Opinion
02-03-1815
Myrick, Administrator of Lundie, v. Adams. [+]
Hay for the appellants. Wickham for the appellees.
Argued January 30, 1815
In March 1795, Colin Adams and Edwin Adams, surviving residuary legatees of James Lundie, the elder, brought a suit in chancery in Southampton county court against James Lundie, junior, and Chislon Morris, executors of the said James Lundie, the elder. The object of the bill was to make the defendants account, at the rate of ninety for one, for 45176l. 14s. 0d., paper money, which they had received of sundry persons who bought the personal estate of the decedent, at a s ale thereof, in March, 1781, on a credit till December 25th, in the same year, but which paper money was funded by the executors, and produced a specie certificate of 45l. 3s. 6d., delivered by them to the plaintiffs.
The defendant, Chislon Morris, being returned no inhabitant, the suit was abated as to him. Yet an answer was filed, purporting to be the answer of both executors, but sworn to by James Lundie, junior, only; in which it was alleged that the sum of 9384l., part of the bonds taken at the sale in March, 1781, was received, by James Lundie, junior, a day or two after the 25th day of December, but the balance had been paid by the debtors before that day, and before the 24th of the same month, when the act of assembly, entitled, " an act directing the mode of adjusting and settling the payment of certain debts and contracts," (which took effect from its date,) was passed.
For monographic note on Process, see end of case.
Ch. Rev. p. 147.
The defendants insisted that the plaintiffs were indebted to them, according to a statement of accounts set forth in their answer; and that, " if the said act of assembly was passed on the 24th of December, 1781, the effect thereof, in equity, would not impair the payment or the receipt of money during the month of December, 1781, (including which, the scale of depreciation applied,) or unless the same had been promulgated, or until the ___ day of ___ following its passage."
The county court decreed that the complainants pay to the defendants the sum of 14l. 16s. 7d., with costs: --from which decree the complainants appealed to the late high court of chancery, where it was reversed, and, the cause being retained for farther proceedings, sundry depositions were taken and filed.
Chislon Morris being dead, and James Dupree and Tabitha his wife, executrix of said Morris, residing out of this commonwealth, an order of publication was made against them as absent defendants, and published two months in the Petersburg Intelligencer; as was proved by the affidavit of John Dickson, editor of that paper; --but it did not appear that a copy of the order was posted at the front door of the capitol according to law.
The cause was afterwards transferred to the superior court of chancery for the Williamsburg district, and, on the 10th of April, 1812, Chancellor Nelson, being of opinion " that the defendants ought not to avail themselves of a credit for 45176l. 14s. 0d., of paper money, paid by them into the treasury of Virginia, in the month of June, 1782, (and which the said James Lundie funded at the rate of one thousand for one,) because the said executors collected the said sum in paper money, after the period when paper money of every description ceased to be a legal tender, and that they ought to be subjected to pay the same, in specie, at the depreciation of ninety for one, that being the scale at the time the same was received by them," decreed therefore, that David Myrick (against whom, as administrator of James Lundie the younger, the suit, which abated by his death, had been revived,) out of the assets of the said James Lundie in his hands to be administered, and James Dupree and Tabitha his wife, executrix of Chislon Morris out of the assets of the said Chislon Morris in their hands to be administered, pay unto the plaintiffs the sum of 803l. 13s. 11d., with interest on 456l. 15s. 9d., part thereof, at the rate of five per centum per annum, from the 25th day of December, 1794, till payment; and that the defendants, out of the estates of their intestate and testator, if so much thereof they have to be administered, if not, out of their own estates, pay unto the plaintiffs their costs by them expended in the prosecution of this suit.
From this decree, an appeal was allowed and supersedeas awarded by a judge of the court of appeals, on the petition of David Myrick, administrator of James Lundie, junior.
Hay for the appellants.
Wickham for the appellees.
The president pronounced the following opinion of this court.
OPINION
The court is of opinion that the decree, compelling the appellees (in the Court of Chancery) to pay the amount of the money funded, at the rate of ninety for one, (according to the scale of depreciation applied to the time of the sale of the property in the bill mentioned,) deducting therefrom only the value of the certificate received by the appellants, in said court, (as if the whole amount thereof had been received by the appellant's intestate, after the 25th of December 1781, and in his own wrong,) is erroneous; it appearing that only 9,384l. of the said sum was so received: and that the said court also erred in rendering a joint decree against the representatives of both of the executors, when it appears by the record that the representatives of Chislon Morris were not before the court.
This court is further of opinion, that the decree of the County Court is erroneous, in not charging the appellant with the said 9,384l. at ninety for one, which sum was received by the intestate of the appellant, after paper money ceased to be the currency of the country, as before stated. Both decrees are therefore reversed, with costs: and this court proceeding to make such decree as ought to have been pronounced by the Superior Court of Chancery, it is decreed and ordered, that the appellant, out of the estate of his intestate, in his hands, pay to the appellees 94l. 17s. 8d. (being the amount of 9,384l. scaled at the rate of ninety for one, after deducting 9l. 7s. 8d. the value at which the same was funded, and which has been received by the appellees,) with interest thereon from the first day of January 1782, till paid; subject, however, to a credit of 14l. 16s. 7d. the amount of the decree of the county court; 9l. 9s. 7d. of which is to be credited as paid on the first day of January 1782; and 5l. 7s. 0d. the residue, as being paid on the 4th day of March 1787.
PROCESS.
I. Necessity for.
A. On Various Pleadings.
1. Petition Containing New Matter.
2. Petition by Lien Creditors in a Pending Suit.
3. Answer in Nature of a Cross Bill.
4. Petition to Rehear.
5. Bill of Review.
B. To Render a Personal Judgment.
1. Against Single Defendant.
2. Against Two or More Defendants.
3. Discontinuance of Case as to Defendants Not Served.
C. To Render Office Judgment.
1. Effect of Process Badly Executed.
2. Judgment Entered before Execution and Return.
3. Judgment Entered Too Soon after Service.
II. Issuance.
A. On Whose Order.
B. When Issued.
C. Effect of in Commencing Actions.
D. Effect of Exemptions on.
E. In Justice's Court.
III. Form and Contents.
A. Caption.
B. Date and Signing.
C. Names of Parties.
D. Statement of Cause of Action.
1. In General.
2. In Justice's Court.
3. Description of Premises in Unlawful Detainer.
E. What Process Sufficient.
1. In General.
2. To Answer a Presentment.
IV. Venue.
A. Common-Law Rule.
B. Changes by Statute.
C. How Directed and Served under the Statute.
D. Suits against Corporations.
V. Service.
A. By Whom.
1. By What Officers.
2. By Private Persons.
B. Time.
1. When Returnable to Rules.
2. When Returnable to Term.
3. On Legal Holiday.
C. On Corporations.
1. Place.
a. General Rule.
b. Special Rule in Justice's Court.
c. Special Rule Applied in Circuit Court.
d. Effect outside State.
2. On What Officers.
3. Personal Judgment against Foreign.
D. On Private Persons.
1. In General.
2. Actual and Constructive Distinguished.
3. Constructive.
a. In General.
b. How Made.
4. In Action of Ejectment.
E. Acceptance.
1. By Private Person.
2. By Corporation.
F. Effect in Commencing Action.
VI. Order of Publication.
A. In General.
B. Necessity for.
C. Issuance.
D. When to Be Made.
E. What It Must Contain.
F. When Proper.
1. As to Private Persons.
2. As to Corporations.
G. Effect of War on.
H. Substitute for by Personal Service.
I. What Judgments Cannot Be Rendered on.
1. Judgment in Personam.
2. Office Judgments.
K. Evidence of Order of Publication.
1. Necessity for.
2. Evidence Required to Prove Order Was Made.
a. Testimony of Editor.
b. Certificate of Printer.
c. Recital in Decree.
d. Of Posting.
VII. Return.
A. When Returnable.
1. General Rule.
2. In Unlawful Detainer.
3. In District Courts.
4. In County Courts.
5. Capias ad Respondendum.
6. On a Suggestion.
7. Order on Attachment.
B. Conclusiveness of the Return.
1. General Rule.
2. When Acts beyond Officer's Duty under Process.
3. When Acts beyond Officer's Duties of Office.
4. As to Strangers to Suit.
5. Of a Private Person.
6. On a Foreign Judgment.
C. Signing of Return.
D. What Return Must Contain.
1. When Service on Private Person.
2. When Service on Corporation.
VIII. Alias Summons.
A. In General.
B. By Statute.
IX. Objections How Made and Waived.
A. How Made.
1. In General.
2. Plea in Abatement.
3. Plea in Bar.
4. Motion to Quash.
5. Motion in Same Court.
6. Petition to Have Case Reheard.
7. Relief in Equity.
8. In Appellate Court.
9. When Right of Exemption Violated.
10. To Order of Publication.
11. Whether Writ Part of Record.
B. How Waived.
1. General Rule.
2. Waiver of Exemptions from Service.
3. Acceptance as a Waiver.
X. Evidence.
A. Presumption.
B. Conclusiveness.
1. Of Decree.
2. Of Record.
Cross References to Monographic Notes. Courts, appended to Cropper v. Com.Rob. 842. False Imprisonment, appended to Jones v. Com., 1 Rob. 748. Habeas Corpus, appended to Ex parte Pool, etc.Va. Cas. 276. Homicide, appended to Souther v. Com., 7 Gratt. 673. Judgments, appended to Smith v. Charlton, 7 Gratt. 425. Lis Pendens, appended to Stout v. Vause, 1 Rob. 169. Penitentiary, appended to Brooks v. Com.Rob. 845. Sheriffs and Constables, appended to Goode v. Galt, Gilm. 152.
I. NECESSITY FOR.
A. ON VARIOUS PLEADINGS.
1. Petition Containing New Matter. --Where a petition is filed by a stranger to a cause asking relief against a defendant therein on new matter contained in such petition, and the order asked by such petition is not one of course, process to answer it must be served on such defendant, unless waived by appearance or otherwise. Fowler v. Lewis's, 36 W.Va. 112, 14 S.E. 447; Dunfee v. Childs, 45 W.Va. 155, 30 S.E. 102.
2. Petition by Lien Creditors in a Pending Suit. --It is the practice, where a suit is pending to enforce judgment liens against a debtor's lands, to permit other lien creditors of such debtor to file petitions and where no new parties are brought into the suit by the petition, it is not the practice to serve process to answer the petition. See Jackson v. Hull, 21 W.Va. 601, citing Kendrick v. Whitney, 28 Gratt. 646; Marling v. Robrecht, 13 W.Va. 440; Dunfee v. Childs, 45 W.Va. 155, 30 S.E. 102.
3. Answer in Nature of a Cross Bill. --Where an answer in the nature of a cross bill is filed under § 35, ch. 125 of W.Va. Code, calling for affirmative relief not only against the plaintiff but also against other defendants, although process need not be served on the plaintiff, it must be served on the defendants against whom such relief is sought. Though such answer may be taken for confessed against the plaintiff, without service of process on him, it cannot be so taken as to the defendants not served. Goff v. Price, 42 W.Va. 384, 26 S.E. 287.
4. Petition to Rehear. --While leave will always be given any party to answer or deny the allegations of a petition to rehear an interlocutory decree, it is not usual to require service of process on it, for matters requiring such service should be presented by the regular pleadings; and where the parties have been served with process, or are before the court, there is no reason for a further process, and the practice in this respect is the same that prevails as to supplemental bills. Heermans v. MontagueVa. Dec. 6.
5. Bill of Review. --Process cannot be dispensed with on a bill of review but it must be regularly issued and served on all parties to the original suit. Heremans v. MontagueVa. Dec. 6.
B. TO RENDER A PERSONAL JUDGMENT.
1. Against Single Defendant. --Where a defendant has not been served with process and does not appear to the action either in person or by attorney a personal judgment rendered against him will be null and void. Morgan v. Morgan, 42 W.Va. 542, 26 S.E. 294; Gray v. Stuart, 33 Gratt. 351; Wilson v. Bank of Mt. Pleasant, 6 Leigh 570; Raub v. Otterback, 89 Va. 645, 16 S.E. 933.
For example where defendant appears not to have been included in the original process and the return thereon, the judgment entered in the suit is void, the presumption of jurisdiction being overcome by the record. Blanton v. Carroll, 86 Va. 539, 10 S.E. 329.
But although no process was served on a defendant he is not entitled to relief from a decree against him in the absence of proof that he did not have actual notice of the proceedings before the decree was rendered, and that he had a meritorious defense. Preston v. Kindrick, 94 Va. 760, 27 S.E. 588.
2. Against Two or More Defendants. --Upon the ground that a joint judgment against several defendants is an entirety, the West Virginia court holds that if it is void as to one or more defendants for want of service of process, it must be reversed as to all. Vandiver v. Roberts, 4 W.Va. 493; Lyman v. Thompson, 11 W.Va. 427.
