Summary
In Turnbull v. Thompson, 27 Gratt. 306, the defendant having been sued and judgment recovered against him whilst he was in the military service of the Confederate States, it was held by this court that the court in which the action was brought could not know, unless the matter is brought to its attention, that the defendant is in such service, or that he may not prefer to waive his exemption.
Summary of this case from Neale v. UtzOpinion
03-16-1876
TURNBULL, for & c., v. THOMPSON & als.
Jones & Bouldin, for the appellant. Barksdale, for the appellees.
Absent, Moncure P.
1. A summons in debt is served on a defendant on the 3rd of February, and the judgment by default becomes final on the 3rd of March. Under the statute the day of the service of the process may be counted, and therefore thirty days had elapsed between the service of process and the judgment, and it is a valid judgment.
2. In debt against four obligors, one of whom is the high sheriff, the process goes into the hand of his deputy, who serves it upon him as well as the other three, to which he makes no objection; and there is a judgment by default against all of them. The process is properly served and the judgment is valid.
3. There is a judgment in debt, by default, against four defendants in March 1862. In August 1872 one of the defendants moves the court to set it aside, on the ground that at the time of the judgment he was in the military service of the country. It appears, however, that at the time of the service of the process, and at the time the judgment became final he was at home on furlough. The exemption of the defendant was a personal privilege of which the court could not ex officio take notice; and the objection should have been taken during the pendency of the proceedings.
On the 25th of January 1862 Lewis H. Turnbull, who sued for Randolph Dickinson, sued out of the county court of Franklin county a summons in debt against Giles M. Thompson, William P. Thompson and two others, the said writ being made returnable on the first Monday of the next February. This writ went into the hands of J. J. Lavinder, deputy of Wm. P. Thompson, who was then the sheriff of Franklin county, and it was served upon said Thompson on the 3d day of February, it having been previously served upon the other parties. None of the defendants appeared and pleaded; and at the next term of the court, viz. on the 3d day of March, there was a judgment by default against them for the amount of the bond declared on.
In August 1872 Wm. P. Thompson gave notice to Dickinson, that he would move the county court of Franklin to reverse the aforesaid judgment, on the grounds:
1st. Because the process was served on him on the 3d of February 1862, and the judgment made final on the 3d of March 1862; it thus becoming final within one month after the service of the original process.
2d. Because the process was served upon him by his deputy.
3d. Because the judgment was rendered against him whilst he was in the military service of the state of Virginia.
Upon this last ground it was proved on the hearing of the motion, that at the time of the service of the summons and the rendition of the judgment, Thompson was in the service of the country in the army of the Confederate States; that he had volunteered in the service of Virginia in the month of May 1861, and was ordered and transferred into the confederate service in the late war; that at or about the time the summons was executed and the judgment rendered, he was temporarily at home on furlough.
The motion to reverse the judgment came on to be heard in September 1872; when it was overruled by the county court. Thompson thereupon excepted, and took the case to the circuit court of Franklin county; and the case came on in that court on the 19th of October 1872, when the judgment of the county court of September 1872 was reversed; and the judgment of March 1862 was reversed and annulled. Turnbull thereupon applied to this court for a supersedeas; which was awarded.
Jones & Bouldin, for the appellant.
Barksdale, for the appellees.
OPINION
STAPLES, J.
The judgment of the county court against the defendant, Thompson, is objected to by him on various grounds. They will be severally considered in the order in which they are presented in the record.
The first objection is, that the original process commencing the suit was served on the defendant the 3d February 1862, and the judgment became final on the 3d March 1862, in violation of the statute, which declares that no judgment by default on scire facias or summons shall be valid if it becomes final within one month after the service of such process. The month indicated by the statute is of course a calendar month, and if the 3d day of February, the day of the service of process is to be included in computing the time, then the judgment did not become final within a month after the service of process.
Without undertaking now to discuss the doctrines of the common law in respect to the days to be included or excluded in the computation of time under statutes, it is sufficient to say that every difficulty in regard to that question has been removed by the provisions of the 8th clause of section 16, chapter 16, page 115, Code of 1860.
That section declares, that " where a statute requires a notice to be given, or any other act to be done a certain time before any motion or proceeding, there must be that time, exclusive of the day, for such motion or proceeding; but the day on which such notice is given, or such act is done, may be counted as part of the time."
