Lynch v. West

• Decision Date: 18 February 1908
• Citation: 63 W.Va. 571,60 S.E. 606
• Court: West Virginia Supreme Court
• Parties: LYNCH . v. WEST et al.

60 S.E. 606

63 W.Va. 571

LYNCH .

v.WEST et al.

Supreme Court of Appeals of West Virginia.

Feb. 18, 1908.

1. Process—Service—Presumptions.

The presumption in favor of an officer to whom a writ is directed that he served the same within his county cannot be indulged in favor of a private individual serving process.

2. Same—Return.

When process is served by a private individual, under section 2, c. 124, Code 1899 [Code 1906, § 3798], his return must, in addition to showing the manner and time, also show the place of service.

3. Judgment—Default—Vacating.

When the return of process by an individual is thus defective, and there is judgment by default based thereon, such judgment may be vacated and annulled upon motion, either under section 1, or section 5, c. 134, Code 1899 [Code 1906, §§ 4032, 4036].

4. Same.

Where there has been a judgment by default upon such void process, the statute relating to pleas in abatement will not be applied so as to deny to the defendant the remedy provided by sections 1 and 5 of said chapter 134, Code 1899 [Code 1906, §§ 4032, 4036] for correcting or reversing such judgments.

(Syllabus by the Court.)

Error from Circuit Court, Roane County.

Action by V. S. Lynch against E. H. West and others. Judgment for plaintiff, and defendants bring error. Affirmed.

G. F. Cunningham, Pendleton & Boggess, and Thos. P. Ryan, for plaintiff in error.

W. O. Parsons and Linn, Byrne & Linn, for defendants in error.

MILLER, J. West and Short sued Lynch in assumpsit in the circuit court of Roane county, the writ and declaration laying the damages at $2,500. The writ was tested November 28, 1905, returnable to the first Monday in December following, and was directed to the sheriff of Roane county. Lynch, the defendant, did not reside in Roane county, but in Upshur county, jurisdiction In Roane county being founded on the fact that the cause of action arose there. The defendant was not found in Roane county, or served with process there; but the writ commencing the suit was placed in the hands of E. W. McKown, a resident of Roane and a party to the contract sued on, and carried by him into Upshur, and served upon Lynch there December 4, 1905. On his return to Roane county, McKown made the following return: "State of West Virginia, Roane county, to wit: E. W. McKown, being duly sworn, says that he executed the within summons on the 4th day of December, 1905, on the within-named V. S. Lynch, by delivering to him in person an office copy thereof. E. W. McKown. Sworn to and subscribed before me this 5th day of December, 1905. J. M. Harper, Notary Public, Roane county, W. Va." The defendant made no appearance; and, after declaration filed and the usual proceedings had at rules, judgment by default was pronounced January 4, 1906, as follows: "This day came the plaintiffs, by their attorneys, and the defendant, though thrice solemnly called, came not to require a jury, and the plaintiff requiring none, the court is substituted in place of a jury to assess the plaintiffs' damages, and, having heard the evidence, the court doth ascertain the plaintiffs' damages to be the sum of $966.-87. It is therefore considered by the court that the plaintiffs E. H. West and W. H. Short do recover of the defendant, V. S. Lynch, the said sum of $966.87, the damages as assessed by the court as aforesaid, with interest thereon from this date until paid, and their costs by them in this behalf expended, including a statute fee of $10." The present writ of error is brought by West and Short to review the judgment of the circuit court pronounced January 7, 1907, vacating and setting aside said judgment of January 4, 1906, on motion of Lynch. This motion is based on the provisions of sections 1 and 5, c. 134, Code 1899 [Code 1906, §§ 4032, 4036]; the first providing that, "for any clerical error or error in fact for which a judgment or decree may be reversed or corrected on writ of error coram nobis, the same may be reversed or corrected, on motion after reasonable notice, by the court or by the judge thereof in vacation"; the fifth providing that "the court in which there is a judgment by default or a decree on bill taken for confessed, or the judge of said court in the vacation thereof, may, on motion, reverse such judgment or decree for any error for which an appellate court might reverse it, * * * and give such judgment or decree as ought to be given. * * * Every motion under this chapter shall be after reasonable notice to the opposite party, his agent, or attorney in fact or at law, and shall be within five years from the date of the judgment or decree." The grounds of the motion were substantially, first, that Lynch at the time of the institution of said suit against him was, and thereafter continued to be, a resident of Upshur county; and, second, that he was not otherwise served with process except by said E. W. McKown in Upshur county, wherefore, said circuit court acquired no jurisdiction to render personal judgment against him. To this motion West and Short appeared, and their motion to quash the same and notice thereof, and their demurrer thereto, were overruled.

Personal jurisdiction to pronounce said original judgment is founded solely on the service of process by McKown. Section 2, c. 123, Code 1899 [Code 1906, 8 3795], provides that "an action may be brought in any county wherein the cause of action or any part thereof arose, although none of the defendants may reside therein." Section 2, c. 124, Code 1899 [Code 1906, § 3798], provides that "process from any court, whether original, mesne or final, may be directed to the sheriff of any county, except that process against a defendant to answer in any action brought under the second section of chapter 123 of the Code shall not be directed to an officer of any other county than that wherein the action is brought. * * * Process to commence suits * * * may also be served by any credible person; and the return of such person, verified by his affidavit, shall be evidence of the manner and time of service."

It is argued here for plaintiffs in error that the return of service by McKown, verified by him, strictly conforms to the above requirements as to service of process by "any credible person, " the law presuming him to be of the class of persons designated; that his return being by the statute made evidence of the "manner and time of service, " the law will also presume, as where an officer makes the service, that it was done in the county to whose officer the writ is required by statute to be directed—in the present case in the county in which the ac tion is required to be brought—and therefore the verity of his return, as in case of a return by the officer, can only be impeached by plea in abatement. On the other hand, it is contended for Lynch, in support of the judgment on said motion, that said return is void on its face, because it does not show the place of service which, if disclosed, would show want of jurisdiction in the court to pronounce the original judgment, nothing being presumable in favor of the verity of the individual service as to any fact not shown on its face. Thus in this case we are face to face with the proposition made the subject of a query in Association v. Spies, 61 W. Va. 19, 55 S. E. 903, viz.: "When a process is served by an individual, is it necessary for the affidavit or return showing the time and manner of service to also show the place of service?" After the appeal in that case the defect in the return was cured by amendment in the circuit court, the proceedings relating to such amendment being shown to this court by supplemental record, and the point was therefore not decided; but the conclusion we have reached In this case was foreshadowed by what the court said on the subject then: "The process was served by an individual, and an affidavit was made as to the manner and time of service, but it failed to show where it was served. A personal decree was rendered against the defendants; hence the necessity of personal service. Where was this process served? Was it within the jurisdiction of the court? It does not show this expressly, and as it does not, where do we get the information? The process was directed to the sheriff of Monroe county, and, this being so, is there a presumption that it was served in this state? If not, the service would not be good. There would necessarily have to be such presumption to sustain it. Where a process is served by an officer, whose duty It is to do so, it is not necessary for the return to show that it was served in his bailiwick. An officer is presumed to have discharged his duty and not to have exceeded his powers. We cannot presume that, when a process is delivered to an officer to be served, he will do an unlawful act by serving it outside of his county; but it is presumed that he did not do so."

No one would contend for a moment that in a case like this, where by section 2, c. 124, Code 1899 [Code 1906, § 3798], process could only be directed to the sheriff of the county in which the action was brought, and could only be executed by him there, so as to give jurisdiction, the same process could be carried by an individual outside of the county and served by him on a nonresident d...