CHARLESTON.

#### Dave Rollins *et al. v.*North River Insurance Company

(No. 6526)

Submitted September 18, 1929.

Decided September 24, 1929.

*603
      *Morton $ Snyder,*for plaintiff in error.

*Robert H. C. Kay,*for defendants in error.

Hatches, Judge:

Tbe plaintiff instituted an action on April 25, 1928, against defendant, a foreign corporation, in tbe court of common pleas of Kanawha County. Service of process was accepted by tbe state auditor. A trial was bad on June 27, 1928, and no appearance being made by defendant, tbe jury found for tbe plaintiff for $672.00, and tbe court entered judgment for that amount. On July 12, 1928, a later day of tbe same term, defendant appeared and moved tbe court to set aside tbe judgment, tbe main ground being that it did not receive a copy of tbe summons and bad no knowledge of tbe suit until after judgment was rendered. Filed in support of tbe motion are affidavits of (1) W. E. White, in charge of tbe insurance department in tbe auditor’s office, who says that tbe records show that a copy of tbe summons was sent defendant by registered mail, and that an acknowledgement of receipt was requested by bis office, but that none was received; and (2) H. J. Wyatt, vice-president of defendant, who says that be has charge of all correspondence from tbe auditor of West Virginia, and that the summons was never received by bis office; that defendant bad no knowledge of tbe suit until after judgment bad been rendered against it; and that it has a good defense.

Tbe court of common pleas refused to set aside its judgment, and tbe circuit court upheld that finding.

A judgment by default, such as tbe one here, may be set aside during tbe term at which it is rendered if “good cause be shown therefor”. Code, Chapter 125, section 47. To constitute a good cause, under tbe statute, it must be shown that tbe appearance of tbe defendant was prevented by “fraud, accident, mistake, surprise or some other adventitious circumstance beyond tbe control of tbe party and free from neglect on bis part.” *Post*v. *Carr,*42 W. Va. 72; *Gainer*v. *Smith,*101 W. Va. 314. Tbe affidavits of Wyatt and White are undisputed so far as they relate to tbe summons, and no reason appears for doubting them. It is common knowledge *604that the practice of tbe postal representatives, upon request, is to return to the sender an acknowledgment of the delivery of a registered letter. White says that a receipt was requested for the registered summons herein, but that none was ever received. His statement, in connection with that of Wyatt, sufficiently establishes defendant’s claim that it did not receive the summons. The loss of the summons in the mail was a circumstance entirely beyond the control of th,e defendant and was occasioned by no neglect on its part. That circumstance was adventitious in that it was unusual and unexpected. See Bouvier’s Law Dictionary and Wharton’s Law Lexicon. Suppose a person upon whom a summons has been served is immediately stricken with amnesia, which continues until after judgment is rendered against him. Would any court hesitate to vacate the judgment upon motion seasonably made? While the statute makes the acceptance of the summons herein by the auditor notice to the defendant, nevertheless the defendant was in reality as ignorant of the pen-dency of this suit as would have been one suffering from amnesia. Therefore, the circumstance presented by defendant is clearly within the judicial designation of good cause. No reason appears why the judgment should not be set aside under this showing. As was well said of a similar motion, “A trial of the motion in this ease is not apt to result in injustice to either party, whereas the refusal to re-open the ease might result in great injustice to the defendant.” *Jennings*v. *Wiles,*82 W. Va. 572, 579. It has been further declared to be as much the duty of the court to set aside a default judgment upon proof of good cause, as it was his duty in the first instance to enter the judgment. *Willson*v. *Ice,*78 W. Va. 672, 679.

The ruling of the lower court is, therefore, reversed and the judgment against the defendant is set aside. This conclusion renders unnecessary a discussion of other points of error.

*Reversed.*