Fisher v. Crowley

Decision Date07 March 1905
Citation57 W.Va. 312
CourtWest Virginia Supreme Court
PartiesFisher, Sons & Company v. Crowley and Others.

1. Summons Defect The/rein.

A summons, commencing an action in a superior court of general jurisdiction, materially defective in respect to time or place of its return, to which objection has been taken in proper time and manner and preserved by exception, will be held void and quashed in a direct proceeding in the same action, to reverse for the error of the trial court in refusing to quash it. (p. 316.)


2. Defective Summons Amendment Thereto.

A summons, commencing-an action in a court of record cannot be amended in any substantial particular, unless the statutes of amendment authorize it, (p. 316.)

3. Defective Summons Not Waived by Plea to Merits, When.

A defect in such summons is not waived by pleading to the merits after the overruling of a motion to quash, to which an exception has been taken and made a part of the record, (pp. 318, 320.)

4. Defective Writ Appearance Thereto Becord.

It is not necessary for a defendant, in appearing in a court of record to quash a defective writ, commencing an action, to ' cause the record to recite that his appearance is for that purpose only, in order to avoid a waiver of defect in the jurisdiction of the court, In such case, whether an appearance is general or special is to be determined by the record as it stands at the time the motion is made, (p. 323.)

Appeal from Circuit Court, Cabell County.

Action by M. Fisher, Sons &: Co. against T. H. Crowley and others. Judgment for plaintiffs, and defendants bring error.


Wallace & Fitzpatrick, for plaintiffs in error.

Campbell, Holt & Duncan, and W. K. Cowden, for defendants in error.

poffenbarger, judge:

In an action of assumpsit brought in the circuit court of Cabell county, by M. Fisher, Sons & Co., against T. II. Crowley, B. L. Priddie and John J. Kearney, the summons, which was issued on the 25th of November, 1903, was made returnable "at rules to be held in the clerk's office of said court on the first Monday in December next." On the 4th day of April, 1904, the defendants appeared, and, after requiring security for costs from the plaintiffs, who were nonresidents, craved oyer of the writ, and, after it had been read to them, moved to quash the same. The motion was overruled, a plea of non-assumpsit tendered was rejected, for reasons which need not be stated, and judgment was rendered. Of the errors assigned, it is deemed unnecessary to notice any except the first one, which is founded upon the action of the court in overruling the motion to quash.

Section 1 of chapter 125 of the Code requires rules to be held in the clerk's office of every circuit court on the first Monday of every month, except when a term of the circuit court happens to commence on the first Monday in a month, or on certain other days mentioned in said section, and provides that under such conditions the rules shall be held on the last Monday in the next preceding' month. The day on which the summons in this case was made returnable was the first day of a term of court. Hence, the rules for that month were held on the last Monday in November. Section 2 of chapter 124 of the Code requires all process to be made returnable within ninety days, to the court on the first day of the term, or in the clerk's office to the first Monday in a month or to some rule day, unless it is otherwise provided. It is plain, therefore, that the summons could have been made returnable to the court on the day named in it as the return day thereof, but could not be made returnable to rules on that day because no rules were held, or could be held, at that time. Literal compliance with the mandate of the writ, to the officer as well as to the defendants, was impossible. Though returnable on a day which could have been made the time for its return, had it been made returnable to the proper proceedings or tribunal, namely, the court, the officer could not return it to the court, and the defendant could not appear to it in court, without departing from its terms, because it did not command such return and appearance. It commanded them, respectively, to return the writ, and appear, not in the court, but in the clerk's office, at a time at which no rules were held and, therefore, at which nothing could be done.

