Jones v. Crim

Citation66 S.E. 367,66 W.Va. 301
PartiesJONES et al. v. CRIM et al.
Decision Date23 November 1909
CourtSupreme Court of West Virginia

Submitted January 19, 1909.

Syllabus by the Court.

Equity regards the substance, and not the mere form, of pleadings and a pleading, although styled a "petition," and filed for the purpose of reviewing the proceedings in a former suit, will nevertheless be treated as an original bill, if the matter averred is sufficient ground for an original suit.

If a bill shows upon its face the want of proper parties, it is demurrable.

In order that substituted service of original process shall have the effect of actual service upon the party in person, the return must show that all essential provisions of the statute authorizing such substituted service have been strictly complied with.

A default decree rendered upon a defective substituted service of process is void for want of jurisdiction.

The recital in a decree, to the effect that process was duly served upon a defendant, is not conclusive evidence of proper service, but must be considered as referring to the manner of service shown by the return on the process which, if plainly contradictory, will prevail over the recital.

Absence from the record of the return of the process, showing the manner of service upon other defendants embraced in the recital in the decree along with the defendant, upon whom imperfect service is shown to have been made by a particular return as to him, raises no presumption that such defendant was afterwards properly served.

A sale and conveyance of land made under void decrees invests no title in the purchaser, but such deed may constitute a cloud upon the title of the true owner, which a court of equity will remove.

Appeal from Circuit Court, Barbour County.

Bill by Grover Jones and another against E. H. Crim and another Executors of J. N. B. Crim, deceased, and others. Decree for complainants, and defendants appeal. Reversed and remanded.

W. T Ice, Jr., for appellants.

W. T. George, for appellees.


This is an appeal from two decrees of the circuit court of Barbour county made on the 28th of September, 1906, and on the 22d of April, 1908, respectively. The first is the order overruling the demurrer to plaintiffs' petition, and the second is the final decree granting relief to plaintiffs.

In 1895 J. N. B. Crim brought a suit in equity against W. W. Jones and others to enforce the collection of certain liens against Jones' land. The following lands were subject to liens, and were sold, viz.: 87 1/2 acres which Jones held under contract of sale from Crim, to whom he owed $1,210.92 of the purchase money; 42 acres of surface and 42 acres of coal thereunder which had been severed, and a tract of 41 acres. Crim had gotten judgments on the purchase-money notes, and they thus became liens on the other lands as well, but not the first liens on them. All the liens amounted to $4,257.08 as of the 22 d of May, 1897. W. W. Jones made no appearance, and the lands were sold under decrees taken pro confesso as to him, and purchased by J. N. B. Crim at the price of $430. At the February term, 1898, the sale was confirmed, and Melville. Peck was appointed commissioner to make deed, and on the 13th of December, 1900, the deed was executed to Crim. W. W. Jones died in April, 1900, and J. N. B. Crim died, testate, some years after, and E. H. Crim and M. Peck qualified as his executors. In September, 1906, Grover Jones and Ethel Jones, infants, suing by their next friend, filed their petition to have said cause reviewed and the decrees and deed annulled, as a cloud on their title, alleging that W. W. Jones had not been served with process, and that therefore the default decrees were void as to him. They prayed also for an injunction against Crim's executors, who were also his sole devisees, to prevent them from taking title to the lands, if deed had not then been made, and also to prevent them from incumbering or conveying the lands. Petitioners are the infant grandchildren of W. W. Jones, being children of a deceased son, who had died some years before their grandfather died. The demurrer to the petition was overruled, and this is one of the errors assigned. Among other matters the demurrer raises the question of the statute of limitations. Its application depends upon whether the decree is only voidable, or absolutely void; and this, in turn, depends upon whether or not there was proper service of process upon W. W. Jones.

The petition may be treated either as a bill of review, an original bill in the nature of a bill of review, or as a motion, under section 4036, Code 1906, to correct a default decree for error in the record for which it should be reversed in an appellate court, because equity will regard the substance, and not the mere form, of the pleading. Silman v. Stump, 47 W.Va. 641, 35 S.E. 833; Strum v. Fleming, 22 W.Va. 404; Shenandoah Val. Bank v. Shirley, 26 W.Va. 563; Pethtel v. McCullough, 49 W.Va. 520, 39 S.E. 190. If the decree is absolutely void for want of jurisdiction of the person of W. W. Jones by proper service of process, the statute of limitations can have no application, and the decree may be avoided at any time; if void, it may be successfully assailed even collaterally.

With their petition plaintiffs exhibit a copy of the original process, together with the return thereon of the manner of service upon W. W. Jones. It shows that it was served by a person not an officer, and the return is as follows: "I have executed the within summons upon W. W Jones on the 22d day of October, 1895, by posting a copy of the within upon the front door of his dwelling house, no one being found there. Also on T. J. Jones by delivering him a copy in person on the 22d day of October, 1895. J. B. Knapp. Sworn and subscribed to before me this October 30, 1895, by said J. B. Knapp, J. H. Felton, Clk. N. P." This return is fatally defective. It does not show where service was had, which this court has held, in the case of Lynch v. West, 63 W.Va. 571, 60 S.E. 606, was necessary to be done. But whether or not the return in the present case would be fatally defective for this reason only it is unnecessary for us to decide, as there are other reasons rendering it void. The case of Lynch v. West may be distinguished from this one. That was a case where the court had jurisdiction of the action only on the ground that it arose in the county where the suit was brought; and, in such a case, it is necessary to show affirmatively that the defendant was served with process in the same county where suit is brought before jurisdiction of his person could be acquired. Such is not true of the present case, as the court's jurisdiction is determined by the location of the land, and the court had jurisdiction over the person anywhere within the limits of the state. But the return is bad because it does not show that summons was left posted upon the door. It is also bad because it does not show that it was left posted upon the front door of defendant's usual place of abode. His "dwelling house" may not have been his usual place of abode. It may have been occupied by some one else, or it may not have been occupied by any one, and still have been his property, his dwelling house. It is also bad because it does not show that the defendant could not be found. It simply says he was not found at this dwelling house. Before substituted service can take the place of, and be equivalent to, an actual personal service, all the requirements of the statute regarding the manner of such...

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