For example where a decree is joint against two parties defendant, one of whom is not before court but is an absent defendant, and the other has appeared and answered, the appellate court on the objection of the defendant, who appeared, may reverse the decree on the ground that process had not been properly served on such absent defendant, or that the order of publication was not duly executed as to him, when none of such facts appeared by the decree or otherwise. Lyman v. Thompson, 11 W.Va. 427.
But it was held in one Virginia case that where one of several joint defendants is not served a judgment against all will not be reversed as to those who were properly served, the court saying that the rule of the common law, requiring a reversal as to all where the judgment was erroneous as to some of the defendants, was only applicable where the judgment was merely erroneous, and not where it was absolutely void as to them. Gray v. Stuart, 33 Gratt. 351.
3. Discontinuance of Case as to Defendants Not Served. --Where an action is brought against several defendants and process is served on part of them, a judgment may be entered against those who were served, and the case may be discontinued as to those not served. Moss v. Moss, 4 Hen. & M. 293; Merchants', etc., Bank v. Evans, 9 W.Va. 373; M'Call v. Turner, 1 Call 133; Brown v. Belches, 1 Wash. (VA) 9; McVeigh v. Bank, 26 Gratt. 785.
For example under the statute providing that " where, in an action against two or more defendants, the process is served on part of them, the plaintiff may proceed to judgment as to any so served; and either discontinue it as to the others, or, from time to time, as the process is served as to such others, proceed to judgment as to them, until judgment be obtained against all," the plaintiff has the right, after taking judgment against such of the defendants as may have been served with process, to proceed in the same action to have it matured against the rest, and, as the process is matured, to take judgments against them; or at his election to discontinue the action against the rest. In the latter case, the plaintiff may bring a new action against the defendants as to whom the original action may have been discontinued; who may in such new action make the same defense they might have made in the original action, whether served with process originally or afterwards. McVeigh v. Bank, 26 Gratt. 785.
C. TO RENDER OFFICE JUDGMENT.
1. Effect of Process Badly Executed. --The object of service of process is to bring the party into court. A judgment by default with process badly executed would not be legal. Mahany v. Kephart, 15 W.Va. 609.
For example, where a return shows that an alias summons was not duly executed, an office judgment cannot be entered against the defendant failing to appear, and, if it is entered, it will be set aside. Wynn v. Wyatt, 11 Leigh 584.
Again a judgment by default against a corporation, rendered on return of a summons which shows that it was executed on an officer of the company in a county other than that wherein the suit was brought, and which was not served ten days before the return day thereof, is a void judgment, and may be assailed collaterally by third parties. Staunton Perpetual B. & L. Co. v. Haden, 92 Va. 201, 23 S.E. 285.
And so a summons, issued by a justice of one county but directed to a constable of another county by whom it is served, is defective and a judgment by default rendered thereon would be set aside. Layne v. Ohio River R. Co., 35 W.Va. 438, 14 S.E. 123.
2. Judgment Entered before Execution and Return. --A judgment, entered in the clerk's office before the execution and return of the writ, is erroneous, and cannot be supported by the writ's being returned executed to the term when the judgment is made final. Crews v. GarlandMunf. 491.
3. Judgment Entered Too Soon after Service. --The entry of final judgment (it being a judgment by default) against the defendant, within one month after process was served, was erroneous under the statute providing that no judgment by default on a summons should be valid when rendered within one month after the service of such process. Dillard v. Thornton, 29 Gratt. 392.
How Time Counted.--And where a statute requires a certain number of days to elapse between the service of process and a judgment by default, the day of the service of process is to be counted, but the day on which the judgment becomes final must be excluded. Turnbull v. Thompson, 27 Gratt. 306.
II. ISSUANCE.
A. ON WHOSE ORDER. --Process to commence a suit or action is issued by the clerk on the order of the plaintiff or his attorney or agent, and not by order of the court. Abney v. Ohio Lumber & Mining Co., 45 W.Va. 446, 32 S.E. 256.
B. WHEN ISSUED.
In Term or Vacation.--Whether the court is in session or vacation, the clerk's office is open for the purpose of commencing suits or actions by issuing process therefor, including also process of attachment under chapter 106 of the Code. Abney v. Ohio Lumber & Mining Co., 45 W.Va. 446, 32 S.E. 256.
May Be on Return Day in West Virginia.--Process to commence a civil action returnable to the first Monday in a month as a rule day may be dated, and issued on such return day. Spragins v. West Virginia C. & P. Ry. Co., 35 W.Va. 139, 13 S.E. 45; Foley v. Ruley, 43 W.Va. 513, 27 S.E. 268.
Cannot Be on Return Day in Virginia.--But it is held in Virginia, under the statute providing that process shall be issued before the rule day to which it is made returnable, that process which is made returnable on the day of issuance is a void summons. Noell v. Noell, 93 Va. 433, 25 S.E. 242.
Effect of Wrong Date.--A motion to quash a writ, which is dated October 23d, 1863, and returnable on the " first Monday in July next," when the true date on which it was issued was between the 20th and 25th of June, 1863, should be sustained, as the confusion of dates was calculated to delude the defendant as to the day when he should appear and answer the same. Gorman v. Steed, 1 W.Va. 1.
C. EFFECT OF IN COMMENCING ACTIONS.
General Rule.--The suing out of the writ of summons is the commencement of the action. United States Blowpipe Co. v. Spencer, 46 W.Va. 590, 33 S.E. 342; Lambert v. Ensign Manuf'g Co., 42 W.Va. 813, 26 S.E. 431.
But the date of the writ is not conclusive, but is prima facie evidence of the commencement of the action. Lambert v. Ensign Manuf'g Co., 42 W.Va. 813, 26 S.E. 431.
Where There Is an Alias Writ.--Service of summons on defendant's agent having been made within ten days of return day, and suit having been remanded to rules to be properly matured, and an alias summons having been issued and duly served; commencement of suit was the issuance of the original summons for the purposes of the statute of limitations. Virginia Fire & Marine Insurance Co. v. Vaughan, 88 Va. 832, 14 S.E. 754.
But if such original summons was void, the order of the court, remanding it to rules in order that an alias summons might be issued, could give it no vitality, and the day it was issued could not be considered as the commencement of the suit. Noell v. Noell, 93 Va. 433, 25 S.E. 242.
D. EFFECT OF EXEMPTIONS ON. --The act, exempting legislators from the service of process during their attendance upon the general assembly does not forbid the issuance of process against them during that period, but only from the service or levy of such process upon their persons; and, where such process has been issued before the commencement of such privilege, it suspends but does not abate or discontinue further proceedings thereupon during the term of such exemption and privilege. McPherson v. Nesmith, 3 Gratt. 237.
E. IN JUSTICE'S COURT. --A justice cannot issue a summons to a defendant to appear before him at a place named, without his own district, and a judgment by default rendered on such summons would be void. Stanton-Belment Co. v. Case, 47 W.Va. 779, 35 S.E. 851.
III. FORM AND CONTENTS.
A. CAPTION.
A writ, the caption of which is " the state of West Virginia to A. B., constable," etc., or " the state of West Virginia to A. B., constable," would be a writ running in the name of the state of West Virginia, as required by the constitution. Beach v. O'Riley, 14 W.Va. 55.
But a writ, the caption of which is " state of West Virginia, Kanawha county, ss.: to A. B., constable, etc.," and which in the body of the writ does not command " in the name of the state of West Virginia," is not a writ running in the name of the state of West Virginia, as required by the constitution, such caption to a writ indicating merely the place, where it is issued, and not the authority by which it is issued. Beach v. O'Riley, 14 W.Va. 55.
When Quashed.--A writ which purports to run in the name of the " commonwealth of West Virginia," should be quashed by reason of not being in conformity to that clause of art. 1, § 5, of the Constitution, providing that " writs shall run in the name of the state of West Virginia." Gorman v. Steed, 1 W.Va. 1.
Writ Not under Constitution.--A summons in the nature of an order to show cause, issued by a town council to a person charged with keeping a nuisance, not being a writ or process, within the meaning of Const. art. 2, § 8, need not run in the name of the state. Town of Davis v. Davis, 40 W.Va. 464, 21 S.E. 906.
B. DATE AND SIGNING.
Necessity for Attestation.--All writs which are required to be issued by the clerk of a court must be attested by the clerk in his own name; or, it may be done by his deputy placing the name of his principal to the process. Pendleton v. Smith, 1 W.Va. 16.
When Date Blank and No Attestation.--A writ otherwise regular is not absolutely null and void, because its date is blank and it is not signed by the clerk. Such writ is voidable, and may be avoided by a motion to quash it made by the defendant; but if not so avoided, in the suit, and a judgment is rendered against the defendant by default on such writ, and such judgment is not set aside by motion to the court or by writ of error, it is valid and binding as a judgment. Ambler v. Leach, 15 W.Va. 677; Laidley v. Bright, 17 W.Va. 779.
But see Hickam v. Larkey, 6 Gratt. 210, which holds that a writ which purports to be a pluries capias, but which is without date and is not attested by the clerk is wholly null and void as process, and all subsequent proceedings on such writ are null and void.
Process Not Signed by Justice.--Process in a justice's court not signed by the justice is null and void and cannot be considered as commencing the action under the statute providing that actions before justices are commenced by summons. (Ch. 50, § 19, W.Va. Code.) Colborn v. Booth, 41 W.Va. 289, 23 S.E. 556.
C. NAMES OF PARTIES. --It is better in judicial process, or other legal documents, to use the full Christian names and surnames of parties therein, not mere initials. Slingluff v. Gainer (W. Va.), 37 S.E. 771.
D. STATEMENT OF CAUSE OF ACTION.
1. In General. --The plaintiff must endorse upon the writ the true nature of the action and, if it is not so endorsed, the court may dismiss the suit at the term next after an office judgment has been entered on such writ, but not afterwards. Williams v. Campbell, 1 Wash. (VA) 153.
2. In Justice's Court. --Section 49, ch. 50, W.Va. Code, provides that there shall be but one form of action in a justice's court which shall be denominated a civil action. The words " civil actions" in the form of summons given in section 26 were intended to apply to the summons and the words following " for money due on contract" or " for damages for a wrong" are not part of the summons but are a statement of the cause of action and are a part of the pleadings. Therefore, where a person sues to recover money lost in gambling, stolen, or for which indebitatus assumpsit would lie at common law, either phrase is sufficient, so far as the summons is concerned, to describe the cause of action, and motion to quash the summons, because it summons him to answer on action " for damages for a wrong," will not be sustained. O'Connor v. Dils, 43 W.Va. 54, 26 S.E. 354.
Not Bad for Stating Two or More Causes.--If the summons in a case before a justice states a legal cause of action, and is in other respects sufficient, the justice ought not to quash it simply because it states two or more causes of action. Fouse v. Vandervort, 30 W.Va. 327, 4 S.E. 298.
3. Description of Premises in Unlawful Detainer. --Summons in an action of unlawful detainer, brought before a justice, requiring the defendant to answer in an action for the recovery of the possession of certain real estate and also claiming damages for the unlawful detention of such property, is good although it is required by statute in such case that the summons shall require defendant to answer for " unlawfully withholding" the premises. Simpkins v. White, 43 W.Va. 125, 27 S.E. 361.
Complaint Aiding Description in Summons.--In an action of unlawful entry and detainer the complaint, on which the original summons or warrant was issued by the justice under said act, may be looked to by the court in aid of the description of the premises contained in the warrant or summons. Moore v. Douglass, 14 W.Va. 708.
Must Describe with Convenient Certainty.--" To describe the premises" as is required by statute of the summons in an action of unlawful detainer, is equivalent to " describing the premises with convenient certainty" required by statute of a summons in an action of ejectment. Although the latter statute adds that the reason for such requirement is that possession may be delivered and the former does not add it, yet, it is clear that this is the reason for such requirement in both cases. Gorman v. Steed, 1 W.Va. 1.
What Is Convenient Certainty.--Description of premises in summons in unlawful detainer before a justice shall describe the premises with convenient certainty, so as to enable the sheriff to deliver possession; but that description need not be so certain as in itself and alone to enable him to do so, because he may deliver, as the plaintiff directs or according to information from other sources, provided he does not violate the description in the summons. If that description can be rendered certain by extrinsic evidence, it is sufficient. Simpkins v. White, 43 W.Va. 125, 27 S.E. 361; Moore v. Douglass, 14 W.Va. 708.
Thus it was held that a summons, which gave the county in which the real estate was situated, the quantity thereof, the creek and land which bounded it, and who lived there, described the land with sufficient certainty to enable the sheriff to deliver possession thereof. Simpkins v. White, 43 W.Va. 125, 27 S.E. 361.
And so it is held that to describe premises with reasonable certainty does not mean that the summons must describe the premises by metes and bounds. Moore v. Douglass, 14 W.Va. 708.
What Is Not Convenient Certainty.--It was held, under the statute requiring the summons in an action of unlawful detainer to describe the premises, that a summons against a defendant " to appear before a justice at his office in the township of town, at Raleigh courthouse, in the said county, on the 25th day of March, 1871, to answer the complaint of the board of supervisors of Raleigh county, in a civil action, for unlawfully entering and withholding from the plaintiff a certain town lot known as the Spring Lot, immediately in front of the courthouse, marked on the town plat R., enclosed by a plank fence, supposed to contain ___ acres" was substantially defective in not describing the lot with convenient certainty. It failed to state the town or county in which the lot lay. Supervisors v. Ellison, 8 W.Va. 308.
