Fowler v. Mosher

• Decision Date: 20 September 1888
• Citation: 7 S.E. 542,85 S.C. 421
• Parties: Fowler v. Mosher et al.
• Court: Virginia Supreme Court

7 S.E. 542

(85 S.C. 421)

Fowler

v.Mosher et al.

Supreme Court of Appeals of Virginia.

September 20, 1888.

1. Practice in Civil Cases—Service or Notice—Waiver.

Under Code Va. 1887, § 3207, providing that notices shall be served by delivering a copy to the person to be notified, or a member of his family above the age of 10 years, delivery of a copy to a mere boarder in such person's house, who is a stranger to his blood, is not sufficient; nor is the defect waived by appearing and contesting the validity of the service.

2. Same—Return—Service on Member op Family.

A return stating that the person to be notified was not at home is sufficient to authorize a service by delivery of a copy to a member of the family, within the requirement of Code Va. 1887, § 3207, authorizing such a service, where the person cannot be found at his usual place of abode.

3. Same—Hearing Demurrer at Special Term.

Under Code Va. 1887, § 3062, providing that, at a special term of court, any cause ready for hearing may, with the consent of the parties, be heard, the court cannot at such a term, without such consent, hear a demurrer to a bill, and dissolve an injunction.

Appeal from circuit court, Amherst county.

Bill by Fowler against Mosher and S. J. Hess. Demurrers to bill sustained, and complainant appeals.

Mr. Mtzpatriek and W. G. Loring, for appellant. R. A. Coghill, for appellees.

Hinton, J. The bill was filed in this case to enforce the specific execution of an alleged contract of purchase of an undivided moiety of a tract of land in Amherst county, and to enforce the judgment of the county court of Amherst, which had been entered in an action of unlawful detainer, brought by the appellee Mosher against the appellant Fowler; and the bill of the appellant prays that, in the event the court should decline to specifically execute the contract, that it will enforce the lien for the unpaid purchase money reserved in the deed from himself to the appellees. J. Hess, who had previously purchased the farm from him. Upon the presentation of this bill, on the 11th July, 1888, an injunction was awarded by the Honorable Charles P. Latham, judge of the corporation court of Lynchburg, restraining the sheriff of Amherst county, and all others, from executing the judgment of the county court of Amherst in the unlawful detainer suit mentioned above. On the 2d day of August, 1888, the defendants Mosher and Hess filed in the clerk's office of the circuit court of Amherst, where the bill had been filed, and to the judge of which court it was addressed, general demurrers to the whole bill, and a joint special demurrer to that portion of it which asked for specific execution of the alleged contract; and on the same day gave notice to plaintiff, Fowler, that they would, on the 8th day of August, 1888, that being the second day of a special term of Amherst circuit court, move said court to dissolve said order of injunction. This notice, it is claimed, was not properly served; but on the 8th August, 1888, the plaintiff appeared and moved for a continuance of the cause for reasons set out in his affidavit, which we do not deem it necessary to state; and also made an affidavit impeaching the validity of the sheriff's return These motions were overruled, and thereupon the court proceeded to hear the case upon the bill and exhibits, and the demurrers, general and special and made a decree dissolving the injunction, sustaining the demurrer to what is called "the first ground of complaint of the plaintiff's bill;" that is, to so much of the bill as seemed, in the opinion of the court, to entitle the plaintiff to an action at law for damages, but without prejudice to his rights in that behalf; and also sustaining the demurrer to that portion of the bill which asked for specific execution of the alleged contract of purchase; and overruled the demurrer to so much of the bill as asked for the enforcement of the lien for the unpaid installments of purchase money, in the event of the court's refusal to decree specific execution of the contract, to which we have before adverted.

From this decree the present appeal is taken; and from this statement of the case it will be seen that the first question to be determined by this court must be as to the sufficiency of the service of notice for the dissolution of the injunction, and the appointment of a receiver....