Dillard v. Thornton
| Decision Date | 22 November 1877 |
| Citation | 70 Va. 392 |
| Parties | DILLARD v. THORNTON. |
| Court | Virginia Supreme Court |
Absent, Moncure, P.
On September 30, 1867, a summons in debt on a single bill was sued out, returnable to the succeeding October rules, to which rules it was returned executed on the 3d of October and the plaintiff filed his declaration, and the defendant not appearing, a conditional judgment was entered against him, which was confirmed at the succeeding rules held October 28, 1867; and final judgment was entered against the defendant on the last day of the succeeding term of the circuit court, which was October 31, 1867, which was less than one month after the service of process on the defendant--HELD:
1. The entry of final judgment against the defendant within one month after he was served with process was erroneous. Code 1873, ch. 166, § 6.
2. According to the true construction of our statutes, where less than one month has elapsed between the service of process and the end of the succeeding term, the conditional judgment will become final at the term next succeeding the expiration of one month after the service of process.
3. The aforesaid judgment of October 31, 1867, having been set aside in the court below on the motion of the defendant, the court should have reinstated the cause upon the docket, with liberty to the defendant to plead, and to set aside the office judgment upon the usual terms, the said judgment to become final in case of his failure to set it aside.
4. Where under such a judgment a fi. fa. is issued, and there is a proceeding by suggestion against persons indebted to the defendant, such defendant may, upon proper notice appear in such proceeding and have the judgment vacated, and all proceedings thereunder quashed.
5. A notice to reverse or correct a judgment by default, or to quash an execution, need not be in writing. All that is requisite is, that there should be reasonable notice.
6. It is too late to make the objection in the appellate court that the notice was insufficient, when the parties appeared and made no such objection in the court below.
7. The court below having vacated the judgment of October 31, 1867 upon a motion of the defendant, where all parties appeared by their counsel, it had no jurisdiction to correct its action in that regard under § 5, ch. 177 of Code of 1873; but the proper remedy was by appeal.
This was an appeal by W. H. Dillard from a judgment of the circuit court of Sussex, in a case in which he was plaintiff and R. E. Thornton was defendant. The case is fully stated by Judge Burks in his opinion.
Jones & Bouldin, for the appellant.
No counsel for the appellee.
On the 30th day of September, 1867, W. H. Dillard sued out of the clerk's office of the circuit court of Sussex county a summons in debt on a single bill against R. E. Thornton, returnable to the next succeeding rules the first Monday in October. The summons was duly executed on the 3d of October and returned, and the plaintiff filed his declaration at the return day. The defendant not appearing, a conditional judgment was entered against him, which was confirmed at the succeeding rules held on the last Monday in October, because the next term of the circuit court of Sussex commenced on the 29th day of October, which was the Tuesday preceding the first Monday in November, and final judgment was entered against the defendant as of the 31st day of October, which, it is supposed, was the last day of the term of said circuit court, although it is not so stated in the record.
On this judgment a writ of fieri facias was issued on the 4th day of November, 1867, under which there was a levy by the sheriff and the judgment partly satisfied. Several other executions were afterwards issued from time to time, which proved fruitless. The last was issued on the 12th day of October, 1871, and at the same time, upon a suggestion by the plaintiff, that by reason of the lien of his execution, there was a liability on certain parties named, a summons was issued against them to answer the suggestion at the next term of the court. The summons was returned duly executed, and at the then next term, to-wit: on the 25th day of October, 1871, on the motion of Thornton, the court annulled the judgment of the 31st of October, 1867, and quashed the executions and all the proceedings had under the said judgment.
At the term of the court held in April, 1872, Dillard, on proof of notice duly given, made a motion to correct the judgment rendered on the 25th of October, 1871, which motion was overruled, and he excepted.
A writ of error from this court was allowed Dillard to the judgment of the 25th of October, 1871.
The court is of opinion that the judgment aforesaid rendered as of the 31st day of October, 1867, is erroneous.
Among the provisions of chapter 167, Code of 1873, are the following:
Under and by virtue of these two sections taken alone, the judgment entered in the office on the last Monday in October, 1867, would have become a final judgment as of the last day of the then next term of the court, to-wit: the 31st day of October, 1867. The summons was in legal form, duly executed and properly returned. The orders entered at rules and all the proceedings in the office were regular, and had terminated in the confirmation of the conditional judgment before the commencement of the term. It was the duty of the clerk to put the cause on the court docket for the said term. Code of 1873, ch. 173, § 1.
But it is further provided by the Code, ch. 166, § 6, last clause that " no judgment by default, on a scire facias or summons, shall be valid, if it become final within one month after the service of such process." The preceding clause of the section provides that a summons or scire facias may be served as a notice is served, that is by delivery of a copy to...
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Armstrong v. Jones, 10624
...in a case by an answer or other pleading of the defendant, a judgment by default cannot be entered against the defendant. Dillard v. Thornton, 29 Grat. 392, 70 Va. 392; Salzer v. Schwartz, 88 W.Va. 569, 107 S.E. 298; Second Nat. Bank of Morgantown v. Ralphsnyder, 54 W.Va. 231, pt. 1 syl., 4......