“Where the law commits a determination to a trial judge and his discretion is exercised with judicial balance, the decision should not be overruled unless the reviewing court is actuated, not by a desire to reach a different result, but by a firm conviction that an abuse of discretion has been committed.”
How later courts described this case
- “Where the law commits a determination to a trial judge and his discretion is exercised with judicial balance, the decision should not be overruled unless the reviewing court is actuated, not by a desire to reach a different result, but by a firm conviction that an abuse of discretion has been committed.”
- overruled on other grounds by Cales v. Wills , 212 W. Va. 232 , 569 S.E.2d 479 (2002)
- “A motion to vacate a default judgment is addressed to the sound discretion of the court and the court’s ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion.”
- “A default judgment obtained in accordance with the provisions of Rule 55(b), West Virginia Rules of Civil Procedure, is a valid and enforceable judgment .... ”
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by Cales v. Wills, 212 W. Va. 232 (2002)
154 W. Va. 369 , 175 S.E.2d 452 (1970), overruled on other grounds by Cales v. Wills, 212 W. Va. 232 , 569 S.E.2d 479
The opinion
*378 Berry, Judge,
concurring:
I concur in the decision of this case but I am of the opinion that under the provisions of Rule 12(a), R.C.P., it is mandatory that a defendant serve his answer within twenty days after the service of summons upon him unless before the expiration of the twenty days he files with the Court and serves upon the plaintiff a notice that he has a bona fide defense, and then, and only then, unless the provisions, of Rule 6(b) are complied with, is he allowed to serve the answer in an extended time within thirty days after he was served with the summons. There is no exception to the provisions of the above Rule in the instant case and none of the provisions of Rule 60, R.C.P., is applicable under the facts in the case at bar.
The Rules of Civil Procedure adopted and in force in this State were made to be adhered to, and I am of the opinion that attorneys cannot alter or change by agreement the mandatory provisions of the Rules or make new Rules in conflict therewith. The agreement attempted to be made by the attorneys in this case to extend the time in which to serve the answer without complying with Rule 6(b), R.C.P., was an attempt to circumvent the Rules and is not sanctioned by the provisions thereof.