Beirne v. Rosser
| Citation | 67 Va. 537 |
| Court | Supreme Court of Virginia |
| Decision Date | 23 September 1875 |
| Parties | BEIRNE v. ROSSER & TURNER. |
1. R brings assumpsit against B, in the county of N, and the process is served upon him. B appears at the rules, and files a plea in abatement, that at the time of the service of the process upon him, and at this time, he was not and is not a resident of N; but was and is an inhabitant of, and resides in M county, West Virginia. This plea does not give the plaintiff a better writ in this state; and is therefore bad.
2. Plaintiff offers in evidence the copy of a letter fro himself to the defendant, and states that defendant replied to that letter. He states on oath that he placed the letter with other papers in the hands of his counsel in West Virginia that he had written to his counsel to send him his papers by express, which the counsel did, writing to him at the same time that he had sent him all of his papers that were in his hands; but the letter and other papers which he put in the counsel's hands were not in the package of papers so sent. That he had not since applied to the counsel for the letter, because he supposed it was useless after the counsel's letter saying he had sent all the papers. HELD There being no suspicion of fraudulent purpose, that parol proof of the contents of defendant's letter was admissible in evidence.
3. The exception of the defendant to the admission of parol proof of the contents of his letter, not stating what was so proved the appellate court cannot know whether or not the appellant was injured by the evidence, and therefore cannot reverse the judgment even if the admission of the evidence was improper.
This was an action of assumpsit in the Circuit court of Nelson county, brought by Rosser & Turner against Oliver Beirne to recover a balance of $2,378.39, which they claimed to be due to them for constructing a road leading from the Sweet Springs in Alleghany county, to the White Sulphur Springs in Greenbrier. There was a verdict and judgment for the plaintiffs; and thereupon Beirne applied to this court for a supersedeas; which was awarded. The case is fully stated by Judge Moncure.
Watson, for the appellant.
Whitehead, for the appellee.
MONCURE, P.
This is a supersedeas to a judgment of the Circuit court of Nelson county. Rosser and Turner brought an action of assumpsit in that court against Oliver Beirne, a resident of Monroe county, in West Virginia, who happened at the time to be in Nelson county, and upon whom the summons in the case was executed in that county. The declaration contained the common counts. The bill of particulars filed therewith, shows that the action was brought to recover a balance claimed to be due for the construction of a road, leading from the Sweet to the White Sulphur springs. The defendant pleaded in abatement, " that at the time of and before the institution of the suit, and at this time (to wit, the time of filing the plea) he neither was, nor is, a resident of Nelson county, nor of Virginia; but was and is an inhabitant of, and resides in Monroe county, West Virginia; that he has no land, estate or debts within the county of Nelson aforesaid, subject to the claim of the said plaintiffs; and that the cause of action for which said suit was brought, or any part thereof, did not originate in the said county of Nelson, Virginia, but in the county of Monroe, West Virginia, aforesaid." To this plea the plaintiffs filed a demurrer, in which the defendant joined. The demurrer was sustained. The defendant afterwards pleaded non assumpsit; to which the plaintiffs replied generally. On the trial of the issue thus made up, the jury found a verdict for the plaintiffs, and assessed their damages at $2,378.39, with legal interest thereon from the 1st day of January 1867; and judgment was rendered accordingly. On the trial of the cause the defendant excepted to an opinion of the court then given, and tendered his bill of exceptions, which was signed and sealed by the court, and made a part of the record.
It appears from the said bill, that on the trial, one of the plaintiffs (Fayette Rosser), being introduced for the plaintiffs, was shown a paper in the following words and figures, to wit:
" MR. BEIRNE,
Dear Sir: I am willing to make your road from the Sweet springs to the White Sulphur, 19 feet wide, except in difficult places, say 18 feet; and to be paid for thorough grading 60 cents for rock, and 29 cents for dirt, per cubic yard, and the prices for thorough embankments that are given for thorough cutting; $2.88 per perch for bridge masonry, rubble work, and the same price for culverts; the superstructure of the bridges at cost. In changing Cove creek channel, in order to save bridging, 60 cents for rock and 30 cents for dirt. I am willing to construct the road at the above prices, complying with the specifications, and complete it within 12 months from the time of contract for the sum of $850 per mile. I shall expect to be paid every month for the amount of work done--the ten per cent. reserved on the monthly payments.
Respectfully,
| May 8, '60. | THOS. ROSSER. |
The bridges and culverts are not included in the mile:"
and testified that the same was in the handwriting of his father, Thos. Rosser; and being asked if the defendant replied to said letter, answered that " " he did; " and was proceeding to state the contents of the letter of the defendant in reply; to which the defendant by counsel objected; and the witness being asked what had become of the said reply, said that it had been lost; that he, the witness, had possession of it, and he placed it, with other papers, in the hands of a lawyer in Union, Monroe county, West Virginia; that after the witness returned to Virginia, he wrote to his lawyer to send him his papers by express, which the lawyer did; writing to him at the same time that he had sent him all of his papers that were in his hands; but the letter and other papers that he had put into the hands of his said lawyer, were not in the package of papers so sent him by express; and being asked if he ever afterwards applied to his lawyer for the said O. Beirne's letter, said that he had not. And being further asked, why he did not do so, said that he did not think it worth while to apply again, as the lawyer had written to him that he had sent him all of the papers he had in his possession belonging to the witness; nor had he ever informed the lawyer that he had failed to send said reply. And thereupon defendant's counsel objected to the witness stating the contents of the said letter of the defendant, on the ground that no proper foundation had been laid for giving secondary evidence of the contents of the said letter. But the court overruled the said objection, and allowed the witness to testify as to its contents; to which ruling of the court the defendant excepted as aforesaid.
To the judgment aforesaid the defendant applied to a judge of this court for a supersedeas, which was awarded accordingly. The only errors assigned in the petition are: 1st, that the court sustained the demurrer of the plaintiffs to the defendant's plea in abatement to the jurisdiction of the court; and, 2ndly, that the court erred in admitting upon the trial, parol evidence of the contents of the alleged letter of the petitioner.
As to the first error assigned, to-wit: in sustaining the demurrer to the plea in abatement; the court is of opinion that the Circuit court did not err in sustaining the said demurrer.
All actions are either local or transitory. Real and mixed actions are local, and personal actions are transitory. This is a personal action; being for the recovery of damages for the breach of a contract; and is, therefore, a transitory action. 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. See Story on the conflict of laws, 538; and 1 Rob. Pr., new edition, pp. 316, 353, 354, 356 and 357, and the authorities there cited. This general principle is modified by statute which has created various exceptions to it. Most of them will appear by reference to 1 Rob. Pr., new edition, pp. 357 and 358; Code p. 1082, ch. 165; p. 1083, ch. 166; and p. 1088, ch. 167. But this case comes within the general principle and not within any of the exceptions. It is a case in which no court in the state has jurisdiction, except that in which it was brought, whose process was executed upon the defendant within the county over which it has jurisdiction; and that court has jurisdiction because, and only because, the defendant was found and served with process within the county. That fact gave that court jurisdiction, according to the general principle of the common law before referred to. The plea in abatement did not give to the plaintiff a better writ; did not show what court in the state had jurisdiction of the case; which was necessary to make the plea a good one. If the defendant be within the state, so as to be served with process thereon, there must be a remedy against him in some court in the state; and if in no other, in the courts of the county in which he may be found and be served with process. The plea in this case was therefore...
To continue reading
Request your trial