Beck v. Semones' Admr.

• Decision Date: 23 September 1926
• Court: Virginia Supreme Court
• Parties: BECK v. SEMONES' ADMINISTRATOR.

Page 429

145 Va. 429

BECK v. SEMONES' ADMINISTRATOR.

Supreme Court of Virginia, Wytheville.

September 23, 1926.

1. JUDGMENT AND DECREES — Fraud in the Procurement of Judgments — Preference by Insolvent Corporation. — In the instant case, a creditors' suit, certain judgments against a corporation were assailed on the ground that they were obtained by fraud. The allegation of fraud in the procurement of judgments was not sustained by the evidence. There was no evidence of actual fraud, but the plaintiffs in the judgments, if valid, obtained priority over one of the creditors for the satisfactions of their debts.

Held: That this was not per se fraud.

2. CORPORATIONS — Insolvent Corporations — Preferences. — A corporation, though insolvent, may give preference to one or more of its creditors over others, if it acts in good faith, with no fraudulent intent.

3. SERVICE OF PROCESS — Personal Judgments — Service on President of Corporation — President also the Plaintiff — Parol Evidence — Verity of Records — Case at Bar. — In the instant case, a lien creditors' suit, certain judgments against a corporation were assailed on the ground that the trial court never acquired jurisdiction over the person of the defendant corporation. The record showed that "the defendant appeared by its president," without showing who that president was, and it was argued that this fact could not be shown by parol. In one of the cases in which the judgments in question were obtained, the president of the corporation was the plaintiff and in the other he represented the plaintiff.

Held: That parol evidence was admissible to show this fact. No attack was made on the absolute verity of the record, but the parol evidence was offered to explain a latent ambiguity in the record itself.

4. SERVICE OF PROCESS — Personal Judgments — Service on President of Corporation — President also the Plaintiff — Parol Evidence — Verity of Records — Case at Bar. — In the instant case, a lien creditors' suit, certain judgments against a corporation were assailed on the ground that the trial court never acquired jurisdiction over the person of the defendant. The record showed that "the defendant appeared by its president" without showing who that president was. Complainant in the creditors' suit offered to show by parol evidence that the president of the corporation was the plaintiff in one case in which judgment was obtained against the corporation and represented the plaintiff in the other. Everything in the record was admitted to be exactly true as therein stated, and the offer was not to vary, alter or contradict it, but to show the circumstances under which the judgments were entered. The fact that the plaintiff was, at the date of the judgments, president of the defendant company was the only fact sought to be shown by the parol evidence, and as this fact in no wise impugns the verity of the record, it was permissible to show it.

5. SERVICE OF PROCESS — Corporations — Service on Officer Who is Suing the Corporation — Collateral Attack upon the Judgment. — When an officer of a corporation, either in his own right or as agent for another, sues the company of which he is the officer, he abandons for the occasion his position as officer and cannot commence an action against the company by service of process upon himself as officer. This would be simply service of process upon the plaintiff instead of upon the defendant. If this could be done and the judgment rendered thereon could not be collaterally assailed, it would open the door to the grossest fraud, and subvert the orderly administration of justice. Where the relation of the officer served to the plaintiff is such as to make it to his interest to suppress the fact of service, service cannot be made upon such officer, although he is within the terms of the statute designating those upon whom service may be made.

6. SERVICE OF PROCESS — Invalid Service — Judgment Void — Collateral Attack. — If the service of process was invalid then the court never acquired jurisdiction of the defendant, and the judgment was void. If a judgment is void, it may be assailed anywhere, at any time, in any way, by anybody. It is immaterial whether the assault be direct or collateral. It is a nullity and may be treated as such.

7. SERVICE OF PROCESS — Invalid Service — Invalid Appearance — Judgment Void — Collateral Attack — Case at Bar. — In the instant case, a lien creditors' suit, certain judgments against a corporation were assailed on the ground that the trial court never acquired jurisdiction over the person of the defendant. The record showed that "the defendant appeared by its president" without showing who that president was. When the ambiguity in the record is explained, the record itself shows that Beck, the plaintiff in one case, and the agent of the plaintiff in the other, was also the president of the defendant company and as such entered appearance for the defendant. The want of jurisdiction over the defendant thus affirmatively appears from an inspection of the record itself, after the ambiguity is removed, and hence renders the judgment void.

