#### The Womeldorff & Thomas Company *v.*Mai L. Moore

(No. 7118)

Submitted February 16, 1932.

Decided February 23, 1932.

*George 8. Wallace,*for plaintiff in error.

*Somerville & Somerville,*for defendant in error.

Lite, Judge:

This action, in assumpsit, was instituted at July Rules, 1926, by the Womeldorff & Thomas Company, a corporation, to recover judgment on a store account against Mai L. Moore.

After numerous continuances, the trial of the case was set for January 10, 1928, at which time it was postponed at the instance of defendant for two days. January 12, 1928, a default judgment for $1112.37 was rendered against defendant in favor of plaintiff. Later, at the same term, defendant moved the court to set aside the judgment, but the hearing thereon was continued to the next term. At the following *592term, the motion was dismissed, without a hearing, upon the theory that it could not be considered after the term at which it was made. That ruling was reversed and the case remanded upon writ of error to this Court. *Womeldorff & Thomas Company*v. *Moore,*108 W. Va. 721, 152 S. E. 783. Thereafter, at the September, 1930, and January, 1931, terms of the circuit court, evidence was presented by both parties, under the motion, upon the issues as to whether plaintiff was physically able to attend the trial January 12, 1928, and whether she had a meritorious defense to the action.

According to her testimony, she became ill at her home, nine miles from Point Pleasant, about four a. m., January 10, 1928, and on that day sent a messenger to Point Pleasant, the county seat of Mason county, for a doctor to attend her, and to inform her attorney, F. G. Musgrave, that she was physically unable to appear in court; being unable to secure a doctor at Point Pleasant, she went to Huntington by train the following morning to consult Dr. TI. A. Brandebury, who had previously treated her; having been advised on her way by a friend that Dr. Brandebury had moved his office to another location in the city, on arriving at Huntington, at the suggestion of the friend, she went, by a taxi, to the office of Dr. Hawes in the city for temporary relief, and, later in the day, to the office of Dr. Brandebury, and remained in Huntington several days for treatment by him. In his sworn written statement, filed on behalf of defendant, Dr. Brandebury says he treated her for renal or kidney colic on January 11, 1928, and on that day she passed three small stones from the bladder, in consequence of which she was unable to do anything requiring her to be on her feet. Dr. Hawes, in a communication by letter to the judge of the circuit court on or about the 12th of January, 1928, stated that he had refused to make a certificate of illness, at the request of defendant, excusing her attendance at court, upon the theory that the physical strength required of her in going from her home to Huntington for medical treatment would have enabled her to attend court. Defendant’s explanation (undenied) of Dr. Hawes ’ position is that he did not examine her, and did noth*593ing to relieve ber pain while sbe remained in bis office except to apply ice packs to ber bead.

Tbe items of credit set up in her defense consisted of tbe following: two paid checks signed by ber and payable to plaintiff, amounting to $60.50; claim of $300.00 for defects and deficiencies in tbe performance by plaintiff of a plumbing contract between it and defendant; and a duebill for $881.17 from plaintiff to ber, executed by G. E. Womeldorff, manager and owner of tbe company. After a trial by tbe court upon tbe merits of tbe several items of defense, involving an accumulation of evidence constituting a record of 172 printed pages, tbe motion was overruled.

Chapter 125, section 47, Code 1923, provided: “If a defendant against whom a judgment is entered in tbe office, whether an order for an inquiry of damages has been made therein or not, shall, before tbe end of tbe term at which it becomes final, appear and plead to issue, and shall, in tbe cases mentioned in the next preceding section in which an affidavit is required, file such affidavit with bis plea, tbe judgment shall be set aside, but if tbe judgment has been entered up in court or tbe order for an inquiry of damages has been executed, it shall not be set aside without good cause be shown therefor. Any such issue may be tried at tbe same term, unless tbe defendant show by affidavit, filed with tbe papers, good cause for a continuance. But tbe plaintiff shall have tbe right to cross-examine tbe defendant upon tbe matters contained in such affidavit.” Tbe cases under this statute have generally turned upon a consideration of tbe excuse offered for the absence of defendant; but whether in such case tbe defendant is required also to present a *prima facie*defense, tbe court certainly should not, by invading tbe province of tbe jury, try the merits of tbe defense upon tbe motion.

Being of opinion that the defendant has shown ber physical inability to attend tbe trial, and that sbe has presented a *prima facie*defense to tbe action, tbe judgment, complained of, is reversed and a new trial awarded.

*Reversed and remanded.*