Fulton v. Ramsey

• Decision Date: 29 March 1910
• Parties: FULTON v. RAMSEY et al.
• Court: West Virginia Supreme Court

68 S.E. 381

67 W.Va. 321

FULTON v. RAMSEY et al.

Supreme Court of Appeals of West Virginia.

March 29, 1910

Rehearing Denied June 11, 1910.

Syllabus by the Court.

Though an appearance in a cause, for any purpose other than to take advantage of defective execution or nonexecution of process constitutes a waiver of defects in the service of process the purpose of such appearance must bear some substantial relation to the cause. In other words, it must be a purpose within the cause, not merely collateral thereto.

A mere inquiry, as to whether a continuance can be taken, without waiver of service, or offer to move for a continuance provided it can be done without such waiver, does not amount to a general appearance.

A "general appearance" must be express or arise by implication from the defendant's seeking, taking, or agreeing to some step or proceeding in the cause beneficial to himself or detrimental to the plaintiff, other than one contesting the jurisdiction only.

(Additional Syllabus by Editorial Staff.)

Where no plea, demurrer, or answer is filed, and no resistance made by defendants to entry of the decree, nor any facts introduced by them not alleged in the bill, the decree is upon the bill taken for confessed, if there was an appearance, and the court could correct any error in it upon motion, under the express provisions of Code 1906, § 4036, notwithstanding the expiration of the term at which it was entered.

Appeal from Circuit Court, Braxton County.

Action by Elwood D. Fulton against Joseph Ramsey, Jr., and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Brannon and Williams, JJ., dissenting.

W. E. Haymond, for appellant.

Morrison & Rider, Lawrence Greer, Appleton D. Palmer, Benj. A. Richmond, and F. C. Nicodemus, Jr., for appellees.

POFFENBARGER J.

The sole question in this cause, namely, whether Joseph Ramsey, Jr., George J. Gould, and William E. Guy, nonresident defendants, proceeded against by order of publication, appeared herein, in the court below, by attorneys, so as to enable that court to render a personal decree against them, grows out of the operations of what is styled in an agreement, and popularly known, as "The Little Kanawha Syndicate," which agreement is dated December 2, 1901, and was signed by said Ramsey, Gould, Guy, and others. That syndicate seems to have been formed for the purpose of purchasing the Little Kanawha Railroad, large areas of coal lands and other properties in this state, and extending said railroad eastward to Elkins, for connection with the West Virginia Central Railroad, owned by Mr. Gould and his associates, and westward so as to connect with the Wabash Railroad, also owned by them; all with the view of giving said last-mentioned road an outlet to the Atlantic seaboard, developing the coal and timber lands along the connecting lines, and securing traffic for said railroad properties. By the terms of that contract, Ramsey, Gould, and Guy were made syndicate managers, with power to take the title to all syndicate property in their names and make binding contracts concerning the same, all other parties thereto being mere subscribers, without power of management or control. In anticipation of the launching of this enterprise, Mr. Edward D. Fulton had acquired an option on the Little Kanawha Railroad as well as the title to, and options upon, large areas of coal and coal lands and other property in the counties of Braxton, Gilmer, and Lewis. Under certain agreements, and with intent to dispose of the same to the syndicate, he assigned the option on the railroad, at the option price, and assigned his coal and coal land options, and conveyed his coal and coal lands, at certain prices named in the assignments and deeds, to the St. Louis Union Trust Company, to hold as trustee for the syndicate. For some reason, the syndicate concluded to abandon its plan and sell all its property. Accordingly, it failed to carry out its contemplated arrangements with Fulton, and he brought this suit, in the circuit court of Braxton county, to compel specific performance of his alleged contract with the syndicate, claiming the right to compel its managers to accept a conveyance of 17,256.19 acres of land and a large purchase-money liability in his favor. An attachment was sued out on the ground of nonresidence of the defendants and levied on the land, so conveyed to the St. Louis Union Trust Company.

