Buttery v. Robbins

• Decision Date: 21 April 1941
• Citation: 14 S.E.2d 544
• Parties: BUTTERY . v. ROBBINS.
• Court: Georgia Supreme Court

14 S.E.2d 544

BUTTERY .

v.ROBBINS.

Supreme Court of the State of Georgia

April 21, 1941.

Error to Circuit Court, Madison County; Lemuel F. Smith, Judge.

Action by William A. Robbins against Nelson Buttery for injuries suffered in an automobile accident. To review a judgment for plaintiff, defendant brings error.

Reversed and case dismissed.

Argued before CAMPBELL, C. J., and HOLT, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, J J.

Duke & Duke and Walsh & Waddell, all of Charlottesville, for plaintiff in error.

E. V. Walker and Downing L. Smith, both of Charlottesville, for defendant in error.

HOLT, Justice.

In June, 1939, William A. Robbins, as a guest of Nelson Buttery, rode with Buttery in Buttery's automobile. As they drove along the Skyline Drive in the Shenandoah National Park and in what had been Madison county, they suffered an accident. Robbins was hurt and sought compensation in damages from his host and has secured a judgment against him for $1,000. From that judgment Buttery appealed to this court and has been awarded a writ of error.

Notice was served upon the defendant, and on it is this return:

"Executed on the 15 day of Dec. 1939, within the county of Madison, by delivering a true copy of the within notice of motion, in person to Nelson Butter

"T. H. Lillard,

"Sheriff of Madison county, Va."

On January 22, 1940, the court, in an order of that day, certifies what then took place:

"On the 1st day of January, 1940, the plaintiff, by counsel, appeared and moved the court to set this case for trial and likewise came the defendant, by counsel, appearing specially, and moved the court to permit the sheriff to amend the return of process on the defendant so as to show the same was served in the Shenandoah National Park and upon objection by counsel for the plaintiff and argument by counsel, said motion was overruled and denied.

"And thereupon, counsel for the defendant moved the court to quash said process and notice of motion because said process failed to show that the same was served within the said Park, and upon objection by counsel for the plaintiff and argument of counsel, said motion to quash was overruled and denied."

The sheriff should have been permitted to amend his return in conformity with the facts.

" * * * It is the fact of service which gives the court jurisdiction. The return is merely the evidence of the jurisdictional fact. If it fails to show the facts as to the service, it may be amended to show them, but, if there has been no service in fact, jurisdiction fails." International Brotherhood, etc., v. Wood, 162 Va. 517, 175 S.E. 45, 48; Alsop Motor Corp. v. Barker, 138 Va. 598, 123 S.E. 350. But courts are extremely liberal in allowing amendments of returns. Burks' Pleading & Practice, 3 Ed., sees. 45 and 46; Federal Land Bank v. Birchfield, 173 Va. 200, 3 S.E.2d 405.

Not only ought the facts to appear, but there is this added possibility: The sheriff may be sued because of his failure to state the facts. It is perfectly true that a sheriff may stand by his return, which in turn must stand if the sheriff so elects. A return unamended stands and can not be attacked collaterally. Burks\' Pleading & Practice, supra, sec. 45; Preston v. Kindrick, 94 Va. 760, 27 S.E. 588, 64 Am.St.Rep. 777. The motion here was not that he be ordered to make an amendment but that he be permitted to do so. He was denied that privilege.

This error of the court may have been harmless and it may have been hurtful. If that part of Madison county taken into the Shenandoah National Park continued to be a part of Madison county for the purposes of this action, the error was harmless; if for those purposes it was no longer a part of that county, then the error was hurtful.

After this motion was denied a plea in abatement was filed, which was rejected for reasons which it is not now necessary for us to consider.

In Hilton & Allen v. Consumers' Can Company, 103 Va. 255, 48 S.E. 899, 901, the court tells us when a motion to dismiss is sufficient and when a plea in abatement is necessary:

"' * * * Where the matter on which the defendant relies to abate the suit is a fact not appearing upon the record or the return of the officer, it must be pleaded in abatement, so as to give the other party an opportunity to traverse and try it. But where all the facts upon which the claim to have the process abated is founded appear by the record, including the return of the officer, of which the court will take notice without plea, there the action may be dismissed on motion.' " Citing Nye v. Liscombe, 21 Pick., Mass, 263; International Brotherhood, etc. v. Wood, supra.