And so under the same statute it was held that land described as " a certain tract or parcel of land lying and being in the county of Ritchie near Gorman's Tunnel, and, containing about ten acres," was insufficiently specified. Gorman v. Steed, 1 W.Va. 1.
Again, under the statute, it was held that where the summons in an action of unlawful detainer described the premises in controversy as " one certain schoolhouse and lot, situate in Kanawha county, and state of West Virginia, in the school district of Union, and subdivision No. 15 of said school district," this was not sufficient description of the premises in controversy to meet the requirements of the law in such case, as, in such action, whether the description in the summons be general or special, it should be such, as that therefrom the locality of the premises in question might be ascertained, and the premises be identified with reasonable certainty. The Board of Education v. Crawford, 14 W.Va. 790.
E. WHAT PROCESS SUFFICIENT.
1. In General. --A summons is sufficient which gives the defendant notice of the character of the offense with which he is charged, and apprises him of the place where, and the time when, he must appear to make his defense. State v. Gilmore, 9 W.Va. 641.
2. To Answer a Presentment. --Where, upon a presentment for unlawful gaming at cards at a particular place within six months next preceding, process is issued summoning the defendant to answer a presentment for unlawful gaming at cards, generally, without specifying place or time, such process is good and sufficient. Word v. Com., 3 Leigh 743.
IV. VENUE.
A. COMMON-LAW RULE. --It is a general principle of the common law that a transitory action can be brought against a party wherever he may be found and served with process; no matter where he may reside or where the cause of action may have arisen. Beirne v. Rosser, 26 Gratt. 537; Mahany v. Kephart, 15 W.Va. 609; Humphreys v. Newport News & M. V. Co., 33 W.Va. 135, 10 S.E. 39; Vinal v. Core, 18 W.Va. 1.
This common-law rule seems to be applicable also in chancery. Hughes v. Hall, 5 Munf. 431. Thus the several superior courts of chancery have jurisdiction in cases where their process is served upon the defendant, within their respective districts; though his place of residence and also the land in controversy be in a different district. Hughes v. Hall, 5 Munf. 431.
B. CHANGES BY STATUTE. --It is provided by statute that any action at law or suit in equity except where it is otherwise specially provided may hereafter be brought in the county (or corporation) 1st, wherein any of the defendants may reside. 2d, wherein the cause of action or any part thereof arose, although none of the defendants may reside therein. This statute is held not to change the common-law rule that a transitory action can be brought against a party wherever he may be found and served with process, if the case is not covered by the statute. Beirne v. Rosser, 26 Gratt. 537; Vinal v. Core, 18 W.Va. 1. And see Va. Acts 1899, 1900, ch. 329, p. 355, a statute confirming the doctrine of Beirne v. Rosser, 26 Gratt. 537.
C. HOW DIRECTED AND SERVED UNDER THE STATUTE.
Where Suit Brought at Residence of Defendant.--Where an action is brought in the county wherein any of the defendants reside, process may be directed to the officer of any county in the state for service on the defendants (see Code provisions W.Va. Code, ch. 123, § 1, clause 1, ch. 124, § 2); vinal v. Core, 18 W.Va. 1.
But where an action is brought in the county wherein any of the defendants reside and this is the only ground of jurisdiction, if the return of the officer is a " nonresident" or " no inhabitant of my bailiwick," the action should abate as to him unless some other ground of jurisdiction be shown. (W. Va. Code, ch. 123, § 1, clause 1, ch. 125, § 8); Steele v. Harkness, 9 W.Va. 13; Chapman v. Maitland, 22 W.Va. 329.
Where Cause of Action or Part Thereof Arose.--By statute it is provided that where an action is brought in the county (or corporation) wherein the cause of action or part thereof arose, as provided above, process except when against a railroad, canal, turnpike, telegraph (or in West Virginia, an insurance company), cannot be directed to an officer of any other county or corporation than that wherein the action was brought, and, if it is so directed, the process is illegal and void and the case will be dismissed from the docket on the motion of the defendant. Warren v. Saunders, 27 Gratt. 259; Vinal v. Core, 18 W.Va. 1; Brown v. Chapman, 90 Va. 174, 17 S.E. 855; Steele v. Harkness, 9 W.Va. 13; Dillard v. Central Va. Iron Co., 82 Va. 734, 1 S.E. 124. And see Lavell v. McCurdy, 77 Va. 763, citing and approving Warren v. Saunders, 27 Gratt. 259.
Thus, where an account was brought in the county wherein the cause of action arose and the defendant was an iron company, it was held that process against the defendant company could not have been directed to, or executed by an officer of any other county or corporation than that wherein the action was brought. Dillard v. Central Va. Iron Co., 82 Va. 734, 1 S.E. 124.
But where an action was brought under this statute against an insurance company, it was held that it was a case within the exception and that process could be directed to an officer of another county than that wherein the action was brought. Harvey v. Parkersburg Ins. Co., 37 W.Va. 272, 16 S.E. 580.
And notice that when a case comes within the exceptions and process is directed to an officer of some other county (or corporation) than that wherein action is brought, the writ is illegal, unless it is executed at least ten days before the return day. Raub v. Otterback, 89 Va. 645, 16 S.E. 933.
It is further to be observed that where an action was brought in the county where the cause of action or part thereof arose, and this is the only ground of jurisdiction, if the officer returns " nonresident," this, according to a statute, means that the defendant is a nonresident of the state, and the suit must abate, unless some other ground of jurisdiction be shown. Steele v. Harkness, 9 W.Va. 13; Chapman v. Maitland, 22 W.Va. 329.
D. SUITS AGAINST CORPORATIONS. --A foreign corporation doing business in the state, having no principal office or president or other chief officer resident therein, may be sued in any county wherein it does business, where the cause of action arose out of the state, if process can be legally served in such county. Humphreys v. Newport News, etc., Co., 33 W.Va. 135, 10 S.E. 39; Mahany v. Kephart, 15 W.Va. 609.
Thus it was held that where a debt arose outside of the state, and the only property of the nonresident debtor was a debt due from a corporation doing business in the state, the creditor residing in the state might attach the debt in the county or corporation where the corporation did business by serving process on the agent residing there. Mahany v. Kephart, 15 W.Va. 609.
V. SERVICE.
A. BY WHOM.
1. By What Officers.
In General.--Where the process in a case is one which it is unfit for the sheriff to execute, because of personal interest in the suit by statute, it is the duty of the coroner to execute the same, and, whenever the office of coroner is vacant, or the coroner is interested or not authorized to act, such process is to be directed to or done by a constable. See § § 893-5, 3224, Va. Code. Andrews v. Fitzpatrick, 89 Va. 438, 16 S.E. 278.
In Justice's Court.--It is especially provided by statute that process in a justice's court may be served by a special constable. See Code, § 30, ch. 50. Newlon v. Wade, 43 W.Va. 283, 27 S.E. 244.
In Johnson v. MacCoy, 32 W.Va. 552, 9 S.E. 887, the court expresses the opinion that the service of process in a justice's court may not only be by a constable or special constable but also by any credible person though not an officer; that the statutes providing the method of service of process in a justice's court are not exclusive but process there may also be served as it may be done in a circuit court under ch. 124, of the Code.
2. By Private Persons. --The provision of § 2, ch. 124, that " process to commence suits where the original is returned not executed may also be served by any credible person" does not mean that there cannot be service of process by a private individual without the original writ having been first returned " not executed" by an officer. Its meaning is that not only original process may be served by an individual according to Code, ch. 124, § 6, and ch. 121, § 1, but also alias or " pluries " process where the prior process has been returned unexecuted. Hollandsworth v. Stone, 47 W.Va. 773, 35 S.E. 864.
Meaning of " Credible Person." --Under § 2, ch. 124, of the Code providing that process to commence suits where the original is returned not executed, may be served by any credible person; and the return of such person verified by his affidavit, shall be evidence of the manner and time of service, it is held that the word " credible person" means a person worthy of belief. Peck v. Chambers, 44 W.Va. 270, 28 S.E. 706.
Judgment for Any Amount.--A judgment may be had in the circuit court for any amount, however large, upon a service by any credible person verified by his affidavit according to statute. Johnson v. MacCoy, 32 W.Va. 552, 9 S.E. 887.
B. TIME.
1. When Returnable to Rules.
General Rule.--Process may be served on or before the same first Monday of rule days to which it is made returnable. Foley v. Ruley, 43 W.Va. 513, 27 S.E. 268; Spragins v. W.Va. C. & P. R. Co., 35 W.Va. 139, 13 S.E. 45; Noell v. Noell, 93 Va. 433, 25 S.E. 242.
Exception When Service on Corporation.--It is provided by statute that if the process or notice against a corporation be served on an agent, or be served in any other county or corporation than that wherein the suit or proceeding is brought or had, it shall be served at least ten days before the return day of such process or notice.
Under this statute it is held that when process to commence an action against a corporation is sued out and executed on an agent of the corporation less than ten days before the return day thereof, the proper course to be pursued is to quash the return of the officer and remand the case to rules, in order that an alias summons may be issued, and not to dismiss the action. Norfolk, etc., R. Co. v. Carter, 91 Va. 587, 22 S.E. 517; Richmond, etc., R. Co. v. Rudd, 88 Va. 648, 14 S.E. 361; Virginia, etc., Ins. Co. v. Vaughan, 88 Va. 832, 14 S.E. 754.
Again, it is held under this statute that a judgment by default against a corporation rendered on return of a summons, which shows that it was executed on an officer of the company in a county other than that wherein the suit was brought, and was not served ten days before the return day thereof, is a void judgment, and may be assailed collaterally by third persons. Staunton, etc., Co. v. Haden, 92 Va. 201, 23 S.E. 285.
Exception in Case of Unlawful Detainer.--Summons in an action of unlawful detainer must be served at least ten, and not more than ninety days before a term of the court. Gas Co. v. Wheeling, 7 W.Va. 22.
2. When Returnable to Term. --There is no specific day mentioned for the return of writs to the district courts and they may be legally executed at any time during the term to which they are returnable. Dunbar v. Long, 4 Hen. & M. 212. But a writ cannot be executed after the term to which it is made returnable. Crews v. GarlandMunf. 491.
3. On Legal Holiday. --The service of process on a legal holiday is valid and binding. Horn v. Perry, 11 W.Va. 694. Thus the service of process on the 4th of July is not illegal and is a good and binding service. Horn v. Perry, 11 W.Va. 694.
C. ON CORPORATIONS.
1. Place.
a. General Rule. --Under the statute providing for the service of process on corporations, service on any corporation, other than a bank of circulation, may be on any agent thereof in the county or corporation in which he resides, or in which the principal office of the company is located, whatever may be the employment of such agent. Norfolk & W. R. Co. v. Cottrell, 83 Va. 512, 3 S.E. 123.
b. Special Rule in Justice's Court. --Where service of process on a corporation in an action brought in a justice's court is made either on a person authorized to be served by § 34, ch. 50 of the Code or on a person authorized by § 7, ch. 124, which is allowed to be done by the last part of § 34, ch. 50, it is provided by § 38, ch. 50, of the Code, that the process must be served in the county in which he upon whom it is served resides and the return must show that fact. Taylor v. Ohio River R. Co., 35 W.Va. 328, 13 S.E. 1009; Kanawha, etc., R. Co. v. Ryan, 31 W.Va. 364, 6 S.E. 924; Hopkins v. Balt. & O. R. Co., 42 W.Va. 535, 26 S.E. 187; Harrow v. Ohio River R. Co., 38 W.Va. 711, 18 S.E. 926.
Thus it is held under these provisions that a summons to commence the suit before a justice served on the freight and passenger agent of the company is good if it is served in the county in which such agent resides. Harrow v. Ohio River R. Co., 38 W.Va. 711, 18 S.E. 926.
Again it was held under the above statutes that where process in a justice's court was served on the person appointed by power of attorney from the corporation to accept service on its behalf, and the return failed to show that it was served in the county in which such person resided, the service was invalid, and, there having been no appearance by the corporation before the justice, a judgment rendered in such case would be a nullity. Kanawha & O. R. Co. v. Ryan, 31 W.Va. 364, 6 S.E. 924.
And so, in another case it is held, that service of a summons in an action before a justice, against a domestic railroad corporation, upon its president, must be in the county in which he resides, and the return must show that fact, else it is invalid. And that a judgment based on a return of service not showing that fact, there being no appearance by the corporation, is void. Taylor v. Ohio River R. Co., 35 W.Va. 328, 13 S.E. 1009.
