Paull v. Cook

• Decision Date: 02 August 1951
• Docket Number: No. 10316,10316
• Court: West Virginia Supreme Court
• Parties: PAULL, v. COOK.

Page 750

65 S.E.2d 750

135 W.Va. 833

PAULL, v. COOK.

No. 10316.

Supreme Court of Appeals of West Virginia.

Submitted April 24, 1951.

Decided May 22, 1951.

Dissenting Opinion June 13, 1951.

Rehearing Denied Aug. 2, 1951.

Syllabus by the Court.

1. Service of process of a court of record of the Commonwealth of Pennsylvania upon a resident of West Virginia by registered mail, as provided by Purdon's Pennsylvania Statutes Anno., Perm. Ed., Title 75, Vehicles, Chapter 4, Section 1201, as amended April 24, 1931, by Public Laws 50, No. 42, Section 1, is tantamount to personal service under the holding of the Supreme Court of the United States in Hess v. Pawloski, 274 U.S. 352, [47 S.Ct. 632, 71 L.Ed. 1091].

2. Under Rule 2076, Rule 2077, and Rule 2078 of the Rules of Civil Procedure, adopted July 3, 1942, by the Supreme Court of Pennsylvania, effective March 1, 1943, and contained in Purdon's Pennsylvania Statutes Anno., Perm. Ed., Title 12, 1950, Cumulative Annual Pocketpart, a cause of action against a resident of this State, resulting from a collision on a public highway of the Commonwealth of Pennsylvania between automobiles driven by a resident of West Virginia and a resident of Pennsylvania arises in the county in which the collision occurred, and the court of common pleas of that county has jurisdiction thereof.

3. Under Purdon's Pennsylvania Statutes Anno., Perm. Ed., Title 17, Courts, Section 251, the Court of Common Pleas of Washington County, Pennsylvania, is a court of general jurisdiction.

4. Where a court of common pleas of the Commonwealth of Pennsylvania, which is a court of general jurisdiction, has jurisdiction of the cause of action and of the person of a resident of the State of West Virginia by service had by registered mail, under Purdon's Pennsylvania Statutes Anno., Perm. Ed., Title 75, Vehicles, Chapter 4, Section 1201, as amended April 24, 1931, by Public Laws 50, No. 42, Section 1, its judgment is entitled to full faith and credit in the courts of this State under Article IV, Section 1, of the Constitution of the United States, and Title 28, U.S.C.A., Section 687, even where (1) there is irregularity in the form of procedure in which the Pennsylvania judgment is rendered; or (2) there is a mistake as to procedure or a noncompliance therewith; or (3) the procedure in the court of common pleas differs from that prevailing in the courts of this State, provided that the Pennsylvania proceeding has been orderly and has been according to the rules provided for the protection of private rights; or (4) where a judgment of the court of common pleas involves some contravention of the public policy of this State.

5. 'Under the full faith and credit clause of the federal constitution [United States Constitution, Article IV, Section 1], the courts of this state may not refuse to enforce a judgment of another state because it involves some contravention of the public policy of this state.' Point 4, Syl., International Harvester Company of America v. Solazo, 116 W.Va. 34 .

Wm. J. Moore, Weirton, Bloom, Bloom & Yard, and Jerome Hahn, Washington, for plaintiff in error.

Handlan, Garden, Matthews & Hess, Wheeling, W. W. Ingram, Chester, for defendant in error.

RILEY, Judge.

This is a notice of motion for judgment proceeding from the Circuit Court of Hancock County. The plaintiff, George A. Paull, a resident of Washington County, Pennsylvania, prosecutes error to the action of the circuit court in dismissing his notice of motion for judgment on motion of the defendant, O. H. Cook, a resident of Hancock County, West Virginia, the circuit court having theretofore sustained the latