Allen v. Consumers' Can Co

• Decision Date: 23 November 1904
• Citation: 103 Va. 255,48 S.E. 899
• Court: Virginia Supreme Court
• Parties: HILTON & ALLEN v. CONSUMERS' CAN CO.

48 S.E. 899

103 Va. 255

HILTON & ALLEN

v.CONSUMERS' CAN CO.

Supreme Court of Appeals of Virginia,

Nov. 23, 1904.

ATTACHMENT—BOND—GIVING BOND AS APPEARANCE—MOTION TO DISMISS SUIT—INTERLOCUTORY ORDER—POWER TO RECONSIDER—INSUFFICIENT PROCESS—DEFENDANT'S REMEDY.

1. The execution of an attachment bond by a defendant in attachment does not amount to an appearance so as to give jurisdiction to enter a personal judgment against defendant.

¶ 1. See Attachment, vol. 5, Cent Dig. § 697.

2. Where a judgment on a motion to dismiss a cause was an interlocutory order, it did not preclude the court from entertaining a like motion at a subsequent term.

3. Where all the facts on which a claim on the part of defendant that the cause should be dismissed on the ground that no jurisdiction was obtained by the process appears on the record, defendant's remedy is not by plea in abatement, but by appearance to move for dismissal.

Appeal from Circuit Court, Botetourt County.

Action by Hilton & Allen against the Consumers' Can Company. Prom a judgment dismissing the cause, plaintiffs appeal. Affirmed.

Benjamin Haden, for appellants.

E. V. Barley, for appellees.

KEITH, P. On the 18th of June, 1903, the following memorandum was made in the circuit court of Botetourt county: "Hilton & Allen vs. Consumers' Can Company. Trespass on the case in assumpsit Damages $500.00. To 1st July rules for 1903. Benjamin Haden, p. q.

"The defendant is a nonresident corporation having effects coming to it and estate in the county of Botetourt. Issue attachment and designate the Norfolk and Western Railway Company, C. E. Layman, the Bank of Pincastle, and Prank W. Brugh and B. P. Leslie as having effects of the defendant in their possession, and of being indebted to the defendant"

On the same day, an affidavit, which conforms to the statute in other respects, and states that the Consumers' Can Company is a nonresident corporation, was filed with the clerk, and Hilton & Allen entered into a bond, with surety, conditioned to pay all costs and damages which might be awarded against them or sustained by any person by reason of their suing out the attachment.

On July 9, 1903, there appears on the memorandum book the following: "The object of this suit is to recover damages from defendant for shipping to the plaintiffs defective and worthless cans, when the plaintiffshad bought from it, and paid for, merchantable and suitable cans, and for the labor and expense of unloading and hauling said worthless and defective cans, and for the loss sustained by them in replacing such worthless and defective cans with suitable and merchantable cans, and for the freight paid to the railroad companies for bringing said cans from Baltimore; said damages amounting to $500.00." All of which was attested by the clerk.

On the 27th of June the Consumers' Can Company entered into a bond, payable to Hilton & Allen, in the penalty of $600, which sets forth the issue of the attachment and its levy upon a car load of tin cans, and the following condition: "The said Consumers' Can Company, defendant, now desiring to release the whole of the estate attached, hath tendered Consumers' Can Company, incorporated, and the United States Fidelity and Guaranty Company, as principal and surety in such a bond as the law directs. Therefore if the said Consumers' Can Company shall perform the judgment of the court, the above bond to be void; otherwise to remain in full force."

At the first July rules the declaration was filed, and at the second July rules an order of publication in the Fincastle Herald was entered. On August 4, 1903, the Consumers' Can Company, in accordance with notice to that effect, moved the judge of the circuit court of Botetourt to quash the attachment and discharge the defendant and its surety from liability upon their bond, and for reasons appearing to the judge he was of opinion "that the clerk of the circuit court of Botetourt county had no authority to issue the attachment, and that the same be and is hereby abated"; but the judge refused to discharge the Consumers' Can Company from its liability upon the bond, or to grant any other relief asked for by it at that time.

At the October term the can company moved the court to dismiss this cause, "because the court is without jurisdiction, " and at a subsequent day this motion was overruled.

At the March term, 1904, the following order was entered: "This day came again the parties by their attorneys, and the defendant moved the court to dismiss this suit upon the ground that the process against it by order of publication is not sufficient. The court is of opinion, from an inspection of the record, that the defendant has not appeared to plead to the merits of the controversy; that the only ground upon which the circuit court ever had jurisdiction herein was by reason of the attachment sued out on the 18th of June, 1903, and levied on the defendant's effects in this county; that the abatement of said attachment, by order herein made on the 4th day of August, 1903, * * * destroyed that ground of jurisdiction, and that this court has now no jurisdiction to try and hear this case." And thereupon the suit was dismissed, and to that judgment Hilton & Allen obtained a writ of error.

To the action of the judge abating the attachment there was no exception taken. Without meaning to intimate that the order abating the attachment was erroneous, it is sufficient to say that no exception was taken to it, and, whether right or wrong, it cannot be inquired into.

It is claimed by the plaintiffs in error that the execution of the attachment bond by the Consumers' Can Company was an appearance to the action, which gave the court jurisdiction to...