Opinion
04-15-1880
SMITHSON v. BRIGGS & wife.
John W. Daniel, for the appellant. E. P. Goggin, for the appellees.
1. An office judgment in an action of ejectment does not become final without the intervention of a court or jury.
2. The defendant in the ejectment may, upon notice to the plaintiff, appear at the next term of the court, and move the court to set aside the judgment, and allow him to plead therein.
3. In an action of ejectment, the officer returns upon the rule to plead--G. W. Smithson not being found at his usual place of abode, a true copy of the within rule was left with his daughter at his residence, who is over the age of 16 years, and purport explained to her, this 28th day of August, 1871. HELD: It will be presumed that the word " residence" was used as synonymous with " his usual place of abode," and that the daughter was a member of defendant's family, and the notice was sufficient. Anderson, J., dissenting.
This was an action of ejectment in the corporation court of Lynchburg, brought by London Briggs and Susan his wife against G. W. Smithson to recover a house and lot in the city, and they laid their damages for the retention of the house from them at $2,000. The plaintiffs filed their declaration at the rules July 31st, 1871; and thereupon a day was given to the defendant until the next rules, viz: Monday the 28th of August next, to plead to said declaration. And upon this rule the following return was made: G. W. Smithson not being found at his usual place of abode, a copy of the within rule was left with his daughter at his residence, who is over the age of sixteen years, and purport explained to her, this 28th of August, 1871.
At the August rules the defendant not appearing, a judgment was entered for the plaintiffs against the defendant for the premises in the declaration mentioned and the costs, and that their damages be enquired of by a jury at the then next term.
At the next term of the court the defendant not having appeared the office judgment was confirmed as of the last day of the term, and judgment rendered in favor of the plaintiffs for the premises sued for; and on their motion the assessment of their damages was continued until the next term, the judgment on the title in the office having become final.
At the September term 1873, Smithson on notice to Briggs and wife, moved the court to reverse and set aside the judgment by default in the clerk's office of the court and allow him to plead to the action, upon the grounds: First, that the judgment was erroneous and was of no validity, having been without the intervention of a court or jury; and second, that the return of the officer on the rule to plead does not show upon its face that it was served on a member of the defendant's family, or otherwise served according to law.
The motion to reverse and set aside the office judgment came on to be heard on the 7th of April, 1875, when the court overruled it, with costs to the defendants in the motion. And thereupon Smithson applied to a judge of this court for a writ of error and supersedeas; which was awarded.
John W. Daniel, for the appellant.
E. P. Goggin, for the appellees.
ANDERSON, J.
One of the questions raised by the record in this case, and upon which its decision turns, is, does an office judgment in ejectment, become a final judgment of the succeeding term of the court, by mere operation of law, without the intervention of a court, or a jury? The precise question was decided by this court in the case of the James River and Kanawha Co. v. Lee, 16 Gratt. 424. That case was analagous to this, and if it differed at all, it was only in one particular, (which will be hereafter noticed), which did not affect this question. The statutes bearing on the subject were thoroughly examined and carefully construed, and the cases reviewed, and the court held " that an office judgment in an action of ejectment does not become final, without the intervention of the court, or a jury." In that case, as in this, the declaration was filed at rules, and a rule given the defendants to plead at the next rule day; at which day the defendants having failed to appear and plead, though duly served with a copy of said rule, (in which respect alone, is there a question of difference between that case and this), their default was entered, and judgment given against them. After the 15th day of the next term of the court, the defendants appeared and moved the court for leave to plead to issue, and set aside the office judgment. But the court being of opinion that the office judgment became final on the 15th day of the term, not having been previously set aside, overruled the motion.
In like manner, in this case, at a subsequent term of the corporation court, after that at which the clerk entered the judgment, as a judgment by operation of law, without the intervention of the court or a jury, the defendant petitioned and moved the court to allow him to plead and set aside said judgment as invalid, and erroneous, being without the intervention of the court, or a jury. But the court overruled the motion, and gave judgment for the defendants to the motion for their costs. In that case this court reversed the decision, and remanded the cause to the circuit court.
In this case the same ground of error exists for which the judgment in that case was reversed; and an additional ground of error is assigned by the plaintiff in error, that he was not served with notice of the rule to plead, as the statute requires, which if sustained, would of itself be a fatal error in the proceeding to judgment.
The following is the return of the sheriff, which the plaintiff in error contends was not a legal service, to-wit: " G. W. Smithson not being found at his usual place of abode a true copy of the within rule was left with his daughter at his residence, who is over the age of sixteen years, and purport explained to her, this 28th day of August, 1871." In such case the statute authorizes the service of the rule, by delivering a copy thereof in writing to the party in person; or if he be not found at his usual place of abode, 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 years."
When the notice has not been served in person, in order to hold the party bound by a constructive notice, I think the return should show that every material requirement of the statute has been strictly complied with. It is material if the copy is delivered to his wife, or any white person, that it should be delivered to such person at his usual place of abode. If it is delivered to the party in person, it may be delivered to him at his home or abroad. But if delivered to his wife or other person, the service will not be good, unless it is delivered at his usual place of abode; and if not delivered to his wife, the person to whom it is delivered must not only be over sixteen years of age, but must be a member of his family. The latter it seems to me, is just as material, and as important as the other. It will not meet the requirement of the statute to deliver it to a person who may be casually at his usual place of abode. Though it may be delivered there to a daughter who is over sixteen years of age. She must not only be over that age, but she must be a member of his family. It does not follow that she is a member of his family, because she is his daughter. She may be a member of another man's family--her husband's. To say that it was delivered to a daughter is not equivalent to saying that it was delivered to one who was a member of his family. As the name of the daughter is not given, it was not in the power of the defendant below to prove that she to whom it was delivered was a married daughter, and was not a member of his family. It should appear from the return that she was a member of his family.
And to say in the return that the party not being found at his usual place of abode, a copy of the rule was delivered to a person at his residence, it seems to me is not tantamount to saying that it was delivered at his usual place of abode. For it is not unusual for a man to have a residence which is not his usual place of abode, at the time of the service of the process. And this is well illustrated by the case of Gadsden v. Johnson, 1 Nott & McCord 89, cited by counsel for plaintiff in error. It seems to me that it would be establishing an unsafe precedent, to hold a party bound by a constructive notice, when it does not appear from the return of the officer, that all the requirements of the statute have been met with greater certainty than it does by this return. But in this view I am overruled by a majority of the court who think it may be presumed that the word residence was used by the officer as synonymous with " his usual place of abode; " and that it may be presumed that the daughter to whom the copy of the rule was delivered, was a member of the family of the plaintiff in error. But upon the former ground the court is unanimously of opinion, that the judgment of the hustings court must be reversed with costs, and the cause remanded.
The other judges concurred in the opinion of Anderson, J., on the first point, but thought the notice sufficient.
JUDGMENT REVERSED.