The court will take judicial notice of the fact set out in the motion for judgment that the Skyline Drive is in the Shenandoah National Park. That is a matter of common knowledge, known to everybody else. We should not hold that we alone are in ignorance of that fact. The error contended for, if it be error, is apparent upon the face of the record.

In the petition for a writ of error is this statement:

"At the return day defendant filed a plea in abatement to the jurisdiction of the court and moved to dismiss and quash the return.

"The plaintiff moved to strike the plea and resisted the motions. The sheriff was examined and testified that he had served the notice of motion within the boundaries of the Shenandoah National Park which he considered still a part of Madison county.

"The court sustained the motion to strike the plea in abatement and overruled the motions to dismiss and quash the return."

This statement is inaccurate in one particular: The motion to dismiss and quash was heard before the plea in abatement was tendered. But it does show that this motion to dismiss and quash was fully heard.

What is now the Shenandoah National Park is a body of land lying along the Blue Ridge Mountains north of Rockfish Gap; that land, to be used for Park purposes, was ceded by Virginia to the Federal Government and by it accepted.

The situation here, in some respects, differs from that provided for in Article 1, section 8, clause 17, of the Constitution of the United States, where provision is made for the Erection of Forts, etc. There jurisdiction is like that which obtained in the District of Columbia. When a State makes to the United States a gift of land for park purposes, it may attach such conditions to the gift as to it seems necessary and proper; and the United States, on its part, may accept such lands with conditions attached or reject the gift. But where national interests are involved, the taking may be as absolute as seems desirable. Virginia can not impose terms where maneuver grounds are taken over by the Army.

In James Stewart & Co. v. Sadrakula, 309 U.S. 94, 60 S.Ct. 431, 433, 84 L.Ed. 596, 127 A.L.R. 821, decided January 29, 1940, is this statement:

"It is now settled that the jurisdiction acquired from a State by the United States whether by consent to the purchase or by cession may be qualified in accordance with agreements reached by the respective governments. The Constitution does not command that every vestige of the laws of the former sovereignty must vanish. On the contrary its language has long been interpreted so as to permit the continuance until abrogated of those rules existing at thetime of the surrender of sovereignty which govern the rights of the occupants of the territory transferred.

"This assures that no area however small will be left without a developed legal system for private rights."

What conditions are attached to the gift of these Park lands? They are set out in the Acts of the General Assembly and in those of Congress.

By an Act of the General Assembly, 1928, p. 983, chapter 371, provision is made for the transfer of these Shenandoah National Park lands to the United States. The conditions under which this transfer was to be made are set out in section 7 of that Act, which reads:

"The United States of America is authorized to acquire by deed or conveyance pursuant to this act land or lands within the area specified and described in sections three (3) and four (4) of this act, and exclusive jurisdiction shall be and the same is hereby ceded to the United States of America over and within all the territory in the State of Virginia which is included within the area described in sections three (3) and four (4) of this act, and deeded and conveyed to it, pursuant to the terms and conditions of section six (6) of this act; saving, however, to the State of Virginia the right to serve civil or criminal process within the limits of the land or lands thus deeded or conveyed, in suits or prosecutions for or on account of rights acquired, obligations incurred, or crime committed in said State outside of said land or lands, and on account of rights acquired, obligations incurred, or crimes committed, on or within said lands, prior to the date of the giving or service of notice as hereinafter provided, of the assumption of police jurisdiction over such land or lands by the United States; and, saving further, to the said State, the right to tax sales of gasoline and other motor vehicle fuels and oil for use in motor vehicles, and to tax persons and corporations, their franchises and properties, on land or lands deeded or conveyed as aforesaid; and saving, also, to persons residing in or on any of the land or lands deeded or conveyed as aforesaid the right to vote at all elections within the county in which said land or lands are located, upon like terms and conditions and to the same extent as they would be entitled to vote in such county had not such lands been deeded or conveyed, as aforesaid, to the United States of America; provided, nevertheless, that such jurisdiction shall not vest in the United States of America unless and until it, through the proper officer or officers, notifies the governor and through him the State of Virginia, that the United States of America assumes police jurisdiction over the land or lands thus deeded...