Norfolk & W. Ry. Co v. Sutherland

• Decision Date: 21 June 1906
• Citation: 105 Va. 545,54 S.E. 465
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. SUTHERLAND.

54 S.E. 465

105 Va. 545

NORFOLK & W. RY. CO.

v.SUTHERLAND.

Supreme Court of Appeals of Virginia.

June 21, 1906.

1. Process ——Amended Declaration — New Summons—Service.

Where defendant had appeared and was properly in court when the cause was remanded to rules to enable plaintiff to file an amended declaration, the cause, after the filing of the amendment, might be regularly proceeded with, by rule to plead, either to an office judgment or an issue, without the service of a summons to answer the amended declaration.

[Ed. Note.—For cases in point, see vol. 40, Cent. Dig. Process, § 5.]

2. Appearance—Process—Service—Waiver.

Where defendant had appeared generally after an amendment of the declaration, it thereby waived all questions of service of process on such amended declaration.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appearance, § 91.]

3. Pleading — Declaration—Amendment — Demurrer.

Where, after demurrers had been sustained to the original and first amended declarations, a second amended declaration was filed which did not refer to the former declarations, the sufficiency of such second amended declaration on demurrer must be determined by its own averments.

4. Same—Contracts—Reference in Pleading.

A contract not under seal cannot be made a part of a declaration by oyer.

[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Pleading, § 922.]

5. Carriers—Transportation of Live Stock —Failure to Deliver—Action—Declaration.

Plaintiff alleged delivery of a car load of sheep to defendant, a common carrier, for transportation under a live stock contract requiring safe delivery to defendant's connecting carrier; that defendant did not safely carry the stock, but, by reason of defendant's negligence and that of its connecting carrier, plaintiff's stock was not delivered, but that another car load containing other and less valuable sheep was delivered to the consignee as and for plaintiff's stock. Plaintiff also alleged that the bill of lading required the shipper to be at his sole risk and expense of caring for the stock during transportation, but that defendant waived such provision by refusing to permit plaintiff to perform such service and assuming such duty itself, and that after notice defendant made no proof that the loss did not occur while the sheep were in defendant's care. Held, that such declaration stated a cause of action.

6. Same — Bill of Lading — Provisions— Waiver.

A bill of lading for the transportation of sheep provided that the shipper should bear the sole risk and expense of caring for the stock during transportation, but there was written across the face of the contract: "To be fed and watered at the expense of shippers. Loaded at 4 p. m. No one in charge." Held, that the indorsement constituted a waiver of the condition that the shipper should care for the stock and shifted that burden to the carrier.

7. Trial—Evidence—General Objections.

Where portions of a contract offered in evidence sustained the declaration and were admissible, a general objection to the introduction of such contract, in that it did not sustain the allegations of the declaration, was properly overruled.

[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trial, §§ 194-210.]

Error to Circuit Court, Russell County.

Action by E. Sutherland against the Norfolk & Western Railway Company. From a judgment in favor of plaintiff, defendant brings error. Affirmed.

Burns & Burns, for plaintiff in error.

Routh & Routh, for defendant in error.

BUCHANAN, J. Because of a variance between the proof and the allegations of the declaration in this cause, which is an action of assumpsit instituted by E. Sutherland against the Norfolk & Western Railway Company, the cause was remanded to rules the May term, 1904, with leave to the plaintiff to amend his declaration. At the first August rules, 1904, an amended declaration was filed and common order made, and at the second August rules the common order was confirmed and writ of inquiry directed. The cause was placed upon the docket for the September term of the court.

At that term the following order was entered: "This day came the parties by their attorneys, and upon the calling of the cause it is continued until the next term of the court." At the November term of the court, the defendant moved the court to remand the cause to rules because process had not been issued upon the amended declaration filed at the August rules; but the court being of opinion that it was not necessary to issue process on that declaration in order to mature the cause, overruled the motion to remand. This action of the court is assigned as error.

The motion of the defendant to remand was properly overruled. The defendant had appeared, and was properly in court, when the cause was remanded to rules at the May term, 1904, to enable the plaintiff to file an amended declaration, upon which it is insisted that process ought to have issued. The proceedings at rules In a case like this seem not to be the same in the different courts of the state. In some circuits, upon the filing of the amended declaration, a summons is issued and served upon the defendant to answer the same; in other circuits the defendant is treated as having notice of the order of the court remanding the cause to rules, and no summons to answer the amended declaration is issued. We have not been cited by counsel to, nor have we in our own investigation found, any decision of this court which passes directly upon the question of what is the proper practice in such a case.

In the case of Couch v. Fretwell's Adm'r. 10 Leigh, 579, 580, Judge Tucker, the learned president of the court and a teacher of law, in discussing the procedure in a case which had been remanded to rules with leave to the plaintiff to amend his declaration, says "The cause, having been remanded to rules to enable the plaintiff to amend his declaration, ought to have been there regularly proceeded in, upon the filing of the declaration, by rule to plead, etc. to an office judgmentor an issue." The language of Judge Tucker shows that he did not think that after the filing of the amended declaration new process should issue, for he says that upon the filing of the amended declaration the regular procedure would be a rule to plead, which would not be proper if process had to issue and be served upon the defendant after the amended declaration was filed before he was required to plead. See, also, Alvis v. Johnson, 1 Va. Dec. 381.

The reasons in favor of the practice that new process is not necessary in such a case seem to us to be much stronger than those against it. The defendant is already a party to the action and in court. The object of the writ of summons is to apprise the defendant of the nature of the proceeding against him. New River Min. Co. v. Painter, 100 Va. 507, 509, 42 S. E. 300, and cases cited. Where he is in court and knows what the proceeding is, why should the plaintiff be put to the expense and delay of having new process issued and served upon the defendant to inform him of what he already knows? Again, if it be necessary to issue and serve process upon him to answer the amended declaration, it might frequently result in defeating the plaintiff's action entirely, because the defendant might be a nonresident of the state, upon whom such process could not be served; or he might be a resident of another county or city of the state upon whom process could not be executed, under the prohibition of section 3220 of the Code of 1904 that process against a defendant to answer any action brought under section 3215 of the Code of 1904 shall not be directed to an officer of another county or corporation than that wherein the action is brought, except in certain cases.

The proper practice in such a case is, we think, for the plaintiff to file his amended declaration at the first rules after the order of the court remanding the case to rules, and then, without new process, for the cause to be regularly proceeded in at rules in the manner provided by sections 3239 and 3240 of the Code of 1904. See Couch v. Fretwell, supra; Alvis v. Johnson, supra; 1 Rob. Pr. (old), 233; 4 Min. Inst. (3d Ed.) 684.

But even if new process had been necessary when the cause was remanded to rules, the court did not err in overruling the defendant company's motion. If any objection was to be made by the defendant as to the process or want of process, it ought to have been made before there was a general appearance. At the September term of the court the defendant had appeared, as the order of the court...