Opinion
03-09-1876
WARREN v. SAUNDERS.
Jones & Bouldin, for the appellant. Cannon & Courtney, for the appellee.
1. W sues S in assumpsit in the county of J, and sends the process to the city of R, where S resides, and it is served upon S by the sheriff of R. S files a plea in abatement stating these facts, but does not say where the cause of action arose. HELD: The plea is sufficient in this case, though it does not give the plaintiff a better writ.
2. W having demurred to the plea, and the court having sustained the demurrer, when the cause is called for trial S moves to dismiss the cause from the docket. HELD: The motion should have been sustained and the suit dismissed; the statute expressly providing that when the suit is brought where the cause of action arose, process shall not be directed to an officer of any other county or corporation than that wherein the action is brought.
This is a supersedeas to a judgment of the late district court of appeals for the third judicial circuit, reversing a judgment of the circuit court for the city of Williamsburg and county of James City, rendered in a certain matter of controversy therein depending, wherein the plaintiff in error, James R. Warren, was plaintiff, and the defendant in error, Edmund A. Saunders, was defendant. The following is a statement of the case.
On the 16th day of February 1869, a summons was issued by the clerk of the said circuit court, directed to the sheriff of the city of Richmond, commanding him to summon the said Saunders to appear at the clerk's office of the said circuit court at the rules to be holden for the said court on the first Monday in March 1869, to answer the said Warren of a plea of trespass on the case, assumpsit, & c. This summons was executed by a deputy of the sheriff of the city of Richmond, and was returned with a return thereon endorsed and signed by the said deputy, stating that it was " executed, March 1st 1869, on E. A. Saunders, by delivering to him a copy of the within."
At March rules 1869 the plaintiff filed his declaration in the case, which contained two counts, one a special count for a lot of wood, estimated to contain two hundred and seventy cords, lying at " Perry's landing" on the Chickahominy river, and bargained and sold by the plaintiff to the defendant on the terms in the said special count mentioned; and the other a general count for one hundred and ten cords of pine wood, sold and delivered by the plaintiff to the defendant.
Whereupon the defendant appeared and filed his plea in abatement, to which the plaintiff demurred, and the defendant joined in demurrer.
By the said plea the defendant appeared in proper person and craved oyer of the writ, which was read to him, and, with the return endorsed thereon, inserted in the plea. The defendant then in his said plea " prays judgment of the writ aforesaid, and says that this court ought not to have or take further cognizance of said action, because he says that it appears by said writ that he the said defendant is not sued with any person residing in the city of Williamsburg or the county of James city, and that the said writ is issued against the said defendant alone, and that the said writ is directed to the sheriff of the city of Richmond, and that the endorsement on said writ shows that the said writ was served upon said defendant by the sheriff of the city of Richmond by deputy. And the said defendant in fact says, that at the time of the issuing of said writ, and at the time of the service thereof upon him, he was, and ever since has been, and is now a resident of the city of Richmond, and that the said writ was served upon him in the city of Richmond, and that he is not sued with any person residing in the city of Williamsburg or the county of James City; and this the said Saunders is ready to verify: wherefore he prays judgment of the said writ, and that the same may be quashed," & c.
There is an affidavit of the truth of the plea annexed thereto, which bears date on the 1st day of March 1869, the very day on which the summons was executed on the defendant.
At May term 1869 of the said circuit court the said demurrer was argued and sustained, and the defendant was ordered to answer further to the declaration; and the cause was continued until the next term.
At which term, to wit: on the 27th day of November 1869 the defendant moved the court to dismiss the cause from the docket; which motion was overruled, and the defendant excepted. He then plead non assumpsit, on which issue was joined, and there was a trial by jury and a verdict for the plaintiff, whose damages were assessed at $500: whereupon the defendant moved the court to set aside the verdict and grant a new trial, on the ground that the verdict was contrary to the law and the evidence; but the court overruled the motion, and rendered judgment according to the verdict.
During the progress of the trial, at the instance of the defendant three bills of exceptions were signed and sealed by the court and made a part of the record. No. 1 was to the action of the court, in overruling his motion to dismiss the case; No. 2 was to the action of the court in overruling a motion for a continuance; and No. 3 was to the action of the court in overruling his motion for a new trial; in which last bill the facts proved on the trial were certified. But it will be unnecessary here to notice further any of these bills except No. 1.
That bill states, that at the calling of the cause, at the November term of the court the defendant moved the court to inspect the writ, which was accordingly done by the court, and to dismiss the case from the docket, upon the ground that it appears by said writ that the defendant is the sole defendant in this action, and is a resident of the city of Richmond, and was at the time of the suing out said writ, and the said writ was issued by the clerk of the circuit court for the city of Williamsburg and the county of James City, and directed to the sheriff of the city of Richmond, and was served upon the defendant in the city of Richmond by the deputy sheriff of said city; which motion the court overruled, and refused to dismiss the case from the docket; and the defendant excepted.
