Hall v. Ocean Acc. & Guarantee Corp.
| Decision Date | 26 March 1940 |
| Docket Number | 9016. |
| Citation | 9 S.E.2d 45,122 W.Va. 188 |
| Parties | HALL v. OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited. |
| Court | West Virginia Supreme Court |
Rehearing Denied June 10, 1940.
Syllabus by the Court.
Agreement of insurer under public liability policy to pay lawful damages on behalf of owner of truck constituted a contract for the benefit of one who was fatally injured when struck by truck, and could be enforced by notice of motion. A summons which was issued after and served after the return day was a nullity, and where that fact appeared on the summons itself, motion to quash should have been sustained. Code 1931, 56-3-11.
The fact that summons on one defendant was void did not render void an alias summons on another defendant. Code 1931 56-3-21.
A defendant in any suit or action which has been instituted in a court of general jurisdiction and on whom process summoning him to answer appears to have been served cannot take advantage of any defect in the writ or return, if the defect does not appear on the face of the record, unless the defect be pleaded in abatement. Code 1931, 56-4-30. Though general venue statute provides that an action "may" be brought in the county where the defendant resides, the action "must" be brought there even where the cause of action arises in a different county, unless the defendant is sued and served with process therein, as provided by the statute enumerating the instances in which an action may be brought in the county where the cause of action arises. Code 1931, 56-1-1, 2.
An alias summons which showed that defendant was served in a county other than the county where the cause of action arose and where the action was brought was not void on ground that a presumption arose that defendant resided in county where he was served, since such presumption did not arise. Code 1931 56-1-1, 2, 56-3-5.
The right of a defendant touching the county of trial is not primarily jurisdictional, but is a personal privilege which may be waived, and where the court has jurisdiction of the subject matter, the failure of the defendant to claim the privilege in a proper manner, which is by plea in abatement implies a "waiver." Code 1931, 56-4-30.
On motion for judgment proceeding against insurer which had issued a policy of public liability insurance to judgment debtor, allowance of interest on the judgment against the judgment debtor, in the judgment against the insurer, was warranted by statute dealing with interest on judgment or decree. Code 1931, 56-6-31.
Under Code, 56-4-30, a defendant in any suit or action, instituted in a court of general jurisdiction, on whom process summoning him to answer appears to have been served, shall not take advantage of any defect in the writ or return, where such defect does not appear on the face of the record, unless such defect be pleaded in abatement.
R. E. Horan and B. J. Pettigrew, both of Charleston, for plaintiff in error.
G. D. Herold, of Summersville, and W. L. Lee, of Fayetteville, for defendant in error.
RILEY, President.
This is a motion for judgment proceeding instituted in the circuit court of Nicholas County by James E. Hall, administrator of the estate of Lutiaschie Wilkinson, deceased, against The Ocean Accident & Guarantee Corporation, Ltd., on a policy of public liability insurance. Defendant prosecutes error to a judgment in plaintiff's favor based upon a jury verdict.
A truck of Belmont Distributors, Inc. (hereinafter called Belmont), driven by an employee, Frank Wardell, struck and killed Lutiaschie Wilkinson in Nicholas County. An action was brought in that county by J. E. Hall, as her administrator, against Belmont and Wardell to recover damages for her alleged wrongful death. A summons in that action, issued Tuesday, March 8, 1938, returnable at Rules to be held on the first Monday in March, was served in Nicholas County on H. E. Hamilton, president of Belmont. This summons was not served on Wardell. A summons styled "alias summons" was also issued in that action March 22, directed to the sheriff of Harrison County, returnable at April Rules, and was served on Wardell in Harrison County March 24. At the trial, Belmont and Wardell each appeared specially, and severally craved oyer of the two summonses and moved to quash them; Belmont because the summons served on it "was issued on Tuesday, the 8th day of March, 1938, returnable to the first Monday (March 7, 1938,) in March, 1938, and that therefore said summons is void"; Wardell because the summons of March 22 was served on him in Harrison County "and that the Circuit Court of Nicholas County has no jurisdiction upon said defendant." Their several demurrers and motions were overruled and they excepted. Then they pleaded the general issue, the case was tried, and a verdict and judgment against them of $10,000 resulted. The judgment became final. An execution directed to the sheriff of Nicholas County was returned "No property found." Thereupon, this proceeding, by notice of motion for judgment, was brought by Hall in Nicholas County against The Ocean Accident & Guarantee Corporation, Ltd. (hereinafter called defendant), which had issued to Belmont an insurance policy agreeing to pay on behalf of the "insured"--and by express definition in the policy the word included Wardell--whatever sum the insured should become obligated by law to pay for damages by reason of personal injuries inflicted. Hall recovered a judgment, and defendant prosecutes this writ of error.
