Hollandsworth v. Stone el al.
| Decision Date | 07 April 1900 |
| Parties | Hollandsworth v. Stone el al. |
| Court | West Virginia Supreme Court |
Decided April 7, 1900.
1. Service op Summons Person Officer.
Any credible person may serve a summons or other process, or legal notice, and make verified return of such service, though there has not been any prior return of not executed by an authorized officer, (pp. 774-775).
2. Evidence Demurrer Burden of Proof.
Either party in an action at law may, of right, demur to the evidence of his adversary, when that adversary carries the burden of proof, unless the case be clearly against the demurrant, or the court entertains a reasonable doubt as to what facts should be fairly inferred from the evidence, (p 766.)
3. Demurrer to Evidence Joinder Objection.
One who objects to being' compelled to join in a demurrer to evidence must make his objection thereto in the circuit court, and cannot make it for the first time in the supreme court. (p. 778-779).
Error, to Circuit Court, Lincoln County.
Action by J. M. Hollandsworth against George W. Stone and others. Judgment for plaintiff, and defendants bring error.
Affirmed.
Lace Marcum, J. R. Wilson and D. E. Wilkinson, for plaintiffs in error.
Campbell&May, for defendant in error.
This is an action of debt in the circuit court of Lincoln County, by J. M. Hollandsworth against George W. Stone and others upon a penal bond given to Hollandsworth by Stone and others, with condition that Stone, as deputy of Hollandsworth, sheriff of Lincoln County, would faithfully discharge his duties as such deputy, and pay over and account for, as required by law, all moneys that should come to Stone's hands by virtue of his office of deputy sheriff. Upon the trial the plaintiff demurred to the evidence of the defendant, and the court gave judgment for the plaintiff upon such demurrer to evidence, and the defendants have brought the case to this Court by writ of error.
1. The summons in the action having been served by a private individual, the defendants moved the court to quash the return of service because the service was made by a private individual without the original writ having been first returned "Not executed" by an officer. This motion is rested on the theory that section 2, chapter 124, Code 1891, provides that "process to commence suits, including writs of scire facias, mandamus, quo warranto, certiorari, prohibition and the alias or other process, where the original is returned not executed, may also be served by any credible person." It is claimed that, as this summons showed no return of not executed, the return of service by an individual, verified by his affidavit, is absolutely void. If this Court holds that doctrine, it would upturn how many judgments and decrees in West Virginia? It would reverse the practice prevalent throughout this State for fifty years. As far back as the Cot.e of 1849, chapter 170, section 6," it was provided that "any summons or scirs facias may be served as a notice is served under the first section of chapter 167," and that provides that This provision Uas ever since continued the law. Code, chapter 124, section 6, and chapter 121, section 1. Under it such long practice of serving process by individuals has prevailed. It would be a total reversal of this practice to hold now as we are asked to hold, and it would nullify the plain meaning of the statutes cited, made for remedial purposes, and for public convenience in the service of process. But there is no clash between the statutory provisions above quoted. The construction of section 2, chapter.24, contended for by counsel for Stone, is not sound. The words "not executed" do not refer to the process to commence suits, but only to the words "other process." They are simply descriptive of "other process." The lawmaker, fearing that it might be contended that further process after the original might be required to go to the same officer, expressly provided for its service by a private individual, just like other process. It was meant to say that not only original process might be served by an individual, but also alias or any other process, whatever its proper name, "pluries" or other, where the prior process had been returned unexecuted, might be served by an individual, just like the other process mentioned in the section. This construction harmonizes all these provisions. Where is the reason in requiring that, before an individual shal serve process, there shall be a return of not executed by an officer? Peck v. Chambers, 44 W. Va. 270, (28 S. E. 70b), does, not bear on this point. The point in that case was whether an individual serving process must be a credible person; and the case does not discuss the point we have in hand, and was not meant to sustain the construction of section 2, chapter 124, contended for.
2. It is argued that the court erred in requiring defendants to join in the demurrer to evidence. The court did not do so. The defendants did not object to joining in such demurrer. So far as the record discloses, they willingly did so. But, if there had been an objection, the court would have been bound to compel such joinder, because, the plaintiff having showm enough to sustain his action and cast the burden of defense on the defendants, the plaintiff had a right to compel the defendants to join in the evidence. This will appear from principles stated in the opinion by Judge McWhorter (this term) in Bennett v. Perkins, (W. Va.) 35 S. E. 8. Bank v. Evans, 9 W. Va. 373, holds that "the defendant ought to be compelled to join in a demurrer to evidence, when the burden of proof is upon him, unless the case is clearly against the plaintiff, or the court doubts what facts should be reasonably inferred from the evidence." Shaw v. County Court, 30 W. Va. 488, (4 S. E. 439), holds that "either party may demur to the evidence, unless the case be clearly against demurrant, or the court has reasonable doubt as to what facts should be fairly inferred from the evidence."
3. The evidence shows that Hollandsworth, as sheriff, transacted the business in certain districts, and Stone in other districts, of Lincoln County, and that Hollandsworth paid certain drafts or orders against the boards of education of districts in...
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