To the said judgment of the circuit court the defendant applied to a judge of the said district court for a supersedeas, which was accordingly awarded; the errors in said judgment as assigned in the petition for a supersedeas being, 1st, in sustaining the demurrer to the plea in abatement, and in refusing to quash the writ, and in compelling the defendant to answer further; 2d, in overruling the defendant's motion to dismiss the case from the docket; and 3d, in overruling the defendant's motion for a new trial.
On the 4th day of January 1870 the case came on to be heard in the said district court upon the supersedeas, when it seemed to the court that there was error in the judgment of the circuit court in this, that the defendant's plea in abatement to the writ was good and sufficient in law, and that the court below erred in sustaining the plaintiff's demurrer to the said plea in abatement. Therefore the judgment of the circuit court was reversed, the said demurrer was overruled, the said plea was adjudged to be good and sufficient in law; and the cause was remanded to the circuit court, with instructions to direct that the plaintiff join issue in fact on said plea; and the defendant recovered his costs in the district court.
To the said judgment of the district court the plaintiff applied to a judge of this court for a supersedeas; which was accordingly awarded.
Jones & Bouldin, for the appellant.
Cannon & Courtney, for the appellee.
OPINION
MONCURE, P.
After stating the case he proceeded:
There can be no doubt but that the summons by which the action was commenced in this case was illegal and void, and ought to have been quashed, if the facts appeared and the question was properly presented to the circuit court. The action was brought in the circuit court of the city of Williamsburg and county of James City, and was commenced by the issuing of a summons which bore date on the 16th day of February 1869, before the declaration was filed. There was but one defendant in the action, Edmund A. Saunders, who resided in the city of Richmond. The supposed cause of action, it seems, arose in the county of James City. The summons was directed to the sheriff of the city of Richmond, to whom it was sent, and by whose deputy it was executed and returned, with an endorsement thereon showing the time and manner of its execution. It was without any authority of law that this summons was directed to the sheriff of the city of Richmond.
The Code, chapter 165, section 1, provides, that " any action at law or suit in equity, except where it is otherwise specially provided, may be brought in any county or corporation: First, wherein any of the defendants may reside." Neither the exception referred to in the said first section, nor the subsequent enumerations appended thereto, apply to this case. Section 2 provides, that " an action may be brought in any county or corporation wherein the cause of action or any part thereof arose, although none of the defendants reside therein." Chapter 166, section 2, provides, that " process from any court, whether original, mesne, or final, may be directed to the sheriff of any county or sergeant of any corporation, except that process against a defendant (unless a railroad, canal, turnpike, or telegraph company be defendant), to answer to any action brought under the second section of chapter 165, shall not be directed to an officer of any other county or corporation than that wherein the action is brought."
Now these are all the provisions of law which apply to this question. This action might have been brought, under section 1 of chapter 165, in the city of Richmond, where the only defendant in the action resided, or, under section 2 of the same chapter, in the city of Williamsburg and county of James City, wherein the cause of action arose. It was brought in the latter, wherein the cause of action arose. In that case, however, as we have seen, chapter 166, section 2, expressly required that the process should not be directed to an officer of any other county or corporation than that wherein the action was brought. And yet, in plain violation of that law, the summons in this case was issued and directed to the sheriff of the city of Richmond. It was palpably void for illegality; and the only question is, whether the defendant used the proper means to avail himself of such illegality.
He was certainly very prompt in making his defence. On the very day on which the summons was executed upon him, to-wit, the 1st day of March 1869, he made affidavit to a plea in abatement setting out the facts and grounds of his defence, which plea he filed immediately on the filing of the plaintiff's declaration in the case, which was at March rules 1869. The plea was, therefore, filed in due time. Was it sufficient in form and substance? It stated that the defendant appeared " in his own proper person," and craved oyer of the writ, which was read to him, and was set out in haec verba in the plea. It then proceeded: " which being read and heard, he," & c., as already set out in the statement of the case.