But see Hopkins v. Balt. & O. R. Co., 42 W.Va. 535, 26 S.E. 187, a case in which it was held that where process against a corporation in a justice's court was served on a station agent of a railroad company, and the return failed to show that it was served on such agent in the county of his residence, though this would invalidate the return and the judgment thereon, yet the defect would not affect the summons, and, hence, would not be ground for a motion in the circuit court to quash both summons and return, and would not warrant the judgment quashing both and dismissing the suit finally.
c. Special Rule Applied in Circuit Court. --It is provided under the statute directing the manner of the execution of process, that when person or property is not to be taken into custody, or it is not otherwise specially provided, such service shall be subject to the regulations contained in the several sections from 32 to 39, inclusive, of chapter 50 of the Code, which includes section 38, which provides that service under said sections shall be in the county in which the person resides, and the return must show this, otherwise the service shall not be valid. Frazier v. Kanawha & M. R. Co., 40 W.Va. 224, 21 S.E. 723.
Under this statute it was held, that where process, emanating from a circuit court against a corporation, was served upon any person appointed pursuant to law to accept service for it, such service should be served in the county in which such person resided and the return should state that fact, otherwise the service was not valid, and that, there having been no appearance by the defendant previous to the motion to quash, the judgment rendered in the case was void. Frazier v. Kanawha & M. R. Co., 40 W.Va. 224, 21 S.E. 723.
d. Effect outside State. --Service of process upon corporations must be in the state, upon an officer or agent resident there. Where suit is brought in the state against a corporation in the county in which it has its chief office, and process is served upon the president of the corporation resident in another state by a third party who makes affidavit as required by statute, such service is insufficient to give the court jurisdiction. Dillard v. Central Virginia Iron Co., 82 Va. 734, 1 S.E. 124.
2. On What Officers.
In General.--It is provided by statute that process against a corporation may be served on the president or other chief officer; in his absence on certain named officers and if there are none, or they are absent, then on any agent thereof or any person declared by the laws of the state to be an agent of such corporation. Norfolk & W. R. Co. v. Cottrell, 83 Va. 512, 3 S.E. 123. It is held that the general superintendent and vice president of a railroad company are agents of the corporation within the meaning of this statute, and a return showing service of process on either one of them would be good. Norfolk & W. R. Co. v. Cottrell, 83 Va. 512, 3 S.E. 123.
On Director or Cashier of Express Company.--Service upon a director or cashier of an express company is sufficient, though they disclaim in their answers the right to answer officially. Lewis' v. Glenn, 84 Va. 947, 6 S.E. 866.
On Depot or Station Agent of Railroad Company.--In an action against a railroad company to recover damages for killing a horse, the summons may be served upon a depot or station agent in the actual employment of the company, residing in the county or township wherein the action is brought; and the return of an officer showing that such process has thus been served is sufficient. Douglass v. Kanawha & M. Ry. Co., 44 W.Va. 267, 28 S.E. 705.
On President Who Is Attorney for Plaintiff.--Service of process upon the president of a defendant corporation, who is attorney for the plaintiff in the suit, is not void, but voidable upon proper exception thereto. United States Blowpipe Co. v. Spencer, 46 W.Va. 590, 33 S.E. 342.
On Quondam President of Defunct Corporation.--Service of process on the late president of a corporation which has ceased to exist is sufficient, though the process might have been served by publication, as prescribed by § 1103 of the Code. The latter method is simply cumulative. Richmond, etc., Railway Company v. New York, etc., Railway Company, 95 Va. 386, 28 S.E. 573.
On Newly-Appointed Director.--Where one is notified of his appointment as a director without declining it, and afterwards receives a summons for the company without remonstrating, his acceptance may be presumed, and it is no defense for the company that he, in the absence of collusion, failed to deliver the summons. Danville & Western R. Co. v. Brown, 90 Va. 340, 18 S.E. 278.
On an Agent of Foreign Corporation.--Process against a nonresident corporation may be served on an agent thereof resident in the county wherein suit is brought. Western Union Tel. Co. v. Williams, 86 Va. 696, 11 S.E. 106; Mahany v. Kephart, 15 W.Va. 609.
Where a resident agent is appointed by a foreign corporation under a statute requiring such appointment for the purpose of serving process, his power to accept service of process is irrevocable as long as any obligations of the corporation exist. Conn. Mut. Life Ins. Co. v. Duerson, 28 Gratt. 630.
3. Personal Judgment against Foreign. --A personal judgment or a decree for specific performance may be rendered against a foreign corporation where process against it has been served within the state on the person appointed pursuant to law to accept service on its behalf. Shafer v. O'Brien, 31 W.Va. 601, 8 S.E. 298; Webster Wagon Co. v. Home Ins. Co., 27 W.Va. 314.
But it is held in Gilchrist v. West Virginia, etc., Lumber Co., 21 W.Va. 115, that by the construction which the New York courts put upon the New York statutes prescribing how service of process must be made on foreign corporations, no judgment in personam can be rendered in that state against a foreign corporation, unless it has appeared to the action.
D. ON PRIVATE PERSONS.
1. In General. --There are two modes of service of process, the first mode provided for is that of actual service upon the party in person by delivering him a copy of the process in writing. The second method is the constructive method and this may be done in two ways; first, by delivery of a copy to the defendant's wife or any white person who is a member of his family above the age of sixteen years, or secondly, by leaving a copy posted at the front door at the usual place of abode of the defendant, neither he nor his wife nor any white person who is a member of his family and above the age of sixteen years being then found there. Lewis v. Botkin, 4 W.Va. 533.
2. Actual and Constructive Distinguished. --The effect attributed to the actual service of process in conferring jurisdiction over the person is very different from the effect of that constructive service which derives its efficacy from a statute. Where there has been personal service upon a defendant, mere irregularity is not sufficient to defeat the jurisdiction of the court; but where the service is wholly dependent upon a statute for its efficacy, it has no validity, unless the terms of the statute by which it is authorized and prescribed are strictly followed. Staunton Perpetual B. & L. Co. v. Haden, 92 Va. 201, 23 S.E. 285.
3. Constructive.
a. In General. --An execution of the summons in any of the modes prescribed by law, for constructive service such as leaving a notice with members of a person's family, or posting notice on the door, etc., is equivalent to an execution by delivering a copy in writing to the party in person. Goolsby v. St. John, 25 Gratt. 146; Balt., etc., R. Co. v. P. W. & KY. etc., R. Co., 17 W.Va. 812.
Where constructive service of process is allowed in lieu of personal service, the terms of the statute by which it is authorized and prescribed must be strictly followed, or the service will be invalid, and the judgment rendered thereon by default void. Staunton Perpetual B. & L. Co. v. Haden, 92 Va. 201, 23 S.E. 285.
b. How Made. --Where process is served as a notice is served (see W.Va. Code, ch. 124, § § 1, 6, ch. 121, and C. V., § § 3224, 3207) it may be served
1st. By delivering a copy thereof in writing to the party in person.
2d. If he be not found at his usual place of abode, then by delivering such copy and giving information of its purport to his wife or any (white) person found there, who is a member of his family and above the age of sixteen.
3d. If neither he nor his wife nor any such white person be found there, then by leaving such copy posted at the front door of such place of abode. Capehart v. Cunningham, 12 W.Va. 750.
Under this statute, a return stating that the person to be notified was not at home, was sufficient to authorize service upon a member of his family. Fowler v. Mosher, 85 Va. 421, 7 S.E. 542.
Again, where the return of process served on defendant's daughter stated that it was left with her at defendant's " residence," the word residence is equivalent to the words " usual place of abode" used in the statute. Smithson v. Briggs, 33 Gratt. 180.
Again it is held that where process was served on the defendant's sister or wife, it was not sufficient for the return to state simply that a copy thereof was left with the sister or wife of the defendant, but it should also have said that the defendant was not found at his usual place of abode and that the sister or wife was a member of his family and above the age of sixteen and that he gave information of the purport of the summons to the persons to whom he delivered a copy thereof. Goolsby v. St. John, 25 Gratt. 146.
And so it was held that a service of notice by an officer, showing that he left a copy with a member of defendant's family over the age of sixteen; or an amended return showing that he left an office copy with a white male member of his family over the age of sixteen, the defendant being absent from his usual place of abode at the time, is defective, because, 1st, it does not show that the person to whom the notice was delivered, was found at the defendant's " usual place of abode; " and, 2d, because it does not show that the officer gave to the person with whom he left the notice, " information of its purport," according to § 1, ch. 121, Code of W.Va. Vandiver v. Roberts, 4 W.Va. 493.
And so it was held that where process was served on the daughter of the defendant, a return stating that it was served on his daughter, without adding that the daughter was a member of such party's family, was sufficient, and it would be presumed that the daughter was a member of the defendant's family. Smithson v. Briggs, 33 Gratt. 180.
And again it was held under the statute that where process was served on the defendant's daughter, a return stating that it was left with her and she was a white woman and over the age of sixteen without more was fatally defective, because:
1st. It did not state that she was a member of defendant's family.
2d. It did not state that the copy was delivered at defendant's usual place of abode, he not being found there.
3d. It did not state that when he delivered the copy to her he gave her information of its purport. Midkiff v. Lusher, 27 W.Va. 439.
And in another case it was held that where a legal service of summons against defendant was accepted by his son who was not a member of his family, without his knowledge or authority, there was no legal service on defendant and judgment rendered thereon was null and void. Finney v. Clark, 86 Va. 354, 10 S.E. 569.
Yet again it was held that where process was served in the third mode prescribed by this statute a return stating that service was made by " posting an office copy thereof on the front door of each of their dwelling houses," was defective: First, because it did not appear that he left a copy posted at the front door, as the statute prescribed; and second, because it does not appear that it was at the " usual place of abode" of the defendant, as also prescribed by the statute. Lewis v. Botkin, 4 W.Va. 533.
And too, it was held that where process was served in the third mode prescribed by the statute, a return, stating that it was posted on front door of defendant's usual place of abode when in that county, but that at the time of service the house was occupied by a stranger to the suit, was insufficient, as it should have shown that it was posted at defendant's usual place of abode at the time of posting. Capehart v. Cunningham, 12 W.Va. 750.
And so it was held that where a summons was served under this statute upon the sister of the defendant, a white member of his family over sixteen years of age, not by the sheriff, but by another person who made affidavit of the return as stated, this service was sufficient as it was expressly authorized by statute. Price v. Cole, 83 Va. 343S.E. 200.
4. In Action of Ejectment. --It is provided by statute as to the service of process in actions of ejectment, a declaration and notice may be served in the same manner as other notices may, by law, be served, and if the defendant be a nonresident of the state, such service may be made by order of publication as provided by law in other cases, § 11, ch. 110, Acts 1877, p. 160. Witten v. St. Clair, 27 W.Va. 762.
E. ACCEPTANCE.
1. By Private Person. --Generally a practicing attorney may accept service of a writ, or notice for his client, if it is done in good faith, and an attorney, making an acknowledgment of service on the back of the summons, will be presumed prima facie at least to have authority for so doing. Marling v. Robrecht, 13 W.Va. 440.
2. By Corporation. --An acceptance of service on a foreign corporation signed by a party without showing what relation he bore to the corporation is a bad acceptance. Adkins v. Globe Fire Ins. Co., 45 W.Va. 384, 32 S.E. 194.
Thus an acceptance of process reading " service accepted Alf. Paul" is bad because it does not show that he was the attorney appointed by law to accept service of process on behalf of the corporation. Adkins v. Globe Fire Ins. Co., 45 W.Va. 384, 32 S.E. 194.
F. EFFECT IN COMMENCING ACTION. --In a court of chancery, it was formerly necessary for the plaintiff to file his bill before the issuing and service of process. But now in this state, except in injunction suits, it is the practice to issue and have the process to answer served before the filing of the bill, and when the bill is filed the lis pendens relates back to the service of the process. Harmon v. Byram, 11 W.Va. 511; Newman v. Chapman 93; 2 Bart. Chy. Pr. 1035. And see Jackson v. Hull, 21 W.Va. 601; Stone v. Tyree, 30 W.Va. 687, 5 S.E. 878.
Thus, when a bill in chancery is filed, the lis pendens relates back to the service of the subpoena, and not to the day the subpoena was issued. Stone v. Tyree, 30 W.Va. 687, 5 S.E. 878.
The rule given above is true as to time when suit is commenced on an original bill but it does not apply to a case in which a creditor, by petition, comes into a suit already commenced by another creditor; in that case the petitioner's suits is commenced at the time when his petition is filed. Jackson v. Hull, 21 W.Va. 601.
But where a suit is brought by a lien creditor against his debtor to subject the lands of the latter to the payment of his debt, and during the pendency of such suit another lien creditor of such debtor, by leave of the court, files his petition in said suit and is made a party thereto, and process is ordered against the defendant to answer such petition which is not issued at once but is subsequently issued and duly served on the defendant, the statute of limitations ceases to run against the debt of such petitioner at the time he files his petition and not at the time, when the process to answer it is served on the defendant. Jackson v. Hull, 21 W.Va. 601.
VI. ORDER OF PUBLICATION.
A. IN GENERAL. --Notice by publication is a substitute for personal service of notice and it must be made in strict accord with the statute authorizing it, before the court can acquire full jurisdiction to make any order or decree affecting the defendant, or disposing of his property. Haymond v. Camden, 22 W.Va. 180; Dillard v. Krise, 86 Va. 410, 10 S.E. 430.