The second objection is, that the process was served on the defendant by his deputy, the defendant himself being then the sheriff of the county. This objection doubtless is founded upon the 20th section, chapter 49, Code of 1860, which declares that " when for any cause it is unfit for a sheriff or sergeant to serve any process, such process shall be directed to and served by a coroner of the county or corporation."
One of the objects of this statute was of course to prevent the execution of process by officers interested in the subject matter of the suit; and the plaintiff might well object that the defendant is not a proper person to execute the process. But if the plaintiff is willing that the process shall go into the hands of the defendant, and the defendant is willing to receive it and accept service, the latter cannot afterwards be heard to make any objection on the ground of irregularity. And so if the defendants' deputy receive the process and serve it upon the principal, and the latter does not make the objection in limine, he should not be permitted afterwards to say that his deputy had done an illegal act.
The third and main ground of objection is, that the judgment was taken against the defendant while he was in the military service. It appears that the defendant first enlisted as a volunteer in the service of the state as early as May 1861, and that he was subsequently transferred to the confederate army; but at the time the process was executed upon him, and at the time the judgment became final, he was at home on furlough. The objection now made was suggested for the first time on the 7th of August 1872, more than ten years after the judgment was rendered. Conceding that the objection was good if it had been made in time, the question is, whether it has not been waived by the failure of the defendant to insist upon it either before the judgment was entered, or within a reasonable period thereafter.
In Prentis v. Commonwealth, 5 Rand. 697, the defendant was presented for unlawful gaming, process served upon him, and a judgment by default entered. He applied for a writ of error coram vobis, upon the ground that he was exempt from arrest or process as a member of the general assembly; and by operation of law all proceedings against him stood suspended during the continuance of his privilege.
The general court after a very careful examination of the authorities bearing upon the question, was of opinion, that the exemption claimed was in the nature of a personal privilege; that from its character it was such that the courts could not ex officio take notice of it, and that it ought to be claimed whenever relied on.
The court was further of opinion, that the privilege was not an incapacity like infancy and coverture, where consent cannot give jurisdiction; and there was not an example of the allowance of the privilege, but upon plea, or motion tendered or made at the proper period, to the court where proceedings are sought to be abated or suspended; and therefore the failure of the defendant to claim the exception until after judgment, was a waiver of his privilege.
Much of this reasoning applies to persons in the military service. The exemption in their favor is necessarily a mere personal privilege. The court cannot ex officio take notice of it. It cannot know unless the matter is brought to its attention, that the defendant is in such service, or that he may not prefer to waive his exemption. The rule applying in other cases of personal privilege must therefore apply to him. The objection must be taken during the pending of the proceedings, otherwise it will be considered as waived. If the defendant is in actual service, if he is so situated that he cannot assert his privilege, the rule would not apply. Under such circumstances it would be unreasonable and unjust to require the objection to be made while the disability exists. But when the disability is removed, certainly within a reasonable time thereafter the defendant ought to claim his privilege.
In the case before us the defendant was at home on furlough, both when the summons was received by him, and when the judgment became final. It would have been very easy for him to claim his exemption. It was not necessary he should attend the court, or even employ counsel to do so. His own deputy served the process upon him: a simple notification to him, or an endorsement on the writ at the time, would no doubt have affected the object. A letter to the clerk, or to the court, at any time before the judgment became final, would have been sufficient. The defendant knew that the other obligors were joined in the suit with him. It may have been a matter of vital importance to the plaintiff to obtain judgment against them. In doing so, he was bound to include the defendant also in the suit. If the defendant had claimed his exemption, the action would have proceeded against the others, as it does not appear they were sureties; and judgment would have been recovered against them. Thirty days after the expiration of his term of service the defendant's exemption would have ceased, and then judgment might have been obtained against him also. The reversal of the judgment now as to the defendant carries with it the reversal of the judgment as to all the defendants: and so the circuit judge has held. The result, therefore, is, that the defendant, by failing to insist upon his privilege, obtains an exemption, not only for himself, but for his co-obligors, for more than seven years after his term of service has expired. It is unnecessary to consider the effect of the several statutes of limitation in respect to a motion to reverse a judgment upon the ground relied on in this case. The failure of the defendant under the circumstances to claim his exemption, or to make any objection whatever before the judgment was rendered, followed by the long delay that has since occurred, must be considered as conclusive evidence of his intention to waive his exemption.
For these reasons the judgment of the circuit court must be reversed, with costs; and that of the county court affirmed.
JUDGMENT REVERSED.