New Eagle Gas Coal Co. v. Burgess

• Citation: 90 W.Va. 541
• Court: Supreme Court of West Virginia
• Decision Date: 21 March 1922
• Parties: New Eagle Gas Coal Co. v. Matt Burgess.

90 W.Va. 541

New Eagle Gas Coal Co.

v.Matt Burgess.

Supreme Court of Appeals of West Virginia.

Submitted March 14, 1922.

Decided March 21, 1922.

1. Judgment May be Attacked Directly or Collaterally Where Founded Upon a Void Process.

A judgment founded upon a process void because not issued against the person intended to be sued is a nullity and may be assailed either directly or collaterally. (p. 545).

2. Judicial Sales Purchaser is Charged With Everything Appearing on Face of Record Affecting Title.

A purchaser at a judicial sale is charged with everything appearing on the face of the record affecting the title acquired by him. (p. 545).

3. Same In Cases of Default Judgment the Purchaser Must See if the Writ Forms a Proper Foundation for the Judgment.

In all cases where there is a judgment by default, the writ on which it is based is a part of the record, so a purchaser at a judicial sale under a default judgment must look not only to the record of the judgment but also to the writ to see whether there is a proper foundation for the judgment. (p. 545).

Error to Circuit Court, Nicholas County.

Action by the New Eagle Gas Coal Company against Matt Burgess in detinue for the possession of one electric generator and a steam engine. Verdict for defendant, plaintiff's motion for new trial denied, and plaintiff brings error..

Reversed and remanded.

Alderson &Breckenridge and Wm. T. Lively, for plaintiff in error.

G. G. Duff, and H. C. Hill, for defendant in error.

Meredith, Judge:

This is an action in detinue for the recovery of the possession of one electrical generator and a steam engine. The jury returned a verdict for the defendant. The court re- fused to set aside the verdict and grant plaintiff a new trial and the case is here on writ of error.

The defendant claims title to the property through his purchase at a sale under an execution, and plaintiff attacks the validity of the judgment upon which the execution was issued.

The Eagle Gas Coal Company, a corporation, in 1917, was the owner of a coal mining lease-hold in Nicholas County, under a lease from the Federal Coal Company, and had a mine in operation. On October 6, 1917, it leased four houses from Benjamin Darlington, for the term of thirteen months the rent for the term to be $240, $120 to be paid November 1, 1917, and the balance to be paid in monthly payments of $10.00 each. The $120 was paid and about December 15, 1917, Darlington conveyed these four houses to the Bank of Gauley, and the Bank appointed him agent to collect the rents. The houses appear to have been occupied by employees of the Eagle Gas Coal Company. No further rents appeav to have been paid. In August, 1918, the Eagle Gas Coal Company sold, and conveyed its mining lease-hold to another corporation called New Eagle Gas Coal Company. The purchaser did not assume any of the selling company's debts, nor does it seem to have taken over all the seller's property. It took possession of the mining property and operated it till about. March 1, 1918. The two corporations were not only distinct so far as their organizations were concerned, but no one interested in the one was in any wise interested in the other. There was no interlocking as to stockholders, directors or officers.

The purchasing company in the fall of 1918 bought and had shipped for its plant the electric generator and steam engine in controversy. This property was unloaded on a private siding not owned by the company, where it remains.

About March 1, 1919, when the plant shut down, the New

Eagle Gas Coal Company employed J. V. Bailey to look

after its mules, to collect its rents and to make collection of

some claims. About March 5, 1919, the Bank of Gauley

sued out a distress warrant against the Eagle Gas Coal

Company for rent. Just what this was levied on does not appear, but some sort of levy was made, and the constable, who had the warrant, demanded and obtained the keys to the houses of the company, from Justice Bailey. Justice Bailey was then employed by the constable to look after the property for him, and he says that thereafter he did not represent the New Eagle Gas Coal Company, unless it would be as justice of the peace in collecting some claims due it.

The bank, probably seeing that it could not collect full payment through its distress warrant, on March 8, 1919, sued out an attachment against the Eagle Gas Coal Company before Justice J. M. Grose for $230.62 for rent. The New Eagle Gas Coal Company had never assumed the liability of the Eagle Gas Coal Company under the Darlington lease, but it had leased some other houses from the bank; just what they were or what rent was to be paid is not clear; but the whole amount of this rent could have been very little, if anything at all, Darlington, as agent of the bank swore out the attachment, and as a basis of its claim filed the original lease between him and the Eagle Gas Coal Company, covering the four houses he had conveyed to the bank, and his affidavit states "that the claim of the plaintiff against the Eagle Gas Coal Company, a corporation, defendant, is for money due for rental of four certain houses.''

It appears that an account was also filed, but in the trial of the present case this paper was missing and its contents were not proved. The following return was made on the summons:

"Received this writ March 8, 1919, served by delivering a copy of this writ with indorsements thereon to J. V. Bailey, agent for the within named Eagle Gas Coal Co., a corporation, in person, in said Nicholas County.

John W. Mullins, Special Constable.

Subscribed and sworn to before me this the 18th day of March, 1919.

C. A. Neal, Notary Public,

Nicholas County, W. Va. My commission expires March 14, 1926."

On the return day, March 22, 1919, on motion of plaintiff, the summons was amended by inserting the word "New*' so as to make the "New Eagle Gas Coal Company"' defendant instead of "Eagle Gas Coal Company," as originally issued. The same change was made in the order of attachment, but no change was made in the return on the summons. There is some evidence tending to show that Justice Bailey appeared for the New Eagle Gas Coal Company on the return day, and that it was he who suggested the change in the name. It is clear, however, that he was not authorized by that company to appear for it, nor did he intend to do so. He was a justice of the peace and could not legally act as agent or attorney for any party in the case without committing a crime, which, we are sure, he did not do nor intend to do. Sec. 22, chapter 50, Code.

Justice Grose entered judgment on March 22, 1919, in favor of the Bank of Gauley, for $236.97, and costs. No action was taken on the attachment further than to levy it on: 1 engine and dynamo; 1 lot or stock of merchandise; and store fixtures, such as scales, show cases, refrigerators; 2 mules; 1 horse; about 30 mine care; 1 pump; 1 pair coal scales, and one set of blacksmith tools, appraised by the constable at $5340. Execution was issued on the judgment, erroneously stating that the judgment was rendered March 24, instead of...