputed election can not be regarded as a "motion" within the purview of the statute regulating costs between parties in proceedings to recover money on motion. West V. Ferguson, 16 Gratt. 270. Sounding in Damages. Nor can damages for an injury resulting from a breach of contract, recoverable only in an action "sounding in damages," in any sense be considered money due upon. contract, and hence a motion under § 3211 of the Code, 1887, as it stood when this motion was made, permitting a motion to be made in any case when a person was "entitled to recover money by action on any contract" can not be maintained to recover damages for a breach of contract, or the profits which the plaintiff would have made if he had been permitted to fulfill his contract. Wilson v. Dawson, 96 Va. 687, 32 S. E. 461. D. AGAINST WHOM MOTION MAY BE MAINTAINED. Remote Assignor.-Under the provision of § 2861 of the Code an action may be maintained by an assignee of a chose in action against a remote assignor thereof to recover money upon the contract implied by the assignment that he will repay the consideration received by him for the chose; if by the use of due diligence it can not be made out of the obligor or maker. Hence, party upon whom it is served to a fixed and certain day, when he can appear and make his defense. The statute declares when the terms of court shall commence, and a litigant has a right to assume that the law will be complied with, and should not suffer loss from acting on that assumption.” T、nch v. Gray, 102 Va. 215, 46 S. E. 287. Length of Notice-How Time Calculated. A motion for a judgment for made after fifteen days' notice in writmoney under Code, § 3211, can only be Under § 3211, Code, 1887, as amended by act of assembly, acts, 1895-96, p. 140, which provides that any person entitled to recover money by action on any contract may, on motion before any court which would have jurisdiction in an action, obtain judging, and where the notice is to the first ment for such money after fifteen days' notice, which notice shall be returned to the clerk's office, etc., a proceeding by motion under this section can not be regarded as instituted until after service of notice, and its return or filing in the clerk's office; and therefore, where an attachment was issued under § 2959, before return of notice, the attachment proceeding is void, as the court is without jurisdiction. Furst 7. Banks, 101 Va. 208, 43 S. E. 728. 2. Functions of Notice. "This court has held that, on motion for judgment for money, under § 3211 of the Code, the notice takes the place of both the writ and the declaration.". Tench v. Gray, 102 Va. 215, 46 S. E. 287, citing Morotock Ins. Co. v. Pankey, 91 Va. 259, 21 S. E. 487; Grubbs . National Life, etc., .Ins. Co., 94 Va. 389, 27 S. E. 464; Gordon v. Funkhouser, 100 Va. 675, 42 S. E. 677; Reed v. Gold, 102 Va. 37, 45 S. E. 868. 3. Requisites of Notice. What Notice Must State. Although motions for judgment for money under § 3211 are viewed with great liberality, the notice must state in clear and unmistakable terms the names of the parties, the amount for which judgment will be asked, and the time and place at which the motion will be made. Tench v. Gray, 102 Va. 215, 46 S. E. 287. "As the notice is in lieu of the writ, it must, like the writ, summon the day of the next term of a court, the time is to be calculated to the day appointed by law for the court to sit, and not to the day on which the court actually opens. Tench v. Gray, 102 Va. 215, 46 S. E. 287. To What Day of Term.-A notice of a motion for a judgment for money. under § 3211 of the Code, need not be the court, but may be given to any day given to the first day of the term of of the term, provided only the notice is served at least fifteen days before the day on which judgment is to be asked, and is filed in the clerk's office ten days before the term begins. Hanks v. Lyons, 92 Va. 30, 22 S. E. 813. "It is to be observed that the statute authorizes the court to render judgment on motion after fifteen days' notice, which notice shall be returned to the clerk's office of the court ten days before the commencement of the term. The statute does not specify that the notice must be served fifteen days before the commencement of the term, nor that it must be given to the first day of the term." Hanks v. Lyons, 92 Va. 30, 22 S. E. 813. Maturing before Term.—The law giving a right to recover money on contract by motion is general; applicable to all the circuit courts and the quarterly terms of the county and corporation courts. The circuit courts are held semi-annually, and where the proceed ing is by action, it must be matured for a place on the docket before the term; and it is apparent the legislature did not contemplate that when the proceeding was by notice, it could be commenced and matured during the term. Hale v. Chamberlain, 13 Gratt. 658. "The case of Hale v. Chamberlain, 13 Gratt. 658, which was relied on by counsel for defendants in error, does not sustain his contention. In that case the court held, that the notice could not be matured during the term, but that it must be in a condition to be docketed before the term to authorize the court to give judgment at that term.' 13 Gratt. 663. It is plain from the reasoning of Judge Allen, who delivered the opinion of the court, that it did not mean that the notice 'must be so matured * * for the docket before the term' by being served and returned within the time prescribed." Hanks v. Lyons, 92 Va. 30, 22 S. E. 813. 4. Return of Notice. Under Present Statute.-Notice of a motion for a judgment under § 3211 of the Code must be returned to the clerk's office within five days after the service. In computing the time the day of service is to be counted, as prescribed by Code, § 8, but not the day on which the notice is returned, hence a notice served February 21st and returned February 26th is not within the time prescribed, and a judgment by default rendered thereon is invalid. The provision of the statute is mandatory. Swift v. Wood, 103 Va. 494, 49 S. E. 643. Under Former Statute. In a proceeding under the Code, ch. 167, § 5, p. 640, to recover money due upon contract, by notice, the notice must be returned forty days before the commencement of the term, and put upon the docket of the court, or it can not be tried at that term. Hale v. Chamberlain, 13 Gratt. 658. 5. Demurrer to Notice. On a motion for judgment for money under § 3211 of the Code, the notice takes the place of both the writ and the declaration, and a demurrer to the notice only raises the question whether there is matter in the notice sufficient to maintain the action. Morotock Ins. Co. v. Pankey, 91 Va. 259, 21 S. E. 487. F. JURY TRIAL. In a proceeding by motion to recover money under § 3211 of the Code, in order to entitle the defendant to a trial by jury, as provided by § 3213 of the Code, an issue must be made up. This issue may be tendered by a plea, or by an informal statement in writing of the grounds of defense. A mere oral statement is not sufficient; and in cases be verified by affidavit, that requirewhere the statute requires the plea to ment of the statute must be complied with. Preston v. Salem Imp. Co., 91 Va. 583, 22 S. E. 486. G. DEFENSES. Under the West Virginia Statute (Code, ch. 121, § 7), defense to a motion for a judgment for money may be made in the same manner and to the same extent as in actions at law. State v. Keadle, 44 W. Va. 594, 29 S. E. 976. "Barton, in his Law Practice (vol. 2, p. 1047), under the head of Trial of Motion,' says: 'If there be no defense to the motion, it is treated just as a suit to which there is no plea, and a judgment thereon may be rendered by default; or else, if there be not enough in the papers to justify a judgment, a writ in inquiry will be first ordered and executed either by the court jury.' State v. Keadle, 44 W. Va. 594, 29 S. E. 976. or a "The statute of Virginia prescribes no mode of pleading by which the defense to a motion may be presented to the court; but it is a commendable practice which prevails in some of the circuits to require the defendant, either when he enters his appearance, or at some reasonable time thereafter, to put 10 Va-9 in writing, in sufficiently explicit terms, the grounds upon which he rests his defense to a motion for a judgment for money.' Barton's Law Practice, vol. 2, p. 1047." State v. Keadle, 44 W. Va. 594, 29 S. E. 976. H. RECOVERY OF COSTS. 1849, declares that, "except where it is otherwise provided, the party for whom final judgment is given in any action, or in a motion for judgment for money, whether he be plaintiff or defendant, shall recover his costs against the opposite party." West v. Ferguson, 16 The eighth section of ch. 185, Code, Gratt. 270, 272. Motive. See the titles ASSAULT AND BATTERY, vol. 1, p. 733; EVIDENCE, vol. 5, p. 316; EXEMPLARY DAMAGES, vol. 5, p. 754; HOMICIDE, vol. 7, p. 140. Mulattoes. See the title MISCEGENATION, vol. 9, p. 854. Mules. See the titles CRUELTY TO ANIMALS, vol. 4, p. 145; JUDICIAL NOTICE, vol. 8, p. 631. MULTIFARIOUSNESS. I. Definitions and Nature, 131. A. In General, 131. B. Rules for Determining Multifariousness, 132. C. Cases Illustrating the Application of the Rules, 133. 1. Bills Held Not to Be Multifarious, 133. 2. Bills Held to Be Multifarious, 139. II. In What Pleadings It May Exist, 142. III. As Determined by Prayer for Relief, 143. A. In General, 143. B. Alternative Prayer, 143. C. Inconsistent Relief Asked, 143. IV. Objections for Multifariousness, 144. A. How Raised, 144. B. Time of Raising, 144. C. By Whom Raised, 144. E. How Cured, 144. 1. In General, 144. 2. Amendment, 145. V. Dismissal, 145. CROSS REFERENCES. See the titles ACTIONS, vol. 1, p. 141; CREDITORS' SUITS, vol. 3, p. 805; DEMURRERS, vol. 4, p. 486; EQUITY, vol. 5, p. 125; DISMISSAL, DISCONTINUANCE AND NONSUIT, vol. 4, p. 695; FRAUDULENT AND VOLUNTARY CONVEYANCES, vol. 6, p. 657; GUARDIAN AND WARD, vol. 6, p. 834; MECHANICS' LIENS, vol. 9, p. 753; MULTIPLICITY OF SUITS; STOCK AND STOCKHOLDERS; VENDOR AND PURCHASER. |