Hinton v. Norfolk At W. Ry. Co

• Decision Date: 15 November 1923
• Parties: HINTON . v. NORFOLK At W. RY. CO.
• Court: Virginia Supreme Court

120 S.E. 135

HINTON .

v.NORFOLK At W. RY. CO.

Supreme Court of Appeals of Virginia.

Nov. 15, 1923.

Appeal from Circuit Court, Page County.

Action by John E. Hinton, by his next friend, against the Norfolk & Western Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Robert F. Leedy, of Luray, and Chas. A. Hammer, of Harrisonburg, for plaintiff in error.

F. M. Rivinus, of Philadelphia, Pa., Wm. F. Keyser, of Luray, and John T. Harris, of Harrisonburg, for defendant in error.

PRENTIS, J. [1] The plaintiff, an infant, suing by Benjamin H. Higgs, his next friend, complains of a judgment in favor of the defendant company upon a plea which shows these uncontroverted facts:

That this plaintiff, by his mother as next friend, had previously, on February 1, 1918, sued the defendant in the same court upon the same cause of action—that is, for a personal injury alleged to have been due to the negligence of the defendant, and claimed therein $125 damages therefor, which action was terminated February 21, 1918, by an order which reads thus:

"On motion of the plaintiff by R. S. Parks, his counsel, and it appearing to the court that this action has been compromised between the parties on the terms that the defendant should pay the sum of $125, and further that the said sum has been paid to the duly qualified guardian of the plaintiff, who consented to compromise and who is also the mother of the plaintiff and his next friend in this action, it is ordered that this cause be dismissed settled."

For all of which the record is avouched, and there is a further averment that the previous judgment and the costs taxed therein have been fully paid, satisfied, and discharged. The facts thus pleaded were relied on as a bar to this action.

There was another plea averring the same facts, which on motion of the plaintiff was stricken out and need not be further adverted to.

The plaintiff also moved to strike out the plea of which we have recited the substance, but his motion was overruled, and, he declining to "plead further or reply" thereto, there was judgment for the defendant. It is contended here that this judgment is erroneous because the circuit court of Page county never acquired jurisdiction of the first action, and therefore all of the proceedings therein were void; this because the officer's return upon the process shows that there was never any valid service of the process upon the defendant. This invalidity may be conceded, and if the defendant had relied on it no judgment adverse to it could have been enforced, for such a judgment would have been void. The defendant, however, could certainly have waived this defect in the service of process by an appearance.

While the record of the first action does not specifically recite an appearance, it does fairly show that the defendant knew of the plaintiff's demand, admitted its justice, and paid it. The inference, therefore, that the defect in the service of process was waived by the defendant is irresistible. Having paid the plaintiff the amount claimed in the action, the service of process becomes immaterial. The defendant could have taken advantage of its invalidity, but we know of no principle, precedent, or reason which can be invoked for the advantage of the plaintiff after he has received every benefit which, if the service had been valid, he could possibly have received by a favorable judgment in the action.

The authorities relied on by the plaintiff here are all cases in which the defendant denied the jurisdiction of the court and the validity of an adverse judgment because of the lack of valid process, and have no application, to this issue. It appears to us obvious that a plaintiff who properly invokes the power of a court, and before the trial of his action receives all that he demands therein, cannot deny its jurisdiction to enter, upon his motion, proper orders therein for its final disposition.

Adverting then to the order which was entered on motion of the plaintiff in the former action, we find that, after reciting, in effect, that there had been an agreement (called a compromise, which imports an agreement) to pay $125, which was the sum demanded in the declaration, and that it had been paid, the action was "dismissed settled." This can only mean that the litigants mutually agreed upon a settlement which was reported to the court by the plaintiff's attorney, for a final order disposing of the case. Every distinguishing feature of ...