Counsel for defendant question the right of Hall to proceed here by notice of motion for judgment. The agreement of the insurer to pay lawful damages on behalf of the insured constituted a contract for the benefit of the person injured. We recognized that such a contract could be enforced by notice of motion in Hawkins v. Glen Falls Ins. Co., 114 W.Va. 287, 171 S.E. 645.
The main contention advanced on behalf of defendant is that the judgment against Belmont and Wardell, upon which the instant proceeding is based, was void. Code, 56-3-11, provides that process "may be executed on or before the return day thereof." The summons on Belmont, issued after and served after the return day, was a nullity; and since this appears on the summons itself, Belmont's motion to quash should have been sustained. So we are of opinion that the contention is well taken as to the judgment against Belmont.
Counsel say as to Wardell, first, that the summons on Belmont being void, the alias summons on Wardell would also be void citing Code, 56-3-21, and Gorman v. Steed, 1 W.Va. 1, 14; and, second, that the service of process on Wardell in Harrison County "raises at least a strong presumption" that he resided there. The statute cited provides that an alias process may issue if, at the return day of an original process, the latter be returned unexecuted. The statute now is the same as the Virginia Code of 1860, Ch. 170, Sec. 3. Referring thereto, this court in the case cited (1 W.Va. page 14) said that as an alias was "but the continuation of the original, and dependent upon it, it must stand or fall with it ***". No authority was referred to and the saying could not have been meant to be taken literally. If so, no mistake or error in an original process could ever be corrected. The essential reason for employing a second process is because the original has failed its purpose. It matters not whether that failure is due to defective form or service. Pacific Mutual Life Ins. Co. v. Mansur, 136 Mo.App. 726, 118 S.W. 1193, 1194. Moreover, a court has inherent power, in addition to that named in the statute, to have such further process issued as may be requisite to bring the parties properly before it. United States Blowpipe Co. v. Spencer, 46 W.Va. 590, 594, 33 S.E. 342. We are therefore of opinion that the invalidity of the first process did not affect the second, and further that since the first was a nullity, the second may be treated as an original process.
Code 56-4-30, makes a sharp distinction in the practice regarding process which is merely defective, and process which is void. Under that statute, a defendant can take advantage of a defect in the writ or return only by plea in abatement; but the statute preserves his common-law right to move to quash a void process. Upon the motion, however, the court will consider only the record itself. Ruffner v. Cunard Steamship Co., 94 W.Va. 211, 217, 218, 118 S.E. 157; 30 A.L.R. 262n, 279n; Looney v. West Virginia Hardwood Co., 113 W.Va. 385, 168 S.E. 138. When Wardell made his motion to quash, the record consisted of the declaration and the first and second summonses. The declaration pleaded a cause of action arising in Nicholas County. Upon the declaration, venue lay in that county. Neither the declaration nor the summonses mentioned the residence of Wardell. Although he testified in the instant proceeding that he resided in Harrison County at the time the alias summons was served upon him, such fact cannot now be considered, because it was not in the record when his motion to quash was made. So the motion depended upon his one proposition, that because the summons showed service on him in Harrison County, the service was fundamentally void. While our statute Code,...
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