8. SERVICE OF PROCESS — nvalid Service — Effect of Decision of Trial Court that the Service was Valid — Case at Bar. — In the instant case, a lien creditors' suit, certain judgments were attacked on the ground of lack of jurisdiction in the trial court. Neither of the actions in which the judgments were obtained could have been lawfully commenced by service on one Beck, as president of the company, or upon appearance for the company entered by him, as Beck was the plaintiff in one case and the agent for the plaintiff in another, and the decision of the trial court that such service or appearance was valid could not make it so. If the service or appearance was illegal, a decision of the trial court to the contrary could not make it legal. If such were true, then the trial court could never, under any circumstances, cumstances, enter a void judgment.

9. JUDGMENTS AND DECREES — Collateral Attack — Want of Jurisdiction. — Where the trial court has adjudged that it had jurisdiction of the subject matter and of the parties, but did not have such jurisdiction, its judgment is void and subject to collateral attack.

10. JUDGMENTS AND DECREES — Collateral Attack — Want of Jurisdiction — Foreign Judgments. — Where it is sought to enforce in one State a judgment rendered in another State, the jurisdiction of the court rendering the judgment may be assailed collaterally.

11. JUDGMENTS AND DECREES — Collateral Attack — Want of Jurisdiction — Domestic Judgments — Common Law. — According to the common law rule adhered to at the present time in most of the States, the presumption in favor of the jurisdiction of a court of general jurisdiction is conclusive and its judgment cannot be collaterally attacked where no want of jurisdiction is apparent of record. Whenever the record of such a court is merely silent upon any particular matter, it will be presumed, notwithstanding such silence, that whatever ought to have been done was not only done but that it was rightly done. So, where a judgment contains recitals as to the jurisdictional facts, these are deemed to import absolute verity unless contradicted by other portions of the record. Consequently, such a judgment cannot be collaterally attacked in courts of the same State by showing facts aliunde of the record, although such facts might be sufficient to impeach the judgment in a direct proceeding against it.

12. JUDGMENTS AND DECREES — Collateral Attack — Want of Jurisdiction — Domestic Judgments — Rule in Virginia. — In the instant case it is pointed out that there is no case in Virginia directly deciding the question whether the want of jurisdiction of a domestic court to render a judgment can be raised collaterally, where the want of jurisdiction is not apparent from the record, and the Supreme Court of Appeals did not find it necessary to decide that question, although it reviewed a number of cases bearing on the question.

13. SERVICE OF PROCESS — Corporations — Service on Officer of Corporation — Name of the Officer — Quaere — Case at Bar. — While process may properly be issued against a corporation, it must be served on a natural person, for it cannot be served on that invisible, intangible entity called a corporation, and the return should show the person on whom it is served. It is doubtful whether or not it is sufficient to show that service was on the "president" of the defendant, without showing the name of the person filling that office. In the instant case, it may well be doubted, therefore, whether the appearance of the defendant by "its president," without disclosing his name, was sufficient.

14. JUDGMENTS AND DECREES — Verity of the Record — Parol Evidence to Show the Name of the President of Defendant Corporation upon which Service was had and Who Appeared for the Corporation — Case at Bar. — In the instant case, a lien creditors' suit, attacking the validity of certain judgments, the Supreme Court of Appeals adhered to its former decisions on the subject of the verity of records and their freedom from collateral attack, and did not think that the decision of the instant case permitting parol proof of the name of the president or defendant corporation in the actions in which the judgments were obtained, where the record showed that "defendant appeared by its president," without showing who that president was, was any departure therefrom, but, if it is such a departure, the instant case must be considered as an exception to the general rule.

15. CORPORATIONS — Authority of President — Action of Board of Directors — Case at Bar. — In the instant case, a suit by lien creditors attacking certain judgments against a corporation, the president of the corporation appeared for the corporation in the action in which the judgments were obtained and waived notice. The only authority that the president had for the...