Hopkins v. Baltimore & O.R. Co.
| Decision Date | 02 December 1896 |
| Citation | 26 S.E. 187,42 W.Va. 535 |
| Parties | HOPKINS v. BALTIMORE & O. R. CO. |
| Court | West Virginia Supreme Court |
Submitted September 5, 1896
Syllabus by the Court.
1. Return of service of a summons from a justice's court defective in failing to show that service on a corporation's agent was made in the county of his residence, may be amended, either before the justice or in the circuit court upon an appeal.
2. Officers are allowed, with liberality, to amend their returns of service of process.
Error to circuit court, Jefferson county.
Action by William Hopkins, for the use of the Peabody Insurance Company, against the Baltimore & Ohio Railroad Company. Judgment for defendant. Plaintiff brings error. Reversed.
McDonald & Beckwith, for plaintiff in error.
Geo Baylor, for defendant in error.
William Hopkins brought a suit against the Baltimore & Ohio Railroad Company before a justice, and obtained judgment, and the railroad company appealed to the circuit court. In the circuit court the company moved to quash the summons, and the return of service of it, and the motion was sustained. The only basis suggested for this motion is that the constable's return, showing service on an agent of the company at one of its stations, failed to show that he resided in the county in which the service was. This would invalidate the return and the judgment on it. Taylor v Railroad Co., 35 W.Va. 328, 13 S.E. 1009; Frazier v Railroad Co., 40 W.Va. 224, 21 S.E. 723. But the defect would not affect the summons, would not show that, in fact, there was no jurisdiction in that justice's court for the suit, and hence could not be ground for a motion to quash both summons and return, and would not warrant the judgment quashing both and dismissing the suit finally. But, when the court ruled to sustain the motion, Hopkins asked leave to amend the return so as to cure the defect, but the court refused to allow the amendment. Objection is made in this court to the amendment on grounds which we will not discuss, as they involve only the construction of the proposed amendment, and their discussion would state no principle of law; but we think those grounds untenable. Then we come to the question whether the law allows any amendment of the return. What can be said against it? It is argued that, as the judgment is void, the return cannot be amended; and a case is cited holding that, where a judgment is void for want of jurisdiction, no amendment of the return can validate it. But it is not proposed to validate the judgment here. Its validity is not the question. Nor is the jurisdiction of the justice to entertain the suit the question. The return is not void in the sense of mere nullity. It is a return, but defective. It is voidable, but subject to amendment. The question relates to service of process, and, indeed, not strictly to that, as we are not now on the matter of the sufficiency of a return. The question is one of the amendability of the return of service.
Now, is there anything peculiar in the omission in this case to forbid amendment? That omission did not relate to jurisdiction, but only to service; and if it did, if jurisdiction depended on the fact of the residence of the agent, and it was to be show by the return, an amendment to show it would be admissible. Great liberality is allowed officers in amending returns, for the twofold object that the officer, who is under oath to state the facts of the service may cure any defect arising from ignorance or inadvertence in making his...
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