The details of this plea are very minute, and seem to embrace all the facts necessary to be stated in such a plea under the circumstances. The only objection made to it by the plaintiff is, that it does not aver where the cause of action arose, and therefore does not do what it is contended such a plea must always do, that is, give to the plaintiff a better writ. It does give to the plaintiff a better writ, by showing that the action might have been brought in the city of Richmond. But it is said the action might also have been brought in any county or corporation wherein the cause of action or any part thereof arose, although none of the defendants reside therein, and therefore the plea should show in what county or corporation the cause of action in this case arose. The answer to this is, that the plaintiff knew where the cause of action arose, and his declaration shows that it arose in the county of James City, wherein the action was actually brought. Surely it could not be necessary to aver that the court in which the action was brought had jurisdiction thereof. The objection was, not that the action was brought in a court not having jurisdiction of it, but that the summons was illegally issued and sent to another county or corporation than that in which the action was brought, and therefore the summons was illegal and void. The plea shows that the plaintiff sued the only defendant in the action in a county in which that defendant did not reside, and had the summons issued and sent for execution to the county or corporation in which he did reside. Now that was an unlawful act, which it was only necessary for the defendant to show in order to be entitled to have the writ quashed. The doctrine about giving the plaintiff a better writ does not apply to such a case. He brought his suit in James City, and instead of suing out his writ to the sheriff of that county, he sued it out to the sheriff of the city of Richmond, without any authority whatever for so doing. If he had, by mistake, brought his action in the wrong county, supposing that the defendant resided there, or that the cause of action arose there, and had sued out his summons to the sheriff of that county, it might have been reasonable and proper to require the defendant in his plea to the jurisdiction to give the plaintiff a better writ by showing not only where the defendant resided, but also where the cause of action arose--and such seems to be the effect of the two cases so much relied upon by the learned counsel who prepared the petition of the plaintiff to the district court for a supersedeas in this case. Those two cases are Middleton v. Pinnell, 2 Gratt. 202; and Raine v. Rice & c., 2 Pat. & Heath 529. In neither of those actions was any opinion delivered by the appellate court, but in each of them the judgment of the court below was simply affirmed. We cannot therefore know precisely the ground of the court's decision in either of them. The supposed ground is, that the plea to the jurisdiction was fatally defective in not showing where the cause of action arose. Admitting that to have been the true ground, as it may have been, and probably was, there was this material difference between those cases and this, that in each of them the writ was issued to the sheriff of the county in which the action was brought, which was certainly proper if the court had jurisdiction of the case, whereas, in this case, it was issued to the sheriff of a corporation in which the action was not brought, which was certainly not proper, whether the court in which the action was brought had jurisdiction of it or not.
But the rule that " pleas in abatement must give the plaintiff a better writ," is by no means a rule of universal extent and application. As to the nature of it, see what is said in 5 Rob. Prac., p. 104-5, and the cases there cited. In Massachusetts, Wilde, J., observed that the rule is of limited application, and is binding only in cases where misnomer is pleaded, or the defect relied on depends on some fact presumed to be within the peculiar knowledge of the defendant. Guild v. Richardson, 6 Pick. R. 369, 370. Dewey, J., says: " There are many cases where a plea in abatement need not furnish the plaintiff with a better writ; as a plea that no such person exists as the plaintiff, or plea of non-tenure, or plea of disclaimer and the like." Wilson v. Nevers, 20 Pick. R. 23. See 5 Rob. Prac., supra.
But without pursuing this subject any further, we are of opinion that the circuit court erred in sustaining the plaintiff's demurrer to the defendant's plea in abatement, and that the district court did not err in reversing the judgment of the circuit court on that ground.
We are also of opinion that the circuit court erred in overruling the motion of the defendant to dismiss the case from the docket, upon the grounds set out in bill of exceptions No. 1, the purport of which is already set forth in the preliminary statement of the case; the said grounds being also embraced in the plea in abatement aforesaid. We think there are cases of this kind, and that this is one of them, in which a plea in abatement is not necessary, but the court may ex officio, and a fortiori upon motion, abate the writ or the suit. See 1 Rob. Prac., old ed., p, 162, and cases there referred to, especially Garrard & c. v. Henry & c., 6 Rand. 112, 117; Mantz v. Hendley, 2 Hen. & Mun. 308. In 5 Rob. Prac. 95, it is said " the general rule is, that if the defendant would object to the plaintiff's writ he must do it by pleading in abatement. Cooke v. Gibbs, 3 Mass. 195. It is indeed sometimes said that if the writ be bad and insufficient on its face, the court may ex officio quash it. S. C. 196; Mantz v. Hendley, 2 Hen. & Mun. 308." It does not appear that the provision in the Code of 1849, ch. 171, § 18, referred to in 5 Rob. Prac. 101, was intended to prevent a court from quashing a writ in any case whatever without a plea in abatement. After providing in § 17 that " no plea in abatement for a misnomer shall be allowed in any action," § 18 provides that, " in other cases, a defendant, on whom the process summoning him to answer appears to have been served, shall not take advantage of any defect in the writ or return, or any variance in the writ from the declaration, unless the same be pleaded in abatement." This section does not seem to cover a case like this, in which the writ is not merely defective, but absolutely void, and in which therefore it may be quashed, not only on plea in abatement, but also on mere motion, or by the court ex officio. But in this case the question seems not to be material, as the objection was taken not only by motion, but also by plea in abatement.
The court is therefore of opinion that there is no error in the judgment of the district court, except that instead of remanding the cause to the said circuit court of the city of Williamsburg and county of James City, with instructions to direct that the said plaintiff join issue in fact on said plea, the said district court ought to have quashed the plaintiff's writ. But the said judgment may be amended in that respect, and as amended affirmed.
The judgment of the district court is therefore amended and affirmed accordingly, and it is considered that the defendant recover against the plaintiff his costs by him about his defence in this court expended.
JUDGMENT AMENDED AND AFFIRMED.