Blanton v. Carroll

• Citation: 86 Va. 539,10 S.E. 329
• Parties: Blanton et al. v. Carroll et al.
• Decision Date: 05 December 1889
• Court: Supreme Court of Virginia

10 S.E. 329

(86 Va. 539)

Blanton et al.

v.Carroll et al.

Supreme Court of Appeals of Virginia.

Dec. 5, 1889.

Void Judgment—Defendant not Served — Appeal—Notice.

1. Where the original process, and the return thereon, show that a defendant was not included in either, a judgment against her is void, as the presumption of jurisdiction is overcome.

2. Code Va. 1887, § 3457, requiring notice of intention to appeal to be given to the opposite party, does not apply to an appeal from a decree rendered before that section took effect.

Guy & Gillian and J. R. Wilson, for appellants. Edgar Allan, R. M. Dickinson, and J. Samuel Parrish, for appellees.

Lacy, J. This is an appeal from a decree of the circuit court of Notto way county, rendered at the April term, 1888. The suit was by bill in chancery against Nancy T. Blanton and her children, William D. Blanton and others, to subject their real estate in the bill named to the lien of a judgment recovered against B. W. L. Blanton and Nancy T. Blanton, in 1867, by the appellees. The suit was instituted at law, upon the bond of the said B. W. L. Blanton and N. T. Blanton, for $761.08. The original writ or summons was issued against B. W. L. Blanton alone, and served by the sheriff upon him only, as appears by the original summons copied in the transcript, here seen and inspected by this court. Judgment was rendered against "the defendants, " and, both names appearing to the bond and being set forth in the declaration, a writ of fieri facias was issued in June, 1870, but this was never delivered to any officer, and upon it, therefore, there was no return. In June, 1880, a writ of fieri facias was sued out to recover the judgment. The summons in the chancery suit to enforce this judgment was not served upon the said Nancy T. Blanton, and in the progress of the cause the appellants, the children of the said Nancy T. Blanton, filed their bill, and obtained an injunction, which is not copied in the record. A bill was subsequently filed by the same parties, and an injunction obtained. But at the hearing at the April term, 1888, the circuit court dissolved the injunction, and decreed the sale of the real estate of Nancy T. Blanton to satisfy the judgment recovered against her, without notice or other process. From this decree the case was brought to this court by appeal.

It is conceded that if in fact no process was served upon the said Nancy T. Blanton, and that if she had no notice of the proceedings against her before judgment was rendered, the circuit court acquired no jurisdiction of her person; that the judgment was void, and may be disregarded wherever attacked, whether collaterally or otherwise. But the claim of the judgment creditor is that, as the circuit court is a court of general jurisdiction, its jurisdiction will be presumed in favor of its judgment, and that its record cannot be assailed collaterally. It is true that everything will be presumed in favor of the judgments of courts of general jurisdiction unless plainly beyond the jurisdiction of the tribunals from which they emanate, which appears upon the face of the record itself; as when the...