Danser v. Mallonee

• Decision Date: 26 October 1915
• Docket Number: (No. 2752.)
• Citation: 86 S.E. 895
• Parties: DANSER. v. MALLONEE.
• Court: West Virginia Supreme Court

86 S.E. 895

DANSER.

v.MALLONEE.

(No. 2752.)

Supreme Court of Appeals of West Virginia.

Oct. 26, 1915.

(Syllabus by the Court.)

Error to Circuit Court, Taylor County.

Action by Elijah Danser against Estella Mallonee. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

Warder & Robinson, of Grafton, for plaintiff in error.

W. P. Samples, of Grafton, for defendant in error.

MILLER, J. This action was begun against defendant, a non-resident, by attachment and service of process by publication. Defendant having thereafter appeared specially for that purpose the court on her motion quashed the attachment and the order of publication against her. Thereupon instead of withdrawing from the case and the further jurisdiction of the court, defendant's counsel moved the court to dismiss the case from the docket, which motion the court overruled, assigning, in its order, as the only ground therefor, that defendant had taken depositions in the case, on notice to plaintiff, which had been returned and endorsed filed by the clerk on January 24, 1913.

The first point of error made is that the court erred in overruling defendant's motion to dismiss the case from the docket. The only argument offered against this ruling is thai the reason given by the court for its action is not a good one, namely, that defendant had before appearance in the case taken and filed depositions. If the judgment was right for other reasons it is immaterial whether the reason assigned by the court is a good one or not Our judgment is that the motion was properly overruled, because after the court quashed theattachment and the order of publication against defendant, plaintiff had the undoubted right to retain the case on the docket for new process. To have dismissed the action from the docket without according to him this right would have been error. Park L. & I. Co. v. Lane, 106 Va. 304, 308, 55 S. E. 690; Goolsby, etc., v. St John, 25 Grat. (Va.) 146, 160. According to these decisions, though the original attachment and the return on the original process to answer the action may have been properly quashed, plaintiff was entitled to retain the action on the docket for new process and attachment, and it would have been error for the court to have denied him that right. See section 1, chapter 106, Code 1913 (sec. 4455). This case is not like a suit in equity on a claim not due, and when jurisdiction in equity depends solely upon the validity of the attachment. In such cases, according to our decisions, the suit falls with the attachment and the bill is properly dismissed. Miller v. Zeigler, 44 W. Va. 484, 489, 29 S. E. 981, 67 Am. St. Rep. 777; Prye v. Miley, 54 W. Va. 324, 46 S. E. 135.

The question then is did defendant submit herself to the jurisdiction of the court by entering her motion to dismiss the case from the docket? We think she did. Our decisions say that appearance by defendant for any other purpose than to take advantage of the defective execution or non-execution of the process against him amounts to a general appearance, and waiver of process. 1 Ency. Dig. Va. & W. Va. Rep. 674 et seq. Our conclusion is that no error was committed in denying defendant's motion to dismiss. Franklin v. Lumber Co., 66 W. Va. 164, 66 S. E. 225; Grubb v. Starkey, 90 Va. 831, 20 S. E. 784; Order of United Commercial Travelers v. Bell, 184 Fed. 298, 106 C. C. A. 440; Sampson v. Northwestern Nat. Life Insurance Co., 85 Neb. 319, 123 N. W. 302.

The next point of error made by defendant is that the court erroneously overruled her demurrer to the declaration and each count thereof. The declaration consists of the common counts of indebitatus assumpsit, and a special count counting upon an alleged assignment by one W. P. Samples to the plaintiff of an account for work and services rendered by Samples to the defendant. The point made against the first or common indebitatus assumpsit counts is, that it is...