On the 1st day of December, 1908, the following order, relied upon by Fulton as showing a general appearance, was entered: "This day R. W. McMichael and John B. Morrison, attorneys practicing in this court, appeared and asked the court to permit them to appear specially for Joseph Ramsey, Jr., George J. Gould, and William E. Guy, as managers of the Little Kanawha Syndicate, and ask a continuance of this cause for thirty or sixty days to enable them to prepare their defense, or to determine whether they would desire to appear generally, and stating that they did not desire to appear generally for said parties at this time, but that they desired to move the court to continue the cause without appearance other than specially for the purposes of the continuance. The plaintiff, by his counsel, resisted the said motion to continue the hearing, and thereupon said counsel for said defendants Ramsey, Gould, and Guy announced that it was their desire to withdraw and not appear to the case, and thereupon counsel for plaintiff, and while said counsel for defendants were present, asked that the cause be submitted for hearing and accordingly the said cause was submitted for hearing." On the next day, a decree was entered, reciting service of process upon certain defendants and orders of publication as to Ramsey, Gould, Guy, and others, nonresidents, and the order of attachment and orders of publication thereon. By it, the amount of the plaintiff's claim and the lands and other property were ascertained, and it was ordered that unless Ramsey, Gould, and Guy, or some one for them, should pay the plaintiff the sum ($367,266.18) within 60 days, a special commissioner, appointed for the purpose, should sell all of the attached coal and coal lands, or enough thereof to pay said debt, interest, and cost. This was not a personal decree. On the 18th day of March, 1909, the plaintiff again appeared and filed a deed, executed by himself and his wife, conveying the lands in question to the St. Louis Union Trust Company, as and for a tender of conveyance to the Little Kanawha Syndicate and its managers, and, deeming the order entered on the 1st day of December, 1908, sufficient to establish submission of Ramsey, Gould, and Guy to the jurisdiction of the court, by appearance, he asked a personal decree against them for the sum of $371,922.86, the amount formerly ascertained and interest thereon, and the court entered it. On the 18th day of May, 1909, said defendants filed a petition, praying vacation of this decree, as one entered upon a bill taken for confessed, which petition was accompanied by affidavits, showing that McMichael and Morrison had never been authorized to enter a general appearance for them, and that said attorneys had had no intention of doing so. On reconsideration of the order of December 1, 1908, the court set aside said decree of March 18, 1909, and, from this decree, Fulton has appealed.

No plea, demurrer or answer having been filed, nor any resistance made by the defendants to the entry of the decree, nor any facts introduced by them, not alleged in the bill, the decree of March 18, 1909, was, in fact and law, as well as by profession, a decree upon the bill taken for confessed, if there was an appearance; and the court could correct any error in it, upon motion, under section 5 of chapter 134 of the Code of 1906, notwithstanding the expiration of the term at which it had been entered. Watson v. Wigginton, 28 W.Va. 533; Steenrod v. Railroad Co., 25 W.Va. 133; Bock v. Bock, 24 W.Va. 586; Hunter v. Kendedy, 20 W.Va. 343.

This being true, the inquiries are whether there was an appearance in the cause, not merely in the court, for any purpose, and, if so, a general appearance, or one that must be deemed and regarded as a general appearance, notwithstanding the expressed desire that it be treated and held to be special, or one for a certain limited purpose and no other, and, if an appearance in the cause, whether it bound the defendants. The petition sought vacation of the decree upon the following grounds: (1) That the order entered on December 1, 1908, does not show a general appearance; and (2) that the attorneys McMichael and Morrison had no authority to enter such an appearance. It is accompanied by affidavits, showing not only want of authority in the attorneys to enter the appearance, but also the details of the transaction of December 1, 1908, substantially recorded in the order. Counteraffidavits were filed by the plaintiff, somewhat variant as to these details, from the statements in the affidavits, filed by the defendant.

Under the impression that a false recital of appearance can be reached only by bill in equity or a similar proceeding, the court below disregarded the affidavits and dealt only with interpretation of the order, reaching the conclusion that it did not show an appearance in the cause. As we concur in that conclusion, we deem it unnecessary to enter upon any inquiry as to whether the affidavits, in so far as they show details of the transaction of December 1, 1908, not entered upon the record, might have been considered. If the recitals of the order can be contradicted or added to, we suggest, but do not decide, that a motion, under section 1 of chapter 134 of the Code of 1906, might be as available as a bill in equity. If such an error...