Lockard v. Whitenack

• Decision Date: 20 September 1928
• Citation: 144 S.E. 606
• Parties: LOCKARD. v. WHITENACK.
• Court: Virginia Supreme Court

144 S.E. 606

LOCKARD.

v.WHITENACK.

Supreme Court of Appeals of Virginia.

Sept. 20, 1928.

Appeal from Law and Chancery Court of City of Roanoke.

Suit by L. O. Whitenack against Seth Lockard. Judgment for plaintiff, and defendant appeals. Reversed.

A. B. Hunt and T. W. Messick, both of Roanoke, for appellant.

Dillard, Moomaw & Dillard, of Roanoke, for appellee.

HOLT, J. This litigation had its inception in a motion for judgment, returnable on March 20, 1923, to the corporation court of the city of Roanoke. In it Seth Lockard undertook to notify L. O. Whitenack and P. G. Moore that he would ask judgment against them for damages caused by reckless operation of an automobile owned by Whitenack and run by his agent, Moore. This motion was served on Whitenack, but not on Moore.

For the purpose of representing him, P. H. Dillard, Jr., a member of the law firm of Dillard, Moomaw & Dillard, went with Whitenack to that court on the morning of the return day. For some reason the judge was not present. Mr. Dillard said that:

"After we went in the clerk's office, and found the writ tax had not been paid, I told Mr. Whitenack he could go on back to his work, and that there would have to be another notice served upon him before they could get him before the court. The reason I know that I am correct in my testimony is that on that morning there on the clerk's desk I wrote on the notice which was served on Mr. Whitenack the following, which is on the notice to-day: 'L. O. Whitenack appeared March 20, 1923, at 10 a. m., and waited until 10:30. Upon investigation, no writ tax had been paid and Moore had not been served.' I recollect the day writing that on that notice. The next thing I heard of the matter execution had issued on a judgment from the law and chancery court on Mr. Whitenack's time several months later."

Mr. T. W. Messick, one of counsel for the plaintiff there, gives this account of what occurred:

"The motion for judgment was returnable on the 20th of March, 1923. On that day, in the neighborhood of 10 o'clock (to the best of my recollection it was after 10 o'clock; to the exact minute I cannot say), I went to the courthouse for the purpose of making a formal motion before the court for judgment in the case. I had not as yet paid the writ tax. I went into the clerk's office for the purpose of paying the writ tax, and paid the tax. While I was paying same, or had finished paying same, and started to leave the clerk's office, I met Mr. Dillard and Mr. Whitenack at the door of the clerk's office and discussed the matter with them. I told them that I had paid the writ tax, and, as there wasn't any judge, on the bench, we would just consider the case docketed, and 1 would not make any formal motion before the court."

It is not necessary for us to say which of these statements is the more accurate. Section 6046 of the Code of Virginia provides that a motion shall be docketed on the return day, but there is no requirement that the writ tax shall be paid before that time, and counsel was mistaken in assuming that there was.

In 2 Pomeroy's Equitable Remedies, § 659, it is said:

"It is a familiar doctrine that a mistake of law will not be relieved against, save in certain exceptional cases. This principle is generally applied to relief against judgments. Bearing in mind that we are now considering only mistakes as to the proceedings, it is clear that a party should not be allowed to set up his lack of knowledge of law as a reason for not presenting his case. If he were allowed this right, it would be a very simple matter, as an unsuccessful litigant, to obtain a new trial on the ground that he did not present certain evidence, because he thought it would not be admissible. The advice of counsel that there is no defense, or a similar expression from the judge on the bench, will not be sufficient to warrant equity in relieving from a mistaken course taken in reliance on such advice."

This motion was not abandoned, but went on the docket in due course. There had been personal service of process on Whitenack, and he was represented by counsel duly retained. Lockard was in no wise responsible for his mistake.

Afterwards, and at its April term, 1923, this order was entered in this case by the corporation court:

"Seth Lockard v. L. O. Whitenack et al:

"By agreement of parties, by counsel, it is ordered that this case be removed to the court of law and chancery of the city of Roanoke, Virginia, to be therein docketed as if therein originally instituted."

It is not claimed that the provision of section 6175 of the Code, dealing with the transfer of causes from one court to another, wascomplied with, and it is not denied that such an order might have been entered by consent of counsel duly given.

On the occasion of the transfer Mr. Messick was present and made the necessary motion. His evidence is:

"At the next term of the court I moved the court to transfer the case to the law and chancery court, and this was done at the calling of the docket. I do not recollect positively whether Mr. P. H. Dillard was present at the calling of the docket and consented to the transfer of the case or not, but I do know that, when the motion was made, one of the members of the firm of Dillard, Moomaw & Dillard were present and consented to the transfer. The best of my recollection is that it was Mr. Pat Dillard. After the case was transferred to the law and chancery court, I had the case set for trial at the calling of the docket, and called Mr. Dillard on the 'phone and informed him the date the case was to be tried. As to what reply Mr. Dillard made to me, I do not remember."

Mr. Dillard, on direct examination, testified as follows:

"Q. It appears that an order was entered in the corporation court transferring the case of Seth Lockard v. L. O. Whitenack and P. G. Moore to the court of law and chancery, said order reciting that it was entered by agreement of counsel. State whether or not you ever agreed, or knew anything about that order.

"A. My recollection of it is that I knew nothing about it. Mr. Messick called me up about removing some case, but I didn't know it was this case. I thought, perhaps, if it was this boy's case, that another notice had been served on him, and that he had employed some one else to represent him. It could have come about in that way."

On cross-examination he said:

"Q. At the April term of court, were you not present at the calling of the docket, when a motion was made, and which you consented to, and the case was transferred to the court of law and chancery?

"A. I may have been present at that docket, but I didn't consent to the transferring of this case. I didn't consider I had been employed, because he had no other notice that I knew of. Why should I consent, if I was not interested in the case? I do recollect you calling me up over the 'phone, but I didn't consent to any removal."

Giving to each of these gentlemen equal credit for good faith, we believe this evidence shows that Mr. Dillard was then present. Mr. Messick said that he was, and Mr. Dillard said that he might have been.

In Walker v. Commonwealth, 144 Va. 648, 131 S. E. 230, this court had occasion to deal with the verity of record, and emphasizes the rigor of that rule:

"The record imports such absolute verity that no evidence will be received to add to it or subtract from it, except under statutory permission. So strict is the application of the rule that this court refused to accept the most satisfactory proof of an omission from the record in a case involving human life. Dallas Wright v. Commonwealth, 111 Va. 873, 60 S. E. 956. See, also, Barnes v. Commonwealth, 92 Va. 794, 23 S. E. 784; Patterson v. Commonwealth, 139 Va. 589, 123 S. E. 657."

Under this rule, and under authority of the old English case of Anonymous, Salk. SO, 88, there are authorities to the effect that a judgment recovered where there was no personal service of process and an unauthorized appearance by a regular attorney will not be enjoined, in the absence of proof of collusion. Bunton v. Lyford, 37 N. H. 512, 75 Am. Dec. 144.

It is now, however, well established that one who has not been served with process may always show it, and in such a case he may show that any lawyer who purported to represent him did it without authority, and as a consequence thereof may have the judgment set aside. Probably the leading cases on this subject are Shelton v. Tiffin, 6 How. 163, 12 L. Ed. 387, and Harshey v. Blackmarr, 20 Iowa, 161, 89 Am. Dec. 520, the opinion in this case being by Judge Dillon.

In Raub v. Otterback, 89 Va. 645, 16 S. E. 933, it was held that courts cannot acquire jurisdiction over a party without personal service of process against him, or appearance by him in person, or by his authorized attorney, and that his evidence is competent to show that he employed no such attorney.

Smiley v. Provident Life & Trust Co., of Philadelphia, 106 Va. 787, 56 S. E. 728, is also in point. That was an action of ejectment, in which a member of the Staunton bar appeared as counsel...