Myers v. Myers

• Decision Date: 13 November 1945
• Docket Number: 9707.
• Citation: 35 S.E.2d 847,128 W.Va. 160
• Parties: MYERS v. MYERS.
• Court: West Virginia Supreme Court

35 S.E.2d 847

128 W.Va. 160

MYERS v. MYERS.

No. 9707.

Supreme Court of Appeals of West Virginia.

November 13, 1945

Appeal from Circuit Court of Marshall County.

Syllabus by the Court.

1. A sheriff's return of service of a notice required under Code, 48-2-13, is prima facie but not conclusive evidence of service, and may be contradicted by parol evidence.

2. The entry of an order making an allowance of suit money and counsel fees in the absence of 'reasonable notice to the man' is reversible error.

Martin Brown, of Moundsville, for appellant.

W. F Keefer, of Wheeling, for appellee.

LOVINS President.

The Judge of the Circuit Court of Marshall County by an order entered in vacation required Earl F. Myers to pay Minnie Myers, or her counsel, the sum of $225 to enable her to defend her rights on an appeal lately pending in this Court in the suit of Myers v. Myers, from which order Earl F. Myers appealed.

Minnie Myers instituted a suit for divorce in the Circuit Court of Marshall County against Earl F. Myers. That court, after a hearing on the pleadings and proof, entered a decree granting her a divorce, and awarded her sole custody of two children of the marriage, suit money, permanent alimony, and the ownership of certain personal property. On appeal to this Court the decree of the Circuit Court of Marshall County was reversed and the bill of complaint dismissed. Myers v Myers, W.Va., 33 S.E.2d 897. During the pendency of the appeal plaintiff caused a notice to be prepared, addressed to her husband, which stated that she would on the 30th day of December, 1944, at 10 o'clock a. m., move the Circuit Court of Marshall County, or the Judge thereof in vacation at the courthouse of said county to enter an order requiring Earl F. Myers to pay her a sufficient sum of money to enable her properly to defend her rights in the Supreme Court of Appeals in connection with the appeal hereinabove mentioned.

The notice was delivered to Catherine Myers by a deputy sheriff of Ohio County, who made a return of service thereon as follows: 'Executed the within and hereto annexed notice within Ohio County, West Virginia, this 19th day of December, 1944, as to within named Earl F. Myers not being found in Ohio County, by delivering a true copy thereof at his usual place of abode in said county to Catherine Myers she being his mother and found there and being a member of his family and above the age of 16 years and a resident of said Ohio County at the time of said service; also by then and there giving information of the purport of said copy to the said Catherine Myers. W. H. Havercamp, D. S. for Sheriff of Ohio County Thomas B. Padden, S.O.C.'

On the return day of the notice counsel for Earl F. Myers appeared specially and moved the Judge of the Circuit Court to quash the notice and return thereon. In support of the motion, counsel for Earl F. Myers introduced the testimony of Catherine Myers who testified that she is the mother of Earl F. Myers by adoption; that she resides in the City of Wheeling, Ohio County; and that she was handed a copy of the notice by the sheriff. She further testified that the house in which she lived was not the home of Earl F. Myers; that it had never been his usual place of abode; that she informed the sheriff of that fact at the time of delivery of the notice to her; that she did not know whether Earl F. Myers had a usual place of abode; that his home had been broken up; and that he was then in the Navy of the United States.

No petition was filed. Minnie Myers relied on an oral motion, made pursuant to the notice. The Judge of the Circuit Court of Marshall County, upon the showing so made, entered the order as hereinabove set forth.

The jurisdiction of the Judge of the Circuit Court of Marshall County to enter the order here complained of is the controlling question. The power of a court, having jurisdiction of a suit for divorce or the judge of said court in vacation to make an allowance for suit money and counsel fees after commencement of the suit and reasonable notice given to the man, is not open to doubt, Code, 48-2-13. Thacker v. Ferguson, W.Va., 32 S.E.2d 47, and cases there cited. The power of the trial court continues after an appeal to this Court. Code, 48-2-13. Maxwell v. Maxwell, 67 W.Va. 119, 67 S.E. 379, 27 L.R.A.,N.S., 712. Reasonable notice to the man is indispensable to the validity of an order making such allowance. Thacker v. Ferguson, supra.

The return of service of the notice discloses that the notice purports to have been served in one of the modes provided for in Code 56-2-1.

The notice addressed to Earl F. Myers was sufficiently explicit and we can see no ground for objection thereto if the same was legally served on him. The inquiry herein is therefore narrowed to the question of service of the notice on Earl F. Myers. It is contended that a sheriff's return of service of a notice is a verity and cannot be contradicted. The common law rule that a return of process made by a sworn officer is a verity has been stated by this Court as follows: 'But the return of process by a sworn officer whose duty it is to serve it, showing the proper service, must be accepted as a verity. That is the settled law of this state.' R. D. Johnson Milling Co. v. Read, 76 W.Va. 557, 568, 85 S.E. 726, 730. A modification of that rule is made in the case of Nuttallburg Smokeless Fuel Co. v. First Nat. Bank, 89 W.Va. 438, 109 S.E. 766. The gist of such modification will be found in the following: 'While a sheriff's return of service may be conclusive on the parties so far as it concerns the sheriff's physical acts, and as to his recitals respecting the person on whom the service was made and the date thereof, it is not conclusive as to his conclusion of law that the person on whom service was made represented the defendant in such capacity as to authorize service on him.' Higham...