B. NECESSITY FOR. --No decree should be rendered affecting the interest of an absent defendant, unless it appear (if he be not otherwise brought before the court) that he has been regularly proceeded against by order of publication duly published in a newspaper and posted at the front door of the courthouse. Hadfield v. JamesonMunf. 53. And see Craig v. Sebrell, 9 Gratt. 131, citing and approving Hadfield v. JamesonMunf. 53; McCoy v. McCoy, 9 W.Va. 443; Hunter v. Spotswood, 1 Wash. (VA) 145.
Thus the cause not having been ready for hearing in the court below in the absence of parties who had a right to be heard upon all questions affecting their interest, the order of publication, not appearing to have been duly posted, is in no condition for the appellate court to adjudicate any of the principles of the cause, but it should be remanded to the court below, that proper parties be made thereto by proper process in order to a hearing and decision of the cause according to the rights of the several parties. McCoy v. McCoy, 9 W.Va. 443.
C. ISSUANCE. --It is required by statute that an order of publication be issued either at rules or in term. Under this statute it was held that an order of publication, which by its date appeared to be, and was in fact, issued on a day which was not a rule day, and not issued in term, was clearly without authority and a nullity. Coal River Nav. Co. v. Webb, 3 W.Va. 438.
D. WHEN TO BE MADE. --When notice of taking an account is ordered to be given by publication in a newspaper under Code 1887, § 3221, there must be at least twenty-eight days between the insertion, and the day of taking the account. Dillard v. Krise, 86 Va. 410, 10 S.E. 430.
Parties who are proceeded against by order of publication have one month after the order is completed to appear and plead; and it is error to confirm a conditional judgment at rules before the expiration of that time. Higginbotham v. Haselden, 3 W.Va. 266.
It is error to render a decree at a term which begins before the period of one month has expired from the due execution of an order of publication. Va. Code 1860, ch. 170, § 11. McDonald v. McDonald, 3 W.Va. 676.
Where the time allowed for the defendant, proceeded against as a nonresident, by order of publication, did not expire until the day on which a term of court began it was error to place the cause on the docket for trial. Higginbotham v. Haselden, 3 W.Va. 266.
E. WHAT IT MUST CONTAIN.
Notice by Commissioner of Accounts.--Where a commissioner in chancery has been required to give notice by publication in a newspaper to the parties to a suit of the time and place of taking accounts, the notice will be sufficient if it gives the style of the suit, and contains all that is necessary to inform the parties of the time and place of taking the account, although the names of the parties are not inserted in it. The object of giving the notice by publication is to avoid the expense and delay of personal service where the parties are numerous. Having been once served with process they are presumed to know the style of the suit to which they are parties, and the proceedings had therein. These reasons, however, do not apply to an order of publication to commence a suit against parties not previously served with process, and their names must be stated in the publication. Martin v. South Salem Land Co., 94 Va. 28, 26 S.E. 591.
Order against Defunct Corporation.--An order of publication awarded and published against a defunct corporation, which mentions neither the " unknown stockholders" nor the defunct corporation, is not a sufficient compliance with § 11 et seq. of ch. 124 of the Code providing for orders of publication, and a decree rendered on such process will be set aside by the appellate court and remanded to the circuit court in order that proper process may be taken to bring the parties before the court. Styles v. Laurel Fork, etc., Co., 45 W.Va. 374, 32 S.E. 227.
Where a Deed Is Sought of Heirs.--Where a bill is filed for the specific execution of a written contract between the plaintiff's testator and a railroad company as to real estate of the former and also to make the heirs of the testator make a good deed of the land to the railroad company and the written agreement is filed with the bill, an order of publication stating that the object of the suit is to have the amount due the plaintiff from the railroad company " for land of the decedent taken and appropriated by the railroad company for its use under an agreement a copy of which is filed with the bill, and to obtain a decree requiring the heirs of the decedent to file in the cause a good and sufficient deed, granting to the railroad company all of the land taken and appropriated under such agreement, is sufficiently comprehensive. The agreement referred to related to land owned by the testator alone, and also land owned jointly with another, and, as the agreement was sufficiently specific in its designation of the land, it was not necessary for the order of publication to do more than refer to it, as the agreement showed that it related both to land owned separately by testator and jointly with another, and as the suit was brought on this written agreement, this order of publication showed clearly enough that the heirs were expected to file a deed that would convey both parcels. Steenrod v. R. Co., 27 W.Va. 1.
F. WHEN PROPER.
1. As to Private Persons Nonresident or Unknown Defendants. --Where order of publication has been duly executed against nonresident, or unknown defendants, no other notice is required to be given them in any proceedings of the court, or be fore a commissioner, or for the purpose of taking depositions, unless specially ordered by the court, if those defendants shall not appear within one month after completion of the publication. But if they so appear, then they are entitled to notice in all the subsequent proceedings in the suit. Burwell v. Burwell, 78 Va. 574.
Action of Ejectment.--In an action of ejectment to recover land situate in this state, if the defendant be a nonresident, he may be proceeded against by order of publication, or the declaration and notice may be served upon him outside of the state, in the manner prescribed by § 13. ch. 124 of the Code, and either mode of service will confer jurisdiction upon the forum rei sitoe to determine the ownership of the land in controversy. Witten v. St. Clair, 27 W.Va. 762.
Statute Declaring Persons Nonresidents.--The statute passed February 10th, 1862, declaring certain persons nonresidents, permitted a judgment against them on an order of publication merely, without any attachment levied on property belonging to the defendant. Higginbotham v. Haselden, 3 W.Va. 266.
Affidavit Required Where Defendants Unknown.--The affidavit of a corporation must, of necessity, be made by an agent; and the affidavit of the local attorney of a corporation that the names of certain persons to be made defendants to a bill by such corporation, are to the affiant unknown, is a sufficient compliance with § 3230 of the Code, to authorize a proceeding, by publication, against such persons as " parties unknown." Fayette Land Co. v. Louisville & N. R. Co., 93 Va. 274, 24 S.E. 1016.
Resident Defendants So Served in Certain Cases.--By a statute of the Code of 1860 a remedy was provided by order of publication in certain cases against residents of the state, when after use of proper diligence it could not be ascertained in what county or corporation in the state the defendants were so that they could be served with the ordinary process or summons. Higginbotham v. Haselden, 3 W.Va. 266.
Trustees in Deed of Trust Cannot Thus Be Made Parties.--In a proceeding in chancery by a judgment creditor to subject the real estate of his debtor to the payment of his judgment lien, it is the duty of the plaintiff to make all the lien creditors of the debtor parties to the suit; and where there are liens by trust deeds, the trustees in such deeds must be made formal parties before any sale of the debtor's lands can be ordered, and such trustees cannot be made informal parties by publication. McMillan v. Hickman, 35 W.Va. 705, 14 S.E. 227.
2. As to Corporations.
Insurance Company. --Since a foreign insurance company doing business in the state is by law required by power of attorney to be filed in the office of the auditor of the state to appoint a resident of the state to accept service of processes and notices for the company, on whom all processes and notices could be served, to have the same effect, as though served on the company, notice need never be published against such foreign insurance company as a nonresident. Webster Wagon Co. v. Home Ins. Co., 27 W.Va. 314.
But where a company doing business both in banking and insurance is sued on a policy in the county where the insured property lies under § 3214 of the Code, and there is no agent residing there, on whom process may be served, an order of publication is proper according to § 3225 of the Code and the fact that the company is also a banking company, does not affect the service in the case. Wytheville Ins. Co. v. Stultz, 87 Va. 629, 13 S.E. 77.
Defunct Corporation.--Service of process on a corporation which has ceased to exist may be made by order of publication as prescribed by statute. Richmond Union Pass. Ry. Co. v. New York & S. B. Ry. Co., 95 Va. 386, 28 S.E. 573; Styles v. Laurel Fork Oil & Coal Co., 45 W.Va. 374, 32 S.E. 227.
Nonresident Directors So Served on a Mandamus.--Where an election of directors or managers of a corporation is enforced by mandamus, the proceeding is a suit and by statute it is assimilated to the ordinary action at law. The members of the board of directors being proper parties thereto, those of them who are nonresidents may be proceeded against by order of publication. Cross v. West Virginia Cent., etc., R. Co., 35 W.Va. 174, 12 S.E. 1071.
G. EFFECT OF WAR ON. --A judgment or decree, pronounced in an action at law or suit in equity instituted during the late civil war by a plaintiff residing within the union lines, in a court within said lines, against parties residing within the confederate lines and in the confederate military service, without any appearance by, or notice to such parties other than an order of publication published within the union lines, is absolutely void and may be so treated in the same or any subsequent collateral suit or proceeding. Grinnan v. Edwards, 21 W.Va. 347; Haymond v. Camden, 22 W.Va. 180; Sturm v. Fleming, 22 W.Va. 404; Dorr v. Rohr, 82 Va. 359.
For example during the war between the confederate states and the United States, an order of publication, executed in Virginia, was without legal effect, and no notice, actual or constructive, upon a resident of New York. Dorr v. Rohr, 82 Va. 359.
H. SUBSTITUTE FOR BY PERSONAL SERVICE. --It is provided by statute that personal service of the summons or notice may be made by any person not a party to or otherwise interested in the subject matter in controversy, on a nonresident defendant out of the state which service shall have the same effect and no other as an order of publication duly posted and published against him. Dillard v. Central Va. Iron Co., 82 Va. 734, 1 S.E. 124.
Where service is made under this statute on a defendant outside of the state it must be made fifteen days before the return day and if it is not, it is not only not equivalent to an order of publication but is illegal. Raub v. Otterback, 89 Va. 645, 16 S.E. 933.
Again it is held under the statute that where the affidavit of service outside the state by private individuals fails to show that the affiant was not interested in the suit such service is illegal. Raub v. Otterback, 89 Va. 645, 16 S.E. 933.
It is held that process under this statute can only be made on nonresidents who are natural persons and not on corporations or their agents. Therefore where a suit is brought in a county in the state against a corporation having its chief office there, and process is served upon the president of the corporation resident in another state by a third party who makes affidavit as required by the statute such service is insufficient to give the court jurisdiction. Dillard v. Central Va. Iron Co., 82 Va. 734, 1 S.E. 124.
In an action of ejectment to recover land situate in the state the defendant may be proceeded against under this statute by having the declaration and notice served upon him outside of the state, and such mode of service will confer jurisdiction upon the forum of the place where the land is situate to determine the ownership of the land in controversy. Witten v. St. Clair, 27 W.Va. 762.
It is held that process served upon the defendant under this statute will not warrant a personal judgment against him. Smith v. Chilton, 77 Va. 535; Anderson v. Johnson, 32 Gratt. 558; Raub v. Otterback, 89 Va. 645, 16 S.E. 933.
Thus it is held that where a writ describes simply a personal judgment at law and there is nothing in the proceeding indicating that the defendants have property in the state, the court has no jurisdiction on service of process under this statute, which could only have the effect of an order of publication and would not warrant a personal judgment. Raub v. Otterback, 89 Va. 645, 16 S.E. 933.
I. WHAT JUDGMENTS CANNOT BE RENDERED ON.
1. Judgment in Personam. --Service by order of publication is good in all actions which are substantially in rem, but where the suit is merely in personam, constructive service in this form upon a nonresident is ineffectual for any purpose. Raub v. Otterback, 89 Va. 645, 16 S.E. 933; Dillard v. Central Va. Iron Co., 82 Va. 734, 1 S.E. 124; Smith v. Chilton, 77 Va. 535; Anderson v. Johnson, 32 Gratt. 558; Barrett v. McAllister, 33 W.Va. 738, 11 S.E. 220; Fowler v. Lewis's, 36 W.Va. 112, 14 S.E. 447; Witten v. St. Clair, 27 W.Va. 762.
Thus where a statement claiming profits or damages is filed along with the declaration in an action of ejectment against a nonresident defendant, jurisdiction may be gotten to render judgment as to the land by an order of publication against defendant, or by service of process on him outside of the state, but it cannot be gotten in this manner to render judgment on such statement, as that is a personal judgment. To get jurisdiction in the latter case the defendant must either be served with process within the state, or he must appear to the action and plead, thereby waiving any defect in the service of process. Witten v. St. Clair, 27 W.Va. 762.
And so, where a party is proceeded against as a nonresident by order of publication, it is error to take a bill for confessed and render a personal decree against him, if he has not appeared in the cause. Barrett v. McAllister, 33 W.Va. 738, 11 S.E. 220.
And again a personal judgment for money against a nonresident, on publication, without service of process or appearance, is void, is no lien on land, and may be attacked collaterally. Fowler v. Lewis's, 36 W.Va. 112, 14 S.E. 447.
2. Office Judgments. --The failure of a party not served with process, to appear and make defense within one month after an order of publication has been published, is not evidence of the truth and justice of the claim asserted against him. Consequently the law does not allow an office judgment to be taken and confirmed against such a party, but it requires proof, before a judgment may be rendered. Houston v. McCluney, 8 W.Va. 135.
