Grinrod Process Corp. v. Rothwell

• Decision Date: 15 September 1936
• Docket Number: (No. 8285)
• Parties: Grinrod Process Corporation v. J. M. Rothwell
• Court: West Virginia Supreme Court

117 W.Va. 709

Grinrod Process Corporation

v.J. M. Rothwell

(No. 8285)

Supreme Court of Appeals of West Virginia.

Submitted September 8, 1936.

Decided September 15, 1936.

1. Judgment

The judgment of a court of a sister state is a contract within the meaning of Code, 56-2-6, authorizing notice of motion for judgment on contract obligations.

2. Judgment

The judgment of a court of record of a sister state, which court has jurisdiction of the subject matter and potential jurisdiction of the person, will be given full faith and credit in an action brought thereon in this state, if, when the judgment was rendered, there was active jurisdiction of the person; but where the latter jurisdiction was lacking, the judgment will not be accredited and vitalized in this state.

Error to Circuit Court, Berkeley County.

Proceeding by notice of motion for judgment by the Grinrod Process Corporation against J. M. Rothwell. Judgment for plaintiff by default, and to review an order refusing to set aside the judgment, defendant brings error.

Reversed and rendered.

Litz and Kenna, Judges, dissenting.

J. O. Henson and Stephen Ailes, for plaintiff in error.

James S. Easley and Glenn W. Ruebush, for defendant in error.

Maxwell, Judge:

This is a proceeding by notice of motion for judgment brought by Grinrod Process Corporation against J. M. Rothwell in the Circuit Court of Berkeley County upon a judgment rendered in favor of said corporation against Rothwell in the Circuit Court of Rockingham County, Virginia, June 17, 1932, in the amount of $1747.02.

The notice was returnable May 22, 1935. On that day, the defendant appeared by counsel and filed his written demurrer to the notice, the principal ground assigned being that a judgment is not a contract within the meaning of the West Virginia statute authorizing proceedings upon notice of motion and that therefore this proceeding must fail. On June 1, 1935, the demurrer to the notice was overruled, and the said defendant not pleading further at that time, a judgment by default was entered. The order of judgment recites that the defendant moved the court for further time to enable him to ascertain as to the regularity of the judgment sued on, which motion the plaintiff opposed. The court refused to grant further time and rendered judgment. The defendant excepted to the court's action.

On June 28, 1935, the affidavit of J. 0. Henson, attorney for Rothwell, was filed in open court at the same term at which the judgment had been rendered. The affidavit states that at the time of the entry of the judgment, counsel for the plaintiff agreed with affiant, in event it was subsequently ascertained any irregularity existed in the proceedings in the Circuit Court of Rockingham County, Virginia, in entering the judgment sued on, that the judgment in the Circuit Court of Berkeley County might be set aside and such irregularity passed upon by the court. The affidavit goes on to recite that the defendant now produces in court a complete record of the Virginia case, properly certified, and that therefrom it appears that process therein was served in Albemarle County, although the proceeding was pending in Rockingham County. The affiant states that he is familiar, as the agent of Rothwell, with all the facts concerning the claim of Grinrod Process Corporation against the defendant, and that, as affiant verily believes, there is no sum justly due from the defendant to the plaintiff, upon the matters set forth in the notice of motion.

The papers filed with the affidavit disclose that the principal office of the plaintiff corporation is located at Harrisonburg, Rockingham County, Virginia; that the process in the Virginia proceeding (statutory motion for judgment) was served on Rothwell in Albemarle County, Virginia, and on Milk Industries, Inc., a corporation, in the same county by delivering a copy of the notice to Rothwell, president of said corporation, that being the county wherein he resided.

Upon the showing made by the affidavit and the papers filed therewith, the defendant moved the Circuit Court of Berkeley County to set aside the judgment which had been rendered the 31st of May, 1935, and this, by order of June 28, 1935, the court refused to do. It is to the latter order that this writ of error is prosecuted. There are but two questions involved: First. Is the judgment of a sister state a contract upon which notice of motion for judgment may be based in West Virginia under Code, 56-2-6?

Second. Was the service of process in the Virginia proceeding sufficient, under the Virginia decisions, to give the Circuit Court of Rockingham County, Virginia, jurisdiction of the person of J. M. Rothwell, or is the judgment rendered against him in that proceeding void for lack of such jurisdiction?

There is some confusion in the authorities whether the judgment of a court of law is to be regarded as a contract. The matter seems to depend largely on the connection in which the judgment is being considered. As far as the law in this state is concerned, it seems to be established in our case of Alar stiller V. Ward, 52 W. Va. 74, 43 S. E. 178, that for the purpose of forming the basis of a judgment here, the judgment of a sister state is to be regarded as a contract.

We are, of course, bound by the law of the State of Virginia as to whether the Virginia Court, in the action brought in Rockingham County, obtained jurisdiction of the person of Rothwell so that it could render a personal judgment against him. The plaintiff relies on the case of Pereira, Executrix v. Davis Financial Agency, Inc., et al., 146 Va. 215, 135 S. E. 823. In that case, the plaintiff brought notice of motion in the Circuit Court of Albemarle County, Virginia, upon two promissory notes made by Davis Financial Agency, Inc., and endorsed by John S. Davis. As here, the corporation had its principal office in the county where the action was brought. Process was served both as to John S. Davis, individually, and as to the corporation, in another county in the State of Virginia, to-wit, Fluvanna. Also, as in the present case, the county in which the notice was served was the county in which the individual defendant resided. The Supreme Court of Appeals of the State of Virginia held that inasmuch as the action was brought in the county wherein the corporate defendant had its principal office, the venue was correctly laid under sections 6046 and 6049, as well as under section 6050 of the Virginia Code, as to the corporate defendant, and, being correctly laid as to that defendant, the venue was necessarily proper as to the individual defendant also.

In the Pereira case, the action was based on promissory notes signed by the corporate defendant and endorsed by the individual defendant. In the case at bar, the action in Rockingham County, Virginia, was upon an open account for the sale of goods to the individual defendant, the indebtedness, at a date later than the sale to the individual defendant, having been assumed by the corporate defendant and the goods taken over by it. It is urged that because of this difference, the Pereira case is not controlling authority in the instant case.

It is to be noted that in the Virginia proceeding wherein there was rendered the judgment herein relied on, the court's order is entirely silent as to the corporate defendant. The judgment was rendered against Rothwell alone. Just why that course was taken, we are not advised. It is somewhat startling that, if the corporate defendant was...