Nixon v. Rowland, 3756
| Decision Date | 12 March 1951 |
| Docket Number | No. 3756,3756 |
| Citation | 63 S.E.2d 757,192 Va. 47 |
| Court | Virginia Supreme Court |
| Parties | BEATRICE NIXON, ADMINISTRATRIX OF THE ESTATE OF WILLIAM T. GRIFFIN, AN INFANT v. HAMILTON ROWLAND, SR., AND HAMILTON ROWLAND, JR. Record |
Louis B. Fine, for the plaintiff in error.
Major M. Hillard, for the defendants in error.
William T. Griffin, an infant nine years and ten months of age, came to his death as a result of injuries sustained by being struck by an automobile operated by Hamilton Rowland, Jr. Beatrice Nixon qualified as administratrix of the estate of the infant, and as such instituted this proceeding by notice of motion for judgment against Hamilton Rowland, Sr. and Hamilton Rowland, Jr., father and son, alleging that, at the time of the accident, the automobile was being operated by Hamilton Rowland, Jr., 'in and upon the business of Hamilton Rowland, Sr., and as his agent.' Personal service of the motion was had on Hamilton Rowland, Sr., but not on his son.
On June 3, 1946, the following court order was entered:
Hamilton Rowland, Sr., filed an affidavit denying ownership, operation, or control of the automobile at the time of the accident.
On June 30, 1947, and December 18, 1947, orders were entered, each reading:
'This day came the parties by their attorneys, and on motion of the plaintiff, by counsel; It is ordered that this case be continued generally.'
The next order was dated March 10, 1949, more than three years after the accident:
'This day came the plaintiff by Louis B. Fine, Attorney and the defendant John Hamilton Rowland, Jr., by his Attorney Major M. Hillard and appeared specially and moved to dismiss proceedings as to John Hamilton Rowland, Jr., which motion the Court does take time to consider and does continue until April 6, 1949.'
The case was tried on December 21, 1949, and the final judgment order was in the following language:
'This day came the parties in person and by counsel, and the defendants by counsel moved the Court to abate Hamilton Rowland, Jr., from this case on the grounds that Hamilton Rowland, Jr., has not been served notice, and that he, Hamilton Rowland, Jr., was in the Armed Services and in France at the time the Notice of Motion was served, which motion the Court doth sustain and the plaintiff duly excepted; thereupon came a jury, to-wit: * * *, and after having fully heard the plaintiff's evidence, the defendant by counsel, and in absence of the jury, moved the Court to strike the evidence of the plaintiff upon the grounds that the defendant, Hamilton Rowland, Sr., did not own the automobile and that Hamilton Rowland, Jr., was not in and upon the business of the said Hamilton Rowland, Sr., or as his agent, which motion the Court sustained, and the plaintiff by counsel duly excepted; thereupon the jury being so instructed, retired to their room to consult of a verdict, and after sometime, returned into Court having found the following verdict, 'We the jury find for the Defendant."
The assignments of error present two questions for our determination. The first is whether the court erred in abating the action as to Rowland, Jr., because of lack of service of the notice of motion on him personally. The second is whether the evidence showed the relationship of principal and agent between the defendants.
It is conceded that a general appearance in a case is a waiver of process, equivalent to personal service of process, and confers jurisdiction of the person on the court; but to have this effect the appearance must have been authorized. Beck v. Semones, 145 Va. 429, 134 S.E. 677; Norfolk, etc., R. Co. v. Sutherland, 105 Va. 545, 54 S.E. 465; Burks' Pleading and Practice, 3rd Ed., page 55; 2 M.J., Appearances, section 14, page 9; 6 C.J.S., Appearances, section 17, page 47 et seq.; 3 Am. Jur., Appearances, section 3, page 783 et seq.
Hamilton Rowland, Jr., contends that the general appearance of M. M. Hillard on his behalf was unauthorized, and that the burden of showing authorization was on the plaintiff. The record contains no evidence on this question. In the brief of defendants filed by Mr. Hillard, their counsel, it is stated that the evidence of Rowland, Jr., and Mr. Hillard, relating to that question, was taken in the chambers of the court and inadvertently omitted from the record by the court reporter. Their version of that evidence is as follows:
Mr. Hillard said that soon after the service of the notice of motion on Rowland, Sr., the latter came to him, brought the notice of motion, and asked him to represent both of the defendants; that accordingly he appeared generally on June 3, 1946, and pleaded the general issue for both defendants; that he never saw Rowland, Jr., nor had any communication with him until the latter returned from service overseas, a year and a half later; that Rowland, Jr., and his father then employed Mr. Tom E. Gilman as counsel to assist in the trial of the case; that Rowland, Jr., came to him and informed him that he, Rowland, Jr., had never been served with process; and, he, Hillard, thereafter appeared specially on behalf of said Rowland, Jr., as shown by the record. Rowland, Jr., said that he went overseas in the Armed Services shortly after the accident; that he had not employed or communicated with any counsel; that he had not communicated with his father about employing counsel; and did not employ counsel until his return from overseas.
It does not appear that Rowland, Sr., an available witness, testified about the employment of counsel, or disavowed authority from his son to employ counsel. The question was not raised until 'a considerable time after' the return of Rowland, Jr., from overseas. In the meantime, the continuance orders, entered with the recorded consent of counsel, lulled the plaintiff into the belief that Rowland, Jr., had become subject to the jurisdiction of the court, and preserved the right of that defendant to contest the case on its merits upon his return home.
Regardless of the admissibility of the statements, extrinsic of the record, it is not disclosed whether they were made under oath, or whether Rowland, Jr., knowing that his father had employed counsel for both defendants, assented to such employment.
The judgment order of December 21, 1949, recites that the grounds of the motion to abate the action as to Rowland, Jr., were 'that Hamilton Rowland, Jr., has not been served notice, and that, he, Hamilton Rowland, Jr., was in the Armed Services and in France at the time the notice of motion was served.' The grounds recited do not question the recorded general appearance, which was equivalent to personal service of process, wherever the defendant was located.
There was no motion for withdrawal of the alleged unauthorized appearance, or amendment of the record. There was no claim or evidence that Mr. Hillard, an experienced attorney of ability and high character, counsel for both defendants in the trial of the case and before us, was, before his special appearance for Rowland, Jr., an interloper, and wrongfully acted for that defendant.
The authorities seem to be agreed that an appearance by a regular attorney is presumed to be authorized; but that the presumption is rebuttable.
In 3 Am. Jur., Appearances, section 9, page 787, this is said:
In 2 M.J., Appearances, section 10, page 5, we find:
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...the result of some neglect or wrong at the time and in respect to the very transaction out of which the injury arose." Nixon v. Rowland, 192 Va. 47, 63 S.E.2d 757, 761; Meek v. Graybeal, 195 Va. 381, 78 S.E.2d 593. (Emphasis supplied by Virginia court.) Further, the law of Virginia is that ......
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...waiver of process, equivalent to personal service of process and confers jurisdiction of the person on the court." Nixon v. Rowland, 192 Va. 47, 50, 63 S.E.2d 757, 759 (1951). (Emphasis added). See also Lyren v. Ohr, 271 Va. 155, 158-59, 623 S.E.2d 883, 884 (2006); Clem v. Given's Ex'r, 106......
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