For example when, by the record of a case, it appears that on publication, the defendant not appearing, an office judgment stood confirmed, and the plaintiff recovered a debt against the defendant, this is not evidence of the debt against a third person claiming a lien, that, but for such debt, would be valid. Houston v. McCluney, 8 W.Va. 135.
K. EVIDENCE OF ORDER OF PUBLICATION.
1. Necessity for. --A decree should not be rendered against a party on an order of publication, unless it appears affirmatively by the record that it has been properly executed upon him. Scott v. Ludington, 14 W.Va. 387; Hoffman v. Shields, 4 W.Va. 490.
Thus where the decree does not state that the order of publication as to the absent defendant was duly executed, or what is tantamount thereto; and the record does not disclose the fact, that as to such absent defendants the order of publication was executed, and such absent defendants are material parties to the bill, and have not appeared in the cause, such decree will be reversed for that reason. Scott v. Ludington, 14 W.Va. 387.
And so where an order of publication does not appear from the record to have been properly executed, no decree should be rendered on it. Hoffman v. Shields, 4 W.Va. 490.
2. Evidence Required to Prove Order Was Made.
a. Testimony of Editor. --The testimony of the editor of a newspaper, that he inserted therein the requisite number of times, an advertisement, the purport of which he states on oath, is sufficient proof of such publication, on a trial in ejectment, without producing the advertisement itself. Moore v. Gilliam, 5 Munf. 346.
b. Certificate of Printer. --In a suit in chancery against absent defendants the only proof of publication of on order calling absentees before the court was the certificate of the printer not verified by oath, but no exception being taken for want of proof of publication and the record setting out that it appeared to the court that the plaintiff had proceeded in the manner prescribed by law, this is a sufficient answer to an objection to the decree on that ground if made by the appellant, much less when made by the appellee alleging an error in his own proceedings. Cunningham v. Smithson, 12 Leigh 32.
c. Recital in Decree. --Where a decree states that the order of publication has been duly published, this is sufficient evidence of the fact in an appellate court and it will not look into the record for evidence of the fact. Hunter v. Spotswood, 1 Wash. (VA) 145; Gibson v. White, 3 Munf. 94; Craig v. Sebrell, 9 Gratt. 131; McCoy v. McCoy, 9 W.Va. 443; Scott v. Ludington, 14 W.Va. 387; Steenrod v. Railroad Co., 27 W.Va. 1. And see Yates v. Stuart, 39 W.Va. 124, 19 S.E. 423, approving Hunter v. Spotswood, 1 Wash. (VA) 145; Moore v. Holt, 10 Gratt. 284.
Decree Must State That Order Duly Executed.--But where a decree recites that there has been an order of publication as to absent defendants, and not that the order of publication has been duly executed, this is not sufficient to show that defendant was properly proceeded against, and without further proof by the record of the fact, the decree should be set aside. McCoy v. McCoy, 9 W.Va. 443.
Recital in Decree Rebutted by Record.--Notice that this rule is applicable in the absence of any proof in the record to the contrary. But when the record shows the process or order of publication, and shows clearly that process was not served or order of publication executed as to any particular defendant, such declaration in the decree will not raise the presumption that it was duly executed. Styles v. Laurel Fork, etc., Co., 45 W.Va. 374, 32 S.E. 227.
d. Of Posting. --Where it is necessary not only to insert an order of publication in a newspaper, but also to post a copy thereof at the front door of the courthouse, proof that the order was properly published in a newspaper is not sufficient to show due process. Myrick v. Adams, 4 Munf. 366; Coal River Nav. Co. v. Webb, 3 W.Va. 438.
Thus proof that an order of publication has been inserted in a newspaper two months, is not sufficient. It should also be proved, that a copy was posted at the front door of the courthouse in which the court is held. Myrick v. Adams, 4 Munf. 366.
And so a mere recital in a decree that an order of publication was returned " duly executed by a publication in a newspaper" would not be sufficient in itself to establish it, if nothing else appeared in the papers of the cause to show how it had been executed, as it does not show a compliance with the statutory provision which then required that a copy of such order should also be posted at the front door of the courthouse of the county on the first day of the next county court after the order was entered. Coal River Nav. Co. v. Webb, 3 W.Va. 438.
VII. RETURN.
A. WHEN RETURNABLE.
1. General Rule. --By statute process must be returnable within ninety days after its date to the court, on the first day of the term, or in the clerk's office, to the first Monday in a month, or to some rule day. Lambert v. Ensign Manf'g Co., 42 W.Va. 813, 26 S.E. 431. And if it is not made returnable within ninety days after its date, or is made returnable to a day which is not a return day, it is void. Kyles v. Ford1; Minotti v. Thompson, 39 W.Va. 67, 19 S.E. 548; Raub v. Otterback, 89 Va. 645, 16 S.E. 933; Lavell v. McCurdy, 77 Va. 763.
2. In Unlawful Detainer. --The provision of the statute above requiring process to be returnable within ninety days from its date is applicable to the summons in unlawful detainer. Gas Company v. Wheeling, 7 W.Va. 22.
Exception to Rule.--The summons in an action of unlawful detainer cannot be made returnable to rules but must be to a term of court. Gas Co. v. Wheeling, 7 W.Va. 22; Gorman v. Steed, 1 W.Va. 1. And it need not be made returnable expressly to the first day or to any particular day of the circuit court, but it may be made returnable generally to the term. Gas Co. v. Wheeling, 7 W.Va. 22.
3. In District Courts. --There is no specific day mentioned for the return of writs to the district courts. Dunbar v. Long, 4 Hen. & M. 212.
4. In County Courts. --By the act of 1740 for establishing county courts it is provided that all process in county courts shall be returnable to the " next succeeding court," and shall be executed three days at least before the day mentioned therein for the return thereof, and, if any process be taken out within three days " before the next court day," it shall be returnable to the next court and not otherwise. This act is interpreted to mean that the return day of writs in the county courts must be on the first day of the term and not thereafter. Dunbar v. Long, 4 Hen. & M. 212.
5. Capias Ad Respondendum. --Under the Revised Code of Virginia 1819, ch. 128, § 7, requiring that a writ of capias ad respondendum should be returnable either to the first day of the next succeeding term in the clerk's office or some previous rule day, a capias made returnable to the next term generally, instead of the first day of the term, is good, and an office judgment thereon will not be set aside. Hare v. Niblo, 4 Leigh 359.
6. On a Suggestion. --A summons on a suggestion issued under the provisions of § 10, ch. 127 of the Acts of 1882 is properly made returnable to the first day of the next term of the circuit court of the county, from the clerk's office of which said summons is issued, although the first day of the next term of such court comes before the expiration of twenty days from the date of the issuance of such summons. Miller v. Whitescarver, 23 W.Va. 10.
7. Order on Attachment. --An order indorsed upon an attachment, requiring a garnishee to appear and answer, is process. It must be returnable to the next term of the court. If it be not so returnable, but skips a term, and is returnable to the second term after its issuance, it is void. Minotti v. Thompson, 39 W.Va. 67, 19 S.E. 548.
B. CONCLUSIVENESS OF THE RETURN.
1. General Rule. --An official return duly made upon process emanating from the court or its officer, by a sworn officer, in relation to facts which it is his legal duty to state in it, is, as between the parties and privies to the suit, and others whose rights are necessarily dependent upon it, conclusive of the facts therein stated. Rader v. Adamson, 37 W.Va. 582, 16 S.E. 808; Bowyer v. Knapp, 15 W.Va. 277; McClung v. McWhorter, 47 W.Va. 150, 34 S.E. 740; Peck v. Chambers, 44 W.Va. 270, 28 S.E. 706; Ramsburg v. Kline, 96 Va. 465, 31 S.E. 608.
And so where the sheriff has returned the process served on the defendants, and the court has ordered the bill taken for confessed as to them, and final decree has been entered in the cause, one of such defendants will not be permitted to contradict the return of the sheriff to such summons, and show that the process was not served on him in this state but in another state. Stewart v. Stewart, 27 W.Va. 167. The privity spoken of must be such as would enable the party thus concluded by the return to maintain an action against the officer for a false return to such process. Bowyer v. Knapp, 15 W.Va. 277.
Apparent Not Real Exception to General Rule.--Where the return of process shows that it was served on a certain party giving his surname, but only the initials to his Christian name, it is not against the rule that the sheriff's return is conclusive and that the defendant cannot be allowed to contradict it to allow defendant to show that he and another man of same initials and surname resided in the county and that the particular summons was served on that other man. Slingluff v. Gainer (W. Va.), 37 S.E. 771.
Qualification to General Rule.--But the return is not conclusive as to parties, when it can be shown that the suitor colluded with the officer to make a false return. McClung v. McWhorter, 47 W.Va. 150, 34 S.E. 740; Ramsburg v. Kline, 96 Va. 465, 31 S.E. 608.
2. When Acts beyond Officer's Duty under Process. --Where process is returnable process, if the officer make return of the performance of acts beyond his duty under such process, such return will be invalid as to such parts, and will not be evidence. Shannon v. McMullin, 25 Gratt. 211; Alexander v. Byrd, 85 Va. 690, 8 S.E. 577.
3. When Acts beyond Officer's Duties of Office. --In cases where a sheriff was bound to act in his official capacity his return should be considered as evidence of the act, unless the contrary be shown; but when he is called on to do that which any other person may do, which he is not bound to do by virtue of his office, he does it as any other individual, and, therefore, his return should not be regarded as any better evidence that the act has been performed by him than a like return made by a private individual. Anonymous, 1 Hen. & M. 206.
4. As to Strangers to Suit. --As to persons not parties or privies to the suit, the return is not conclusive, but only prima facie evidence of the facts therein recited, and subject to be contradicted wherever it is offered in evidence. Bowyer v. Knapp, 15 W.Va. 277.
5. Of a Private Person. --Where process is served by a private person according to § 2, ch. 124, the return of such person is not conclusive and may be shown to be false by direct attack, and the facts therein stated may be controverted by evidence. Peck v. Chambers, 44 W.Va. 270, 28 S.E. 706.
6. On a Foreign Judgment. --The return of a sheriff to process, upon which a foreign judgment has been rendered, is only prima facie evidence of the truth thereof; and the same may be contradicted by parol evidence. Bowyer v. Knapp, 15 W.Va. 277.
C. SIGNING OF RETURN. --The law requires the deputy sheriff to add the name of his principal, as well as his own, to the return of all mesne process executed by him. White v. Johnson, 1 Wash. (VA) 159; Mitchell v. Com., 89 Va. 826, 17 S.E. 480.
D. WHAT RETURN MUST CONTAIN.
1. When Service on Private Person.
Return of " Executed in Person" Good.--The return of " executed in person" signed by the deputy with his own name and that of his principal is sufficient to show that the defendants were actually served. Barksdale v. Neal, 16 Gratt. 314.
Return of " Executed." --In Barksdale v. Neal, 16 Gratt. 314, Moncure, J., expresses the opinion that a return of " executed," made by an officer whose duty it is to execute the process, shows that it was served on the defendant according to its mandate, and it will be presumed that the service was in the mode prescribed by law. But the rest of the judges refused to decide the effect of a return of " executed" merely, deeming it unnecessary in the decision of the case.
Return Omitting to Say Where Process Served.--A return of a summons to answer an indictment, directed to the sheriff of a particular county, is not bad because it omits to state that it was served in that county. State v. Campbell, 42 W.Va. 246, 24 S.E. 875.
Return of " No Inhabitant" on Alias, etc., Not Good.--The regular return to a capias, or alias, and a pluries is " not found," the return of " no inhabitant" is not good. Com. v. HaleVa. Cas. 241.
2. When Service on Corporation.
Must Show That in County Where Person Served Resided.--Where process on a corporation is served under the first part of § 34. ch. 50, or under the last part which authorizes such process to be served according to § 7, ch. 124, the return must show that it was served in the county where the person so served resided. Hopkins v. Balt. & O. R. Co., 42 W.Va. 535, 26 S.E. 187; Kanawha & O. R. Co. v. Ryan, 31 W.Va. 364, 6 S.E. 924; Taylor v. Ohio River R. Co., 35 W.Va. 328, 13 S.E. 1009; Frazier v. Kanawha & M. R. Co., 40 W.Va. 224, 21 S.E. 723.
Thus service of a summons, in an action before a justice against a domestic railroad corporation, upon its president must be in the county in which he resides, and the return must show that fact, else it is invalid. A judgment based on a return of service not showing that fact, there being no appearance, is void. Taylor v. Ohio River R. Co., 35 W.Va. 328, 13 S.E. 1009.
Must Show That Service Was Made on Person Authorized to Accept It.--The return on service on the summons, in an action against a foreign insurance or other corporation, upon an attorney appointed by it to accept service of process must show that he is the attorney so appointed to accept such service. Adkins v. Globe Fire Ins. Co., 45 W.Va. 384, 32 S.E. 194.
Thus, it is held that a return showing the delivery of a summons to " Alf. Paul, attorney in fact and of record for the Globe Fire Insurance Company" is bad in not designating for what purpose he is an attorney. Adkins v. Globe Fire Ins. Co., 45 W.Va. 384, 32 S.E. 194.
But see Webster Wagon Co. v. Home Ins. Co., 27 W.Va. 314, in which it was held that where the return of a sheriff showed that he had served a writ on a foreign insurance company doing business in the state, by serving it on its " lawful attorney," it was prima facie a good service of the writ, and gave to the court jurisdiction to render a personal judgment against such foreign insurance company. It was said that the words " lawful attorney" on such return were to be regarded prima facie as meaning the attorney on whom the statute law authorized such process to be served and the service upon whom was declared to be equivalent to service on such foreign insurance company.
Return of " Executed" Defective.--The return of " executed" on a summons against a corporation would be fatally defective, even after judgment by default, under the statute providing that return of service on a corporation must show that it was made in the county or corporation in which the person served on its behalf resided. Barksdale v. Neal, 16 Gratt. 314.
VIII. ALIAS SUMMONS.
A. IN GENERAL. --Where previous writs of summons have failed for ineffectual service of process, or other irregularities therein, plaintiff is entitled to an alias writ. Danville & Western R. Co. v. Brown, 90 Va. 340, 18 S.E. 278.
Thus, where upon a summons sued out against defendant to answer plaintiff's action the officer returns " not found and copy left," etc., without showing when the copy was left, the plaintiff should then have sued out an alias summons, and not an attachment against defendant's goods to compel appearance, as upon that return, it did not appear that the summons was duly served. Wynn v. Wyatt, 11 Leigh 584.
And so it was held that where process was served on a son of the defendant who was not a member of his family, and not his attorney to accept service of process, and a judgment was rendered thereon, the judgment was void and should be set aside, and the cause be remanded to be proceeded in at law by an alias summons properly served. Finney v. Clark, 86 Va. 354, 10 S.E. 569.
B. BY STATUTE. --It is provided by statute that, if at the return day of any process it be not returned executed, an alias or other process may be issued, without waiting (where the first process is returnable to a term) for the subsequent process to be awarded at rules. Lambert v. Ensign Mfg. Co., 42 W.Va. 813, 26 S.E. 431; Gorman v. Steed, 1 W.Va. 1; United States Blowpipe Co. v. Spencer, 46 W.Va. 590, 33 S.E. 342.
This statute is not the full measure of the power of the court, but, outside of any statute, a court has under its common-law powers the right to take any steps by further process to bring the parties before it. United States Blowpipe Co. v. Spencer, 46 W.Va. 590, 33 S.E. 342.
It is held under this statute that no alias can be issued where the original process has been returned executed. Gorman v. Steed, 1 W.Va. 1.
And so it is held that, if the original process be void, an alias summons should be awarded even though the original were returned. This is upon the theory that, if the original service were void, the return would be void and the same as if there had been no return at all. United States Blowpipe Co. v. Spencer, 46 W.Va. 590, 33 S.E. 342.
IX. OBJECTIONS HOW MADE AND WAIVED.
A. HOW MADE.
1. In General. --Although no process was served on a defendant, he is not entitled to relief from a decree against him, in the absence of proof that he did not have actual notice of the proceedings before the decree was rendered, and that he had a meritorious defense. Preston v. Kindrick, 94 Va. 760, 27 S.E. 588.
2. Plea in Abatement. --It is provided by statute that a defendant, on whom process summoning him to answer appears to have been served, shall not take advantage of any defect in the writ or return, unless the same be pleaded in abatement. Barksdale v. Neal, 16 Gratt. 314; Hinton v. Ballard, 3 W.Va. 582.
For example, the return upon a summons " executed in person," signed by the deputy sheriff with his own name and that of his principal, shows that the summons was actually served on the defendants, and if it is defective the defect can only be taken advantage of by a plea in abatement. Barksdale v. Neal, 16 Gratt. 314.
And so it is held under the statute that where there is a variance in the amount of damages laid between the original writ and alias summons, it can only be taken advantage of by plea in abatement, and is waived by failure to object before verdict. Richmond, etc., R. Co. v. Rudd, 88 Va. 648, 14 S.E. 361.
But see Williams v. Campbell, 1 Wash. (VA) 153, which holds that where the plaintiff in an action omits to indorse upon the writ of summons the true nature of the action, a plea in abatement is not the only way for the defendant to object to irregularity of the writ, but he may also object by making a motion, provided he makes it during the term next after the judgment on the writ was confirmed in the office, but not afterwards.
3. Plea in Bar. --Where the objection to a foreign judgment, on which the action of debt is brought, is that the defendant in the original suit had no notice of the suit, or was never served with process and never appeared to the action, such objection must be made by plea in bar. Wilson v. Bank of Mt. Pleasant, 6 Leigh 570.
4. Motion to Quash. --The proper method to take advantage of any defect in the summons or in the return thereto in a justice's court is by a motion to quash, because in that court there are no formal pleadings, and hence the question cannot be raised by plea in abatement, as it might and ought to be raised in the circuit court, where the suit is brought originally in that court. Layne v. Ohio River R. Co., 35 W.Va. 438, 14 S.E. 123; Todd v. Gates, 20 W.Va. 464.
5. Motion in Same Court. --It is provided by statute that the court in which there is a judgment by default or a decree on a bill taken for confessed, or the judge of said court in the vacation thereof, may, on motion, reverse such judgment or decree for any error for which an appellate court might reverse it, if the following section was not enacted, and give such judgment or decree as ought to be given. Brown v. Chapman, 90 Va. 174, 17 S.E. 855; Goolsby v. St. John, 25 Gratt. 146; Laidley v. Bright, 17 W.Va. 779; Ferguson v. Millender, 32 W.Va. 30, 9 S.E. 38.
Where there is a joint judgment by default against several defendants and it appears that the writ, a copy of which was served on some of the defendants, was not signed by the clerk, such judgment should be reversed on a motion to reverse the judgment under this statute, and the cause be remanded to rules to be properly proceeded with. Laidley v. Bright, 17 W.Va. 779.
And so it is held that it is error to render a judgment against several defendants, when one of them was not served with process and did not appear, for which he may reverse the judgment by motion under this statute. If he makes such motion and it is overruled, the decision of the circuit court overruling the motion makes such judgment valid and binding, though before void, unless such decision be reversed; but he is still entitled to reverse it, though the judgment has been satisfied by another of the judgment debtors. Ferguson v. Millender, 32 W.Va. 30, 9 S.E. 38.
Where an action is brought in the county or corporation wherein the cause of action or part thereof arose and contrary to law a summons is directed to the sheriff of another county than the one wherein the action is brought, relief will not be given in equity against a judgment by default upon such summons, as the defendant has a complete remedy at law by motion to reverse the judgment under the above-mentioned statute. Brown v. Chapman, 90 Va. 174, 17 S.E. 855.
Where process is made under the statute allowing it in certain cases to be made as a notice is made under § 3207 of the Code of 1887, and the return is not in accord with the statute, the defendant's remedy in such case is not to be sought in equity, but he must make a motion to reverse the judgment as provided by this statute. Goolsby v. St. John, 25 Gratt. 146.
6. Petition to Have Case Reheard. --It is provided by statute that any unknown party or other defendant who was not served with process and did not appear in the case before the date of such judgment, decree or order, or the representative of any such may, within three years from that date, if he be not served with a copy of such judgment, decree, or order more than a year before the end of the said three years, and if he be so served, then within one year from the time of such service, petition to have the case reheard and may plead or answer and have any injustice in the proceedings corrected. Willard v. Willard, 98 Va. 465, 36 S.E. 518; Fayette Land Co. v. Louisville & N. R. Co., 93 Va. 274, 24 S.E. 1016; Lenows v. Lenow, 8 Gratt. 349; Barbee v. Pannill, 6 Gratt. 442; Platt v. Howland, 10 Leigh 507; Meadows v. Justice, 6 W.Va. 198; Handy v. Scott, 26 W.Va. 710; Grinnan v. Edwards, 5 W.Va. 111; Vance v. Snyder, 6 W.Va. 24.
Under this statute a nonresident defendant, who has not been served with process nor appeared before a decree was rendered against him but who petitions to have the cause reheard within one year thereafter, has the right to file such petition and to plead or answer in order to have any injustice done him in the proceedings corrected. Willard v. Willard, 98 Va. 465, 36 S.E. 518.
It is held that where parties have been properly proceeded against as " parties unknown," they may proceed under this statute by appearing in person or by attorney and file their answers, or may appear within three years after entry of a judgment, decree or order against them; and a plea in abatement by a defendant who has been served with process, setting forth the names and residences of all parties interested in the suit, is immaterial and should be rejected. Fayette Land Co. v. Louisville & N. R. Co., 93 Va. 274, 24 S.E. 1016.
A nonresident defendant against whom a decree has been rendered upon an order of publication and who did not appear cannot, in the first instance appeal from such decree, but his only remedy is that provided by the statute given above. Lenows v. Lenow, 8 Gratt. 349; Barbee v. Pannill, 6 Gratt. 442; Platt v. Howland, 10 Leigh 507; Handy v. Scott, 26 W.Va. 710; Meadows v. Justice, 6 W.Va. 198.
But although a nonresident defendant against whom a decree has been rendered upon an order of publication and who did not appear cannot, in the first instance, appeal from such decree, but must seek the remedy provided by this statute, yet, when the court refuses to allow a petition to be filed under the statute, he may appeal. His appeal, however, in such case does not lie from the original decree rendered, but it is to be taken from the order refusing to allow him to file his petition. Grinnan v. Edwards, 5 W.Va. 111.
Where an absent defendant has been proceeded against by order of publication and a judgment or decree has been rendered against him, an injunction will not be granted against the judgment or decree in equity, his only remedy against the proceedings is by petition to be reheard under the above statute. Vance v. Snyder, 6 W.Va. 24.
7. Relief in Equity.
Original Suit in Equity.--Where there is service of process in an equity suit on the wrong person, having the same initials and surname as the defendant intended, the process and return giving only the initials and surname, the only way the defendant could get relief in equity against a decree rendered in such case would be by bringing an original suit to set aside the decree because of accident. Slingluff v. Gainer (W. Va.), 37 S.E. 771.
No Relief unless Fraud by Plaintiff.--A court of equity cannot grant relief against a decree by default rendered against a defendant on the ground that no process was served on him, where the return of the officer and the recitals of the decree show that process was served on the defendant, unless the false return of service was procured or induced by the plaintiff, or he can in some way be connected with the deception. Preston v. Kindrick, 94 Va. 760, 27 S.E. 588.
No Relief from Judgment of Justice.--A judgment pronounced by a justice, without service of process upon or notice to the defendant, is void. But as such judgment may be set aside, even when rendered upon the verdict of a jury, by the circuit court, upon a writ of certiorari, the defendant in the judgment cannot obtain relief against it in a court of equity. Kanawha & O. Ry. Co. v. Ryan, 31 W.Va. 364, 6 S.E. 924.
8. In Appellate Court. --An objection to a defective return of the service of process made for the first time in the appellate court, is too late. Shen. Valley R. Co. v. Griffith, 76 Va. 913.
9. When Right of Exemption Violated.
Cannot Be Done in Another Suit.--Where process in an action of debt was served upon a defendant whilst he was in the military service of the confederate states, and there is an office judgment confirmed whilst he is in the service, the judgment is a valid judgment, and cannot be questioned in another suit. Terry v. Dickinson, 75 Va. 475.
Exemption of Legislator.--Where a party exempt by statute from the service of process because of being a member of the legislature is served with process during the period of his exemption, he cannot plead his privilege either by a plea in abatement or by a plea in bar, but his remedy is by motion to the court at the next term thereof to have all the proceedings subsequent to the issuance of the process set aside and the cause remanded to the rules. McPherson v. Nesmith, 3 Gratt. 237.
Thus, where a suit has been brought against a member of the general assembly and the process has been served upon him, and an office judgment has been entered up against him at the rules, whilst his privilege exists, and confirmed; he may at the next term of the court, though his privilege has then ceased, upon motion, have all the proceedings subsequent to the issuance of the process set aside and the cause remanded to the rules. McPherson v. Nesmith, 3 Gratt. 237.
But see Prentis v. Com., 5 697, which says that the exemption can be claimed both by plea and on motion tendered or made at the proper period.
10. To Order of Publication. --Where a defendant is wrongfully proceeded against by order of publication and a judgment is rendered against him, he cannot attack such judgment in a collateral proceeding, but must attack it by direct proceedings. Wilcher v. Robertson, 78 Va. 602; Lawson v. Moorman, 85 Va. 880, 9 S.E. 150. Thus where a defendant is proceeded against as a person in being and as a nonresident of this state, and an order of publication was accordingly made and regularly executed, its effect is equivalent to an averment on the record that he had in fact been summoned, which averment cannot be contradicted in a collateral proceeding. Wilcher v. Robertson, 78 Va. 602.
