C. & 0. Ry. Co v. Wright, et al

Citation50 W.Va. 653
CourtSupreme Court of West Virginia
Decision Date01 March 1902
PartiesC. & 0. Ry. Co v. Wright, et al

1. Justice's Summons Defective Return Appearance,

If a defendant to a suit instituted before a justice after making a specific appearance for the purpose of quashing a fatally defective return of service of summons, enters a general appearance to the action, proceeds with the trial of the case and the presentation of his defence and on judgment being rendered against him, appeals to the circuit court, he thereby cures the defects in the service and abandons his specific appearance and submits himself to the jurisdiction of the justice and the court, and after final judgment rendered against him by such court he cannot prohibit the collection of the same because of the defective return of the summons. (pp. 654, 655)

From the Circuit Court, Greenbrier County. The Chesapeake & Ohio R. R. Co. filed its petition in this Court for a writ of prohibition against J. M. McWhorter, Judge, and A. T. Wright.

Writ Denied.

Simms & Enslow, for petitioners.

John W. Arbuckle, for respondents.

Dent, President:

This is an application of the Chesapeake & Ohio Railroad Company for a writ of prohibition against J. M. McWhorter, Judge of the circuit court of Greenbrier County, to inhibit the enforcement of a judgment rendered by said court in favor of A. T. Wright on the 20th day of November, 1901, for the sum of fifty dollars, interest and costs.

The proceedings in the case are as follows: On the 2d day of September, 1901, summons was issued in favor of said Wright against petitioner by P. H. McGrath, jusfice of the peace, returnable the 9th day of September, 1901. On the return day the petitioner appeared specially for the purpose and moved to quash the return of service as fatally defective. The justice overruled the motion and the case was continued until September 16, 1901. On the last mentioned day the parties appeared, a trial was had and judgment was rendered in favor of the defendant. Plaintiff gave the defendant (petitioner) a written notice that on the 21st day of September, 1901, he would move the justice to set aside the judgment and grant him a' new trial. On the day named defendant not appearing, the justice set aside the judgment and set the trial for September 27, 1901. On this last mentioned day both parties appeared, a new trial was had and judgment was rendered in favor of plaintiff for the sum of fifty dollars. The defendant forthwith appealed to the circuit court. It then renewed its motion to quash the officer's return on the original summons. The motion was overruled and on trial de novo before a jury and verdict obtained, judgment was again rendered in favor of the plaintiff for the sum of fifty dollars. The defendant then applied for a writ of prohibition to such judgment for the reason that the officer's return is invalid in that it does not show that the alleged agent of the defendant on whom service was purported to have been had, was at the time he was served a resident of Greenbrier County, West Virginia, and in the actual employ of the company at the time of the service as required in section 38, chapter 50, Code. This undoubtedly renders the service invalid, and a judgment by default on it would be void. Taylor v. Ohio River Ry. Co., 35 W. Va. 328; Ry. Co. v. Ryan, 31 W. Va. 364 (6 S. E. R. 924); Laync v. Ohio River Ry. Co., 35 W. Va. 438. There being no legal service of summons, the court would be without jurisdiction of either the person or subject matter and prohibition would lie as a matter of right. Yates v. County Court, 47 W.

Va. 376 (35 S. E. 24): Johnston v. Hunter,-Staunton

Belmont Co. v. Case et al, 47 W. Va. 779 (35 S. E. 851)." After, however, the defendant had appeared specially and its motion had been overruled, it appeared generally and joined in a continuance and on trial obtained a judgment in its favor. This judgment was set aside and on a retrial to which it appeared judgment was rendered against it. It then appealed to the circuit court. Some authorities hold that a general appearance after special appearance does not waive the defects in the service of process. 2 En. Plead. & Prac. 630. While a considerable array of authorities hold that when a defendant appears and objects to jurisdiction and his objection is overruled, he must then elect either to stand upon his objections or to go into the merits. Going into the merits waives his exception to the service of process. 2 En. Plead. & Prac. 631.

The latter rule is founded on justice...

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