Nelson Transfer & Storage Co. v. Jarrett

• Decision Date: 10 February 1931
• Docket Number: 6904.
• Citation: 157 S.E. 46,110 W.Va. 97
• Parties: NELSON TRANSFER & STORAGE CO. v. JARRETT et al.
• Court: West Virginia Supreme Court

157 S.E. 46

110 W.Va. 97

NELSON TRANSFER & STORAGE CO. v. JARRETT et al.

No. 6904.

Supreme Court of Appeals of West Virginia.

February 10, 1931

Submitted January 28, 1931.

Syllabus by the Court.

Jurisdiction of justice must be made to appear before any presumptions of regularity and validity attach to his judgment; usual presumptions of regularity attach to judgment of justice court, where jurisdiction appears by averment in docket recital of facts, or otherwise in record (Code 1931 50--6--13).

A judgment of a justice differs from a judgment of a court of record in this, that jurisdiction of the justice must be made to appear before any presumptions of regularity and validity attach. But when jurisdiction appears by proper averment in his docket, or by recital therein of sufficient evidential facts, or otherwise in the record of the case, the usual presumptions of regularity uphold the judgment, in the absence of satisfactory proof impeaching the same.

Officer's return of service of summons may be impeached where judgment has been rendered without notice, actual, presumptive, or constructive; officer's return of service of summons may not be impeached collaterally where there has been actual notice to defendant or where defendant appeared and had opportunity to defend.

In considering an officer's return of service of a summons distinction must be drawn between cases of judgment upon no notice, actual, presumptive, or constructive, and cases where there has been actual notice but a technicality is relied upon to defeat it, or where the defendant appeared, and denied service, but had opportunity to defend. In the former instances, the return may be impeached; in the latter, it may not.

Additional Syllabus by Editorial Staff.

If proceeding involves review or annulment of judgment attack thereon is ""direct attack."

Proceeding which merely seeks avoidance of effect of judgment is "collateral attack."

Proceedings by judgment debtor for prohibition to prevent enforcement of execution against him on ground of lack of jurisdiction of justice constituted ""collateral attack" on judgment.

Error to Circuit Court, Kanawha County.

Proceedings by the Nelson Transfer & Storage Company for writ of prohibition to be directed to C. E. Jarrett, Justice of the Peace, and others. The circuit Court denied the writ, and plaintiff brings error.

Affirmed.

Taylor & Taylor, of Charleston, for plaintiff in error.

Lively & Stambaugh, of Charleston, for defendants in error.

MAXWELL J.

This writ of error involves review of the refusal of the circuit court of Kanawha county to prohibit the enforcement of an execution for $100 with interest from June 4, 1930, and costs, issued by C. E. Jarrett, Esq., a justice of the peace of said county, on a judgment rendered by him on said date in the action of Kanawha-Boone-Logan Bus Company against Nelson Transfer & Storage Company.

The summons in the action before the justice purports to have been executed on the day of its issuance by delivery by a constable of a copy thereof to W. S. Abbott, treasurer and manager of the defendant. The return of the constable was amended by him after the institution of this proceeding in the circuit court, and the amendment of course relates back to the date of service. The copy of the summons served as aforesaid was not signed by the justice, nor did it carry the date of its issuance. In their answer to the petition in prohibition the respondents aver that the summons was duly and legally issued by the justice and regularly served by the constable. In its special replication to said answer the petitioner denies that any summons in said action was ever served on it, and denies further that any summons was ever legally issued therein by the justice. The record herein discloses the fact, however, that upon receipt by the treasurer and manager of the unsigned and undated copy of the purported summons, he forthwith delivered the same to a representative of an insurance company with which the defendant carried protection against such matters as were involved in the suit. The insurance company at once delivered the paper to an attorney with request that he look into the matter. He did so, but did not make any appearance at the trial, and on the day of the trial he informed counsel for the plaintiff that he would not make appearance. Presumably the reason he did not make appearance was because he considered that the defendant had not been regularly summoned. And so, when execution was issued, he resorted to this proceeding in prohibition to prevent the enforcement of the execution.

Whether the original of the summons had been signed by the justice before its issuance, and therefore necessarily before the constable made his return thereon, does not affirmatively appear from the record. The constable says that he is unable to say definitely about that matter, but that he assumed that it was regular at the time. The justice did not testify. And though when the prohibition matter came on to be heard, the original summons carried the signature of the justice under date of the 20th of May, 1930, it does not appear from the record whether he signed it on that date or later.

In determining whether an attack upon a judgment is direct or collateral, a basic factor to be considered is whether the proceeding involves a review or annulment of the judgment, or a mere avoidance of its effects, as, for example, by preventing the enforcement of an execution predicated thereon. In the former instance the attack is direct; in the latter, collateral. A judgment debtor's effort to prevent by prohibition the enforcement of...