And so infants named as defendants to a bill for the sale of their ancestors' land to pay debts, against whom an order of publication is made upon affidavit of their nonresidence, must show the falsity of the affidavit, either then or after they come of full age, by direct proceedings to avoid the decree entered in the suit, and cannot attack it collaterally. Lawson v. Moorman, 85 Va. 880, 9 S.E. 150.
By Whom It May Be Made.--The objection for want of due publication against an absent defendant may be taken by his co-defendant who may be affected by the decree against him; and if made in the appellate court the objection will prove fatal though the absent defendant were not a party in the appeal. Hunter v. Spotswood, 1 Wash. (VA) 145; Gibson v. White, 3 Munf. 94, and Craig v. Sebrell, 9 Gratt. 131, citing and approving these cases. McCoy v. McCoy, 9 W.Va. 443.
Thus where it does not appear by the record that one of the absent defendants was proceeded against by order of publication the decree may be reversed for the omission on the objection of the other defendants. Hunter v. Spotswood, 1 Wash. (VA) 145.
11. Whether Writ Part of Record.
Is Not for Purpose of Defeating Action.--Where the defendant appears a writ is never a part of the record for the purpose of defeating the action unless made so by craving oyer. Stephens v. WhiteWash. (VA) 203; Lambert v. Ensign Mfg. Co., 42 W.Va. 813, 26 S.E. 431.
For example, a variance between the writ and declaration cannot be taken advantage of without craving oyer of the writ. Stephens v. WhiteWash. (VA) 203.
And so a demurrer never reaches the writ unless it is made a part of the record by oyer and not then for matter of abatement; but, when made a part of the record, the writ may be looked to on demurrer as showing the fact of the time when the action was commenced; and when commencing the action within a given time is made an essential element of the right to sue absolutely, and without any qualification or saving for a cause of action created by statute, and the facts thus appearing from the writ and declaration show that the action was not commenced within the two years (the time prescribed), no right of action arises out of the facts averred, and the court, on demurrer, should consider the declaration as not sufficient in law. Lambert v. Ensign Mfg. Co., 42 W.Va. 813, 26 S.E. 431.
Is for Purpose of Sustaining Action.--But for the purpose of sustaining the proceedings which are sought to be reversed the writ may be looked to without oyer. Stephens v. WhiteWash. (VA) 203; Lambert v. Ensign Mfg. Co., 42 W.Va. 813, 26 S.E. 431.
Thus, the writ is to be considered as a part of the record for the purposes of amendment. Hook v. Turnbull, 6 Call 85; Craghill v. PageHen. & M. 446; Payne v. GrimMunf. 297; Stephens v. WhiteWash. (VA) 203.
And so the summons in a justice's court, like the writ in courts of record, must be looked to in order to determine the plaintiff's claim upon the question of jurisdiction. Todd v. Gates, 20 W.Va. 464.
Plea of Covenant Performed, Writ Looked to.--If the writ be in covenant, and the declaration in debt, to which the defendant pleads covenant performed ; the writ (though not made part of the record by oyer) may be resorted to, at the trial, to show the true date of the institution of the suit; and the court may instruct the jury that a deed executed after the date of the writ, (though before the filing of the declaration,) is no performance of the condition of the bond declared upon. Pate v. Spotts, 6 Munf. 394.
B. HOW WAIVED
1. General Rule. --The general rule is that by appearing to the action in any case, for any other purpose than to take advantage of the defective or nonexecution of process, the defendant places himself precisely in the situation in which he would be if process were executed upon him, and he thereby waives all objections to the defective execution or nonexecution of process upon him. Bank of the Valley v. Bank of Berkeley, 3 W.Va. 386; Price v. Pinnell, 4 W.Va. 296; Groves v. County Court, 42 W.Va. 587, 26 S.E. 460; Wandling v. Straw, 25 W.Va. 692; Shepherd v. Brown, 30 W.Va. 13, 3 S.E. 186, 189; Blankenship v. Railroad Co., 43 W.Va. 135, 27 S.E. 355; Layne v. Railroad Co., 35 W.Va. 438, 14 S.E. 123; Mahany v. Kephart, 15 W.Va. 609; Arnold v. Arnold, 11 W.Va. 449; Johnson v. MacCoy, 32 W.Va. 552, 9 S.E. 887; Burlew v. Quarrier, 16 W.Va. 108; Blankenship v. Kanawha & M. R. Co., 43 W.Va. 135, 27 S.E. 355; Morgan v. Ohio River R. Co., 39 W.Va. 17, 19 S.E. 588; Quesenberry v. People's B., L. & S. Ass'n, 44 W.Va. 512, 30 S.E. 73.
Thus, appearance and pleading to the action cures all errors in the process and return. Turberville v. Long, 3 Hen. & M. 309; Simmons v. Trumbo, 9 W.Va. 358; Witten v. St. Clair, 27 W.Va. 762; Hunter v. Stewart, 23 W.Va. 549; Williams v. Campbell, 1 Wash. (VA) 153; Wynn v. Wyatt, 11 Leigh 584; Moore v. Green, 90 Va. 181, 17 S.E. 872; Laidley v. Bright, 17 W.Va. 779; Lockridge v. Lockridge, 1 Va. Dec. 61; Weimer v. Rector, 43 W.Va. 735, 28 S.E. 716.
And so it is held that after issue joined on a plea to the action, it is too late to move the court to dismiss the suit on the ground of a defect in the writ, or for leave to file a plea in abatement thereto. Payne v. GrimMunf. 297.
And so it is held that by appearing and pleading to the action, or by taking or consenting to a continuance, the defendant waives all defects in the process and the service thereof. Harvey v. Skipwith, 16 Gratt. 410; Atlantic & D. R. Co. v. Peake, 87 Va. 130, 12 S.E. 348; Layne v. Ohio River R. Co., 35 W.Va. 438, 14 S.E. 123.
An apparent exception to the general rule exists in case of actions involving the title to real estate, for, if the summons does not contain a sufficient description of the tract in controversy and is not aided by the verdict, no judgment can be rendered thereon. In one case where an action of unlawful detainer was brought in a justice's court, and the summons was substantially defective in its description of the land, and the defendant appeared and defended the action and had a verdict rendered against him, without having filed a plea or answer as was required by law, and on appeal to the circuit court a verdict was rendered against him which in no way aided the defective description in the writ, it was held that the court should have sustained a motion to quash the summons. Supervisors v. Ellison, 8 W.Va. 308.
But in a case of unlawful entry and detainer, where the defendant appeared and pleaded in the justice's court, and on an appeal being taken to the circuit court appeared and consented to a survey of the land in controversy, and after the survey was returned, made a motion to quash the summons because the description of the premises contained therein was insufficient, but did not withdraw his plea, it was held that he had waived all defects in the writ which could be supplied by a verdict. Moore v. Douglass, 14 W.Va. 708, wherein it was said by the court that the case was determined on its own particular facts and was no authority for the proposition that a defendant has no right to move to quash the writ after pleading in bar.
Special Appearance.--Of course, however, the defendant may enter a special appearance for the sole purpose of objecting to the writ, and, if he does this, it can never be construed as a waiver of want of service or of defects therein. Petty v. Frick Co., 86 Va. 501, 10 S.E. 886; Hickam v. Larkey, 6 Gratt. 210; Fowler v. Mosher, 85 Va. 421, 7 S.E. 542; Chapman v. Maitland, 22 W.Va. 329; Bank of Valley v. Bank, 3 W.Va. 386; Wynn v. Wyatt, 11 Leigh 584; Steele v. Harkness, 9 W.Va. 13. For instance, if an order of publication is not published in any newspaper, as required by law, and therefore process is not properly executed upon the defendant, if the defendant appears specially and moves to remand the cause to rules because of the defective execution of the process, the defendant, by his appearance to make the motion, does not waive the proper execution of process. Bank of Valley v. Bank, 3 W.Va. 386.
Indeed it has been held that where a bill is filed against a party as a nonresident, and process is never executed on him by personal service, or order of publication, he has the right to object in an answer to the nonexecution of process; and because the answer contains a full answer to the bill, the party cannot be held to waive that part of it which insists that the court cannot proceed until process is served. Price v. Pinnell, 4 W.Va. 296.
If, on the special appearance, the motion to quash the summons is erroneously overruled, the supreme court will reverse the judgment of the lower court in overruling it, although the defendant after wards appeared to the suit, filed his answer and made full defense thereto, unless he expressly waived such objection. Chapman v. Maitland, 22 W.Va. 329; Steele v. Harkness, 9 W.Va. 13; Quesenberry v. People's B., L. & S. Ass'n, 44 W.Va. 512, 30 S.E. 73.
2. Waiver of Exemptions from Service. --As a general rule the exemption of a party from service of process must be taken during the pendency of the proceedings against him, otherwise the privilege is considered to be waived. Prentis v. Com., 5 697; Turnbull v. Thompson, 27 Gratt. 306.
Thus, if a member of the legislature allows a judgment to be rendered against him during the existence of his privilege exempting him from the service of process and does not seek, during the progress of the proceedings, to abate or suspend them, he will be deemed to have waived his privilege and cannot afterwards be allowed a writ of error coram vobis to reverse the judgment. Prentis v. Com., 5 697.
And so where the defendant was exempt from the service of process because of being in the military service and process was executed upon him and the judgment rendered thereon became final, while he was at home on furlough, it was held that the failure of the defendant to claim his exemption or to make any objection whatever before the judgment was rendered or for ten years thereafter should be considered as conclusive evidence of his intention to waive his exemption. Turnbull v. Thompson, 27 Gratt. 306.
But it is said in Turnbull v. Thompson, 27 Gratt. 306, that if the defendant is in actual service, and is so situated that he cannot assert his privilege, the rule above stated would not apply, as it would be unreasonable and unjust to require the objection to be made while the disability exists. But, when the disability is removed, the defendant ought to claim his privilege within a reasonable time thereafter.
3. Acceptance as a Waiver. --The effect of the " acceptance" of the service of process is a waiver of the formal service and return thereof by an authorized officer, and is sufficient ordinarily for the cause to be proceeded with. Marling v. Robrecht, 13 W.Va. 440.
Thus objection to the process on the ground that it has not been served by the proper officer cannot be made after the defendant has accepted service thereon. Turnbull v. Thompson, 27 Gratt. 306.
X. EVIDENCE.
A. PRESUMPTION. --The presumption is that a party was regularly served with notice or summons, and, if he denies the fact, the burden of proof is on him to show the want of summons. Ferguson v. Teel, 82 Va. 690; Hill v. Woodward, 78 Va. 765; Newlon v. Wade, 43 W.Va. 283, 27 S.E. 244; Stanton-Belment Co. v. Case, 47 W.Va. 779, 35 S.E. 851.
Thus where process is issued in a certain county it is a presumption of law that it was served there, if it does not appear elsewhere to the contrary. Newlon v. Wade, 43 W.Va. 283, 27 S.E. 244.
And so, where the return of service of process by an officer is not dated, the presumption is that the service was made within the time prescribed by law. Stanton-Belment Co. v. Case, 47 W.Va. 779, 35 S.E. 851.
How Presumption Overcome.--The presumption that a party was regularly served with the notice or summons is not overcome by the mere absence of proof that process was regularly served, but there must be affirmative proof of the lack of service of process. Ferguson v. Teel, 82 Va. 690; Hill v. Woodward, 78 Va. 765.
Thus, where the record shows that at rules the cause is matured as to all the defendants, mere absence of a return of service of summons is not sufficient proof of the want of a proper service. Ferguson v. Teel, 82 Va. 690.
Again, where the defendant alleges want of summons or notice, mere failure of the record to state affirmatively that notice was given is not sufficient proof of the lack of notice of process. Hill v. Woodward, 78 Va. 765.
B. CONCLUSIVENESS.
1. Of Decree. --A recital in a decree that all the defendants have been duly summoned, is conclusive, on appeal, in the absence from the record of anything to the contrary. Moore v. Green, 90 Va. 181, 17 S.E. 872; Shafer v. O'Brien, 31 W.Va. 601, 8 S.E. 298; Arnold v. Arnold, 11 W.Va. 449; Wohlford v. Trinkle, 90 Va. 227, 17 S.E. 873.
Thus it is held that the reversing of a suit for sale, of lands, after the sale has been made and confirmed on the ground that one of the defendants has not been served with process, will not be allowed, although she testified positively that she was not served, and no trace of the case appears either on the process book or rule book, where the decree recites that process had been served on all the defendants; there are endorsements on the bill as if rules had been taken; the deputy clerk testified that he issued process against her; an order of publication containing her name was duly published in a newspaper; the deputy sheriff testifies that he served process on her at her home, and returned it to the deputy clerk; and one witness testifies that he had seen a summons for her which appeared to have been returned " executed." Wohlford v. Trinkle, 90 Va. 227, 17 S.E. 873.
2. Of Record. --Where, in a case of a decree of a court of competent jurisdiction, the record declares that notice has been given, such declaration cannot be contradicted by extraneous proof. Wilcher v. Robertson, 78 Va. 602; Marrow v. Brinkley, 85 Va. 55, 6 S.E. 605.