Mahany v. Kephart

• Decision Date: 08 November 1879
• Citation: 15 W.Va. 609
• Court: West Virginia Supreme Court
• Parties: Mahany v. Kephart and The B. & O. E. R. Co.

15 W.Va. 609

Mahany

v.Kephart and The B. & O. E. R. Co.

Supreme Court of Appeals of West Virginia.

Decided November 8, 1879.

The object of service of process is to bring the party into court. A judgment by default with process badly executed would not be legal.

By appearance to the action in any case, for any other purpose than to take advantage of the defective execution, or non-execution, of process a defendant places himself precisely in the situation in which he would be, if process were executed upon him, and he thereby waives all objection to the defective execution or non-execution of process upon him.

In an action at law against a non-resident, in which an attachment has been sued out, if the absent defendant does net appear in the case and has not been served with procass, there should not be a personal judgment against him, but the attached effects should alone be subjected. But if he does appear to the action, for any other purpose than that above indicated, there may be a porsonal judgment only against him, or there may be both a personal judgment and an order and judgment subjecting the attached effects.

K. was on the 6th day of April, 1878, indebted to S. in the sum of $106.00, and for that sum made his promissory note to S. payable one year after date. At that time K. and S. were both citizens and residents of the city of Baltimore in the State of Maryland, and from that time until the final judgment of the court below rendered in this cause continued to be citizens and residents of the same city and State, and not elsewhere. In the month of May in the year 1878, after said promissory note became due and payable, the said S. assigned ard transferred the said promissory note to M., the plaintiff, who at the time of the said assignment was and still is a citizen and resident of the State of West Virginia. At the time of the commencement of this suit by M. as assignee of S. in the circuit court of Harrison county, West Virginia, and suing out the attachment therein, the Baltimore & Ohio railroad company was indebted to the said defendant, K., in the sum of $105.00 for work and labor performed by the said K. for the said railroad company in the said city of Baltimore in the State of Maryland, and while the said K. resided therein. The said B. & O. R. R. Go. was at the time, and still is, a corporation created by the laws of the State of Maryland, with its principal office and place of business in the said city of Baltimore; and the said Baltimore and Ohio railroad company owned and was at that time the owner of and operating a railroad, partly in the State of West Virginia, and had an agent residing in the county of Harrison. And without said money, so due and owing to the said K. by the said B. & O. E. B. Co., the said K., at the time the suit was commenced and the said attachment was issued, had no property, estate or debts due him in the county of Harrison, or in the State of West Virginia. During all the time aforesaid, and before and since, the said Baltimore & Ohio railroad was an incorporated company by law in this State, with power granted by statute to sue and be sued. The said suit being an action of debt was commenced in the circuit court of Harrison county, West Virginia, on the 25th day of May, 1878; and said attachment was sued out therein against said K., as a non-resident of West Virginia, on the 27th day of May, 1878, though the affidavit on which the attachment was issued is dated the 25th day of May, 1878. Under the attachment the said railroad company was summoned as garnishee by service of the process of attachment in the said county of Harrison on the 1st day of June, 1878, upon W. J. Eobinson, an agent of said railroad company residing in the said county of Harrison, under the provisions of the 7th section of chapter 124 of the Code of 1868 of West Virginia. The writ issued in the cause was not served on K., but at the rules, to which it was returnable, the plaintiff, M., by his counsel filed his declaration in the cause, and the said K. at the same rules appeared to the action and filed a plea denying the jurisdiction of the court, on which issue was joined. The said railroad company on the 22d day of June, 1878, filed its answer as garnishee, in which it substantially admits its indebtedness of said $105.00, to K., in substance as above, stated, but denies that it was liable under the circumstances and facts aforesaid, (see answer of said railroad company set out in full in the opinion of the Court), for said money as garnishee in the cause, and moved the court to be discharged from said attachment. On the 28th day of June, 1878, the plaintiff, M., and defendant, IL, appeared in court and submitted the cause to the court in lieu of a jury, and "filed an agreement of all the facts of this case and submitted the' same and the law thereof to the court," and the court rendered judgment thereon in the case against said K. for the amount of said promissory note and interest and costs of suit; and also ordered the said railroad company as garnishee to pay said $105.00. Held:

I. That under the facts and circumstances the court below did not err in rendering a personal judgment for the debt and costs against K. (See opinion of this Court.)

II. That, said railroad company was under the circumstances and facts in the case, and the law in force in this State applicable to said railroad company, liable as garnishee in the cause for said $105.00, and the court below did not err to the prejudice of the said railroad company or the said K., in so ruling and ordering.

III. Under the facts stated said K. could have maintained an action at law in this State against said railroad company for the recovery of said $105.00 so due from said company to said K.

Writ of error and supersedeas to a judgment of the circuit court of the county of Harrison, rendered on the 28th day of June, 1878, in an action of debt in said court then pending, wherein Patrick Mahany was plaintiff, and John A. Kephart and The Baltimore & Ohio Railroad Company were defendants, allowed upon the petition of the said defendants.

Hon. A. B. Fleming, judge of the second judicial circuit, rendered the judgment complained of.

The facts of the case fully appear in the opinion of the Court.

C. Boggess, for plaintiffs in error, cited the following authorities:

Bac. Abr. "Condition Id. "Tender Condition 25 Wend. 405; 2 Cliff. 465; Code, ch. 106, §§14, 15, 16; 10 Mass. 348; 21 Pick. 263; 3 Pick. 302; 15 Pick. 445; 33 Me. 414; 6 N. H. 497; 45 N. H. 533; 6 Vt. 614; 25 Conn. 452; 4 Abb. Pr. 72; Id. 193; 4 Foster 510.

There was no appearance for defendant in error.

Haymond, Judge, delivered the opinion of the Court:

On the 25th day of May, 1878, the plaintiff below, Patrick Mahany, assignee of Daniel Schaffer, brought "his action of debt for $106.00 in the circuit court of the county of Harrison against John A. Kephart. The writ "was made returnable at the rules of said court on the last Monday in May, 1878. On the day the action was commenced the plaintiff therein made oath before a notary public of said county:" That his claim in said action is for a debt of $106.00, due by a promissory note in writing for that sum, made on the 6th day of April, 1878, by the said John A. Kephart, payable to said Daniel Schaffer one day after the date thereof; and the said Daniel Schaffer assigned the same to the affiant, and that said affiant believes he is justly entitled to recover in said action the sum of $106.00, with interest thereon from the 7th day of April, 1878, and that said affiant believes that the following ground exists for an attachment against the defendant in the said action, to-wit: That the said defendant is a non-resident of this State," Afterwards, on the 27th day of May., 1878, the clerk of said circuit court by virtue of said affidavit issued an order of attachment in said action, requiring the sheriff of Harrison county, or a constable of any district therein to whom said order should come, to attach the estate of the defendant sufficient to pay said $106.00 with interest from the 7th day of April, 1878, and the costs of the suit, and make return of his proceedings under the order to the next term of said circuit court. By an endorsement on said order of attachment, made by the said clerk, the officer serving the attachment was required to serve a copy of the same on The Baltimore and Ohio Railroad Company, and said company was required to appear at the next term of the said circuit court, and disclose what sum " it is indebted or what effects or estate it has in its possession or under its control belonging to said defendant." The sheriff of said county by his deputy made return on said order of attachment, that he executed the said order of attachment on the 1st day of June, 1878, by delivering a copy thereof to W. J. Robinson, an agent of said company, in the said county of Harrison, wherein the said Robinson resides. It appears that the sheriff of said county made return on the original writ or summons issued in the action on the return day thereof, that " the within named defendant is no inhabitant of my bailiwick." It also appears that the plaintiff appeared at the rules at which the said writ was returnable and filed his declaration, and that the defendant appeared at the same rules and filed his plea in writing, which is in these words, viz:

" In the Circuit Court of Harrison County:

" John A. Kephart ads. P. M ah any, assignee of

Daniel Schqffer.In debt." And the said defendant in his own proper person comes and says that this court ought not to have or take further cognizance of the action aforesaid, because he says that at the time the said action was commenced in this court, he did not reside in the said county of Harrison, but resided in the city of Baltimore, and State of Maryland; and from thence hitherto has continued and still does reside in the said city of Baltimore, and State of Maryland; that at the...