Mollohan v. North Side Cheese Co.

• Decision Date: 10 March 1959
• Docket Number: No. 10963,10963
• Citation: 107 S.E.2d 372,144 W.Va. 215
• Parties: Marie May MOLLOHAN v. NORTH SIDE CHEESE COMPANY et al.
• Court: West Virginia Supreme Court

Page 372

107 S.E.2d 372

144 W.Va. 215

Marie May MOLLOHAN v. NORTH SIDE CHEESE COMPANY et al.

No. 10963.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 3, 1959.

Decided March 10, 1959.

Syllabus by the Court

1. Recitals in a decree, though not conclusive, are presumptively correct and will previal in the absence of record evidence which necessarily contradicts them.

2. Upon a motion to reverse a default judgment under the provisions of Code, 58-2-4, a trial court is not bound by its former finding if the record before it is plainly contradictory to the recital in its former judgment.

3. Statutes in derogation of the common law should be strictly construed.

4. Under Chapter 47, Acts of the Legislature, Regular Session, 1937, which provides that in an action against a nonresident motorist service of process may be had upon the Auditor of this State provided that notice of such service and a copy of the process shall forthwith be forwarded by the Auditor to the defendant by registered mail, return receipt requested, and the return receipt, signed by the defendant or his duly authorized agent, or the registered mail, showing thereon the stamp of the post office department that delivery has been refused by the addressee, is appended to the original process and filed therewith in the clerk's office, the return of the registered mail showing the stamp of the post office department that addressee is 'Unknown' is not sufficient compliance with the statute to sustain a default judgment rendered against a nonresident defendant.

5. A default judgment rendered against nonresident motorists for damages arising out of the alleged negligent operation of a motor vehicle in this State is void for lack of jurisdiction where registered mail containing copies of process, forwarded to such nonresident motorists by the Auditor of this State, after service upon him, was returned bearing the post office department's notation 'Unknown'.

6. Where, in an action against a nonresident motorist, it appears that such nonresident motorist has not been validly served with process under the provisions of Chapter 47, Acts of the Legislature, Regular Session, 1937, it is reversible error for the trial court, upon a motion to reverse a default judgment taken against such nonresident motorist, after reversing the default judgment, to award the plaintiff a new trial.

John Crynock, Farmer & Farmer, George R. Farmer, Jr., Morgantown, for plaintiff in error.

Robert T. Donley, Hale J. Posten, Morgantown, for defendants in error.

BROWNING, Judge.

Plaintiff, in this action of trespass on the case, caused summonses to issue from the office of the Clerk of the Circuit Court of Monongalia County on September 24, 1956, directed to the Sheriff of that county, and returnable to October Rules. There is no return of service endorsed by the Sheriff thereon; however, the record discloses that such process was transmitted by letter of the Circuit Clerk of September 24, 1956, to the Auditor of this State for service upon him, as statutory agent for defendants as nonresident motorists, the addresses of both the corporate and individual defendants being given as certain box numbers in Pittsburgh, Pennsylvania. The Auditor accepted service on behalf of both defendants on September 26, 1956, and, by registered mail, forwarded the summonses to the defendants at their Pennsylvania addresses requesting return receipts. Both letters were subsequently returned to the Auditor's office on October 10, 1956, the envelopes bearing the following notations: 'Postmaster: Deliver to Addressee Only.'; 'Second Notice. No Reply To First Notice Mailed. Oct, -2, 1956.'; 'Return to Writer--Reason Checked--Unclaimed; Refused; Unknown; Insufficient Address; Moved, Left No Address; * * *.' Behind each reason stated, there is a blank space consisting of several dots, presumably in which to place a check mark. On each envelope a penciled cross, consisting of one vertical and one horizontal line, was placed in the space following the word 'Unknown', the horizontal line being entirely within that space, while the vertical line is extended in both directions into the spaces following the words 'Unclaimed' and 'Insufficient Address', those being the words immediately above and below, respectively, the word 'Unknown'.

The case having 'matured' for trial at the January term of court and a declaration having been previously filed, on motion of the plaintiff, the Common Order was confirmed and a writ of inquiry executed resulting in a verdict for plaintiff in the amount of $7,500.00. The judgment, entered February 4, 1957, contains the following recital: '* * * that process commencing said action was issued for service upon said Defendants as provided by Chapter 56, Article 3, Section 31, of the official Code of West Virginia, and the return of service of said process being ambiguous on its face, the Court thereupon heard evidence of witnesses produced concerning the actual facts pertaining to the service of said process, and it now appearing to the Court from said return and the evidence so adduced that said process has been served upon the Defendants as provided by law, it is therefore ordered by this Court that judgment entered in the Clerk's Office of this Court against said Defendants stand confirmed. * * *' The evidence referred to was not reported.

Shortly thereafter the January term of that court was adjourned and on May 28, 1957, at the April term of court, the defendants, appearing specially, moved to reverse the judgment of February 4, 1957 assigning several grounds in support thereof, including the ground that the Auditor's acceptance of service on behalf of the defendants did not comply with the provisions of Chapter 47, Acts of the Legislature, Regular Session, 1937, Michie's Code, 1955, Serial Section 5555(1), and, on July 22, 1957, the court entered its order in which it sustained such motion to reverse the judgment and awarded a new trial to the plaintiff, the order stating: '* * * doth hereby sustain said motion on the ground that altho the Auditor of the State of West Virginia actually accepted service of process yet there is no return receipt therefor signed by Defendants or their authorized agent or any notation upon the envelopes containing the process forwarded by the Auditor to the Defendants that delivery of said process had been refused by Defendants, * * *.'

Upon petition of the plaintiff, this Court granted a writ of error on February 17, 1958, to the judgment of July 22, 1957. The defendants now cross-assign as error the action of the Circuit Court of Monongalia County in awarding plaintiff a new trial.

The pertinent statutory provisions are: Chapter 47, Acts, 1937, Michie's 1955 Code, § 5555(1):

'* * * (a) * * * Service of such process shall be made by leaving the original and a copy thereof with the certificate aforesaid of the clerk thereon, and a fee of two dollars with said auditor, or in his office, and said service shall be sufficient upon said nonresident: Provided, that notice of such service and a copy of the process shall forthwith be sent by registered mail, return receipt requested, by said auditor to the defendant, and the defendant's return receipt signed by himself or his duly authorized agent or the registered mail so sent by said auditor is refused by the addressee and the registered mail is returned to said auditor, or to his office, showing thereon the stamp of the post office department that delivery has been refused, is appended to the original process and filed therewith in the clerk's office of the court from which process issued.' (Italics supplied.)

Code, 58-2-4: 'The court in which there is a judgment by default, or a decree on a bill taken for confessed, or the judge of such court in vacation thereof, may, on motion, reverse such judgment or decree for any error for which an appellate court might reverse it, if section seven of this article were not enacted, and give such judgment or decree as ought to be given.'

There was no appearance in this action by the defendants until after the entry of judgment against them. Therefore,...