Mooee v. Norfolk & W. Ry. Co

• Decision Date: 13 March 1919
• Citation: 98 S.E. 635
• Court: Virginia Supreme Court
• Parties: MOOEE. v. NORFOLK & W. RY. CO.

98 S.E. 635

MOOEE.

v.NORFOLK & W. RY. CO.

Supreme Court of Appeals of Virginia.

March 13, 1919.

Error to Circuit Court, Campbell County.

Action by Thomas W. Moore against the Norfolk & Western Railway Company. Judgment for plaintiff by default, and defendant's motion to dismiss the case for lack of jurisdiction was allowed, and plaintiff's motion to be allowed to amend his declaration was overruled, and plaintiff brings error. Reversed.

This is an action by the plaintiff in error against the defendant in error in seeking to recover damages for alleged personal injuries. The parties will be hereinafter referred to as plaintiff and company, respectively.

The cause of action arose in the city of Lynchburg, the alleged injuries having occurred there on the railroad of the company, and this appears on the face of the declaration.

The action was instituted in the circuit court of Campbell county against the company as sole defendant, and was commenced by process returnable at rules. There was service of the process in Campbell county in accordance with sections 3225 and 3227 of the Code, on a depot agent and telegraph operator of the company employed in such county on its railroad. The company failed to appear at the return day of the process, and failed then to demur, plead or answer, and, the plaintiff having filed his declaration, a conditional judgment was entered as to the defendant in accordance with the statute (section 3284 of the Code) in such case made and provided; and at the subsequent rules, the company continuing in default, judgment was entered against it at rules, with an order for damages to be inquired into, in pursuance of such statute. Thereafter, at term, the company appeared specially, and, after due notice thereof to the plaintiff, filed the following motion in writing, namely:

"And now comes the defendant, and, limiting its appearance to the point of questioning the jurisdiction of this court, says that this court has no jurisdiction over this suit, because it appears upon the face of the declaration filed herein that the entire cause of action arose without the jurisdiction of this court, to wit, Within the limits of the city of Lynchburg, whose courts properly have jurisdiction of the subject-matter of this suit and of the parties, and that the circuit court of the county of Campbell ought not to retain jurisdiction of this cause, and hence the defendant moves the court to dismiss this suit and no longer retain jurisdiction thereof. * * *

"Said motion will also be based upon the fact that it appears by the sheriff's return that the summons in this case was served on J. N. Finch, a depot agent and telegraph operator of the defendant at Rustburg, Campbell county, on February 5, 1918, there not being in said county either the president, cashier, treasurer, general superintendent, or any one of the directors of said Norfolk and Western Railway Company on whom the same could be served."

The court below sustained such motion on the ground that it appeared of record that the court was without jurisdiction of the case, and dismissed the same, with costs against the plaintiff.

Thereupon the plaintiff moved the court toallow him to amend his declaration by striking out the portion thereof from which it appeared that the cause of action arose in the city of Lynchburg, which motion the court overruled, and refused to allow such amendment.

And the plaintiff brings error.

A. H. Light, of Rustburg, for plaintiff in error.

F. S. Kirkpatrick, of Lynchburg, and W. H. Mann, of Petersburg, for defendant in error.

SIMS, J. (after stating the facts as above). The question raised by the assignments of error will be considered and passed upon in their order as stated below.

1. Did the trial court have jurisdiction of the action in the instant case?

This question must be answered in the affirmative.

The position of the plaintiff is that the trial court did have such jurisdiction, and that the motion of the company to dismiss the case was, in truth, an objection directed merely against the venue of the action, and came in the wrong form and too late under section 3260 of the Code (2 Pollard's Code 1904); that such an objection, as is expressly provided in such statute, cannot "be allowed, unless taken by plea in abatement, " which, of course, could not be filed at the stage of the proceeding in which said motion was made.

We consider such position well taken.

Section 3260 aforesaid is as follows:

"Where the declaration or bill shows on its face proper matter for the jurisdiction of the court no exception for want of such jurisdiction shall be allowed unless it be taken by plea in abatement. No such plea or any other plea in abatement shall be received after the defendant has demurred, pleaded in bar, or answered to the declaration or bill, nor after a decree nisi or a conditional judgment at rules." (The italics are supplied, except of the word "nisi.")