As section 2 of chapter 125 of the Code provides that rules held on the last Monday in a month shall be entered in the rule docket and endorsed on the declaration or bill, as if taken on the first Monday of the month to which they relate, the succeeding month, it is insisted that process can be made returnable to the first Monday in that month because it is, in law, a rule day. As this construction of section 2 would, at least, partially nullify the provision in section 1, to which reference has been made, and make conflict between other statutory provisions, it cannot be accepted. If process can be made returnable to that day as a rule day, any other proper proceedings at rules, such as the filing of pleadings, the giving of rules to plead, and the entry of conditional judgments and decrees nisi, may take place on the same day. If proceedings at rules may take place on, either the last Monday of the month preceding the term of court, or the first Monday of the succeeding month, at the election of the parties, it would be in their power to conduct all rule proceedings on the first Monday and the provision of section 1 of chapter 125 would become non-effective. A graver objection to this construction is that it would make the time of what may be termed the legal, as distinguished from the manual, return of process, which is an important event in legal proceedings, uncertain. Upon the return to rules, the plain till' may file his declaration or bill and have a conditional judgment or decree nisi. At the same time, the defendant is entitled to appear, and, if the plaintiff has filed his declaration or bill, to respond by proper pleadings to the merits, and, if not, to give a rule requiring the plaintiff to file his pleadings at the next rule day, on pain of being nonsuited in the event of his failure to comply with the rule. The construction suggested makes it impossible for the defendant to know with certainty the time at which these rights shall vest, respectively, in himself and the plaintiff. It is not to be assumed that the legislature intended to make him appear twice in answer to the summons in order to exercise his right to plead or obtain a rule requiring the plaintiff to plead, nor that he should be exposed to the dangers consequent upon uncertainty as to the time of appearance. If the process can be made returnable to the first Monday as a rule day, when shall the declaration be filed, on that day or in the preceding week? If, in the preceding week, it would be filed before the actual return of the process. If, on the day of the return, it would be filed at a time at which the statute impliedly says rules shall not be held, for it says that, under such conditions, they shall be held in the preceding week.

As the writ, in respect to its return day, is not in conformity with law, it is void, according to principles announced in Kyle v. Ford, 2 Rand, 1, a decision binding upon this Court, and Coda v. Thompson, 39 W. Va. 67. Kyle v. Ford holds that process returnable to a day which is not a return day is void. The statute under which that case arose required process to be made returnable to the court or to a previous rule day and the writ had been made returnable to a day which was the first day of a term of court and also a rule day, and was described in the writ as a rule day, just as in the summons in this case. The court, holding that it could be properly returnaable on that day to the court only, and not to rules, declared it void. See the similar case of Raub v. Otterback, 89 Va. 645. In Coda v. Thompson an attachment was made returnable more than ninety days after its date, contrary to the general statute above referred to and also to section 5 of chapter 106, which requires an attachment to be returnable to the next term of court. Other cases, declaring the statutory provisions relating to the return of process to be mandatory and holding process not conforming thereto void, are La veil v. Me Curdy, 77 Va. 673; Warren v. Saunders, 27 Grat. 259; Gas Co. v. Wheeling, 7 W. Va. 22. A summons not signed by the clerk is so fatally defective that it cannot be amended. Laidley v. Bright, 17 W. Va. 779, 791, 792; Hickman v. Larkey, 6 Grat. 210. Such is the conclusion usually expressed by the authorities. Camman v. Perrine, 9 N. J. L. 253; Seurer v. Horst, 31 Minn. 479; Roberts v. Allman, 106 N. C. 391; Rattan v. Stone, 4111. 540; Williamson y. McCormick, 126 Pa. St. 274.

The correctness of the main proposition asserted in these cases is verified by the common law text-writers and decisions. That which is incurable must be void. At common law defects of this kind could not be cured by amendment, and our statute does not authorize an amendment in such case. Though by the common law, some writs were amendable, the power of amendment only existed as to slight and formal defects. Even in this respect, some writs were not amendable by the common law courts. There were two classes of writs, the original writs issuing out of the court of chancery and returnable into the common law courts, and judicial writs, issuing out of, as well as returnable to, the common law courts. The former were not the writs of the law courts, were not issued by them, were in no manner within their control or power, and were, therefore, not amendable by them, however slight the defect. Blackamore's Case, 8 Coke Rep. 156a; 2 Eng. Rul. Cas. 767. By the Act of 8 Hen.

VI. Cap. 12, the law courts were empowered to amend in certain respects the original writ, but only (1) as to legal form; (2) as to one word "which is not any latin for...

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