The company, on the other hand, relies upon sections 3215 and 3214 of the Code (2 Pollard's Code 1904) as being the authority which must, and the sole authority which can, be looked to as conferring jurisdiction of the instant case on the trial court.

Section 3215, so far as material, is as follows:

"An action may be brought in any county or corporation wherein the cause of action, or any part thereof, arose. * * *"

Section 3214, so far as material, is as follows:

"Any action at law * * * may be brought in any county or corporation.

"First. Wherein any of the defendants reside.

"Second. If a corporation be a defendant, wherein its principal office is, or where its mayor, rector, president, or other chief officer resides."

As to said section 3260 of the Code, the company contends that—

"It appears upon the face of the declaration * * * that the entire cause of action arose without the jurisdiction of the court, to wit, within the corporate limits of the city of Lynchburg, whose courts properly have jurisdiction of the subject-matter of this suit and of the parties."

Now, of course, it is true that under section 3215, the cause of action having arisen in the city of Lynchburg, its courts of general jurisdiction would have had jurisdiction of the instant case if it had been therein instituted and if process had been executed In accordance with the statute (section 3220 of the Code) in such ease made and provided. It is also true that, if the action had been brought against the company in the county or corporation wherein its principal office is or its president or other chief officer resides, the court of general jurisdiction of such county or corporation would have had jurisdiction of the action, by virtue of said section 3214. But that is so because those sections of the Code so fix the venue of the action in such a case. Accurately speaking, such sections of the Code do not confer "jurisdiction" upon any courts. They concern only the procedure of the courts touching the place of trial, or the venue of actions at law or of suits in equity. They confer merely a privilege upon the defendant to have the action or suit against him in such a case heard and determined in the local courts therein specified. But it is a privilege which may be waived, and which, if about to be denied, must, in Virginia, be claimed by plea in abatement filed in pursuance of section 3260 of the Code aforesaid; otherwise it will be lost, if the court in which the action or suit is brought has general jurisdiction of such an action or suit and has the subject-matter and the proper parties, plaintiff and defendant, before it. Burk's Pleading & Pr. pp. 273, 280, 284, 916, 917; 40 Cyc. 12-14, 16, 22, 23, 41-43, 103-105, 107, 111, and notes; Notes on Eq. Procedure, Washington & Lee University, § 21; Lile's Notes on Eq. Jur. p. 8; Lile's Notes on Eq. Pl. & Pr. §§ 8, 9, 25; Shaver v. White, 20 Va. (6 Munf.) 110, 112, 8 Am. Dec. 730; The Resolute, 168 U. S. 437, 18 Sup. Ct. 112, 42 L. Ed. 533; Nelson v. C. & O. R. Co., 88 Va. 971, 14 S. E. 838, 15 L. R. A. 583; Wells v. Hughes Ex'r, 89 Va. 543, 16 S. E. 689; Buster v. Ruffner, 19 Va. (5 Munf.) 27; Hughes v. Hall, 19 Va. (5 Munf.) 431; Reed et al. v. Gold, 102 Va. 37, 40, 45 S. E. 868.

Sections 3214 and 3215 of the Code, therefore, are not the source of authority which should be looked to as conferring jurisdiction on the trial court of the instant case. Under section 3058 of the Code (2 Pollard's Code 1904) the trial court had "* * * original and general jurisdiction of all * * * civil cases at law." And, this being a transitory personal action at law, the trial court had jurisdiction of it, regardless of where the cause of action arose; the company having been so served with process (under sections 3225 and 3227 of the Code) as to bring it before the court as a party defendant. Nelson v. C. & O. R. R. Co., 88 Va. 971, 14 S. E. 838, 15 L. R. A. 583; 40 Cyc. 17-19, 35-38, 103-105, 107.

The "proper matter" for the jurisdiction of the court mentioned in section 3260 aforesaid has reference to subject-matter over which the court has territorial jurisdiction, and the "jurisdiction" referred to is the territorial jurisdiction of the court over such subject-matter, which jurisdiction involves the venue of the suit or action.

That is to say, where the proper parties are before a circuit court, then, by virtue of the statute (section 3058 of the Code) and the common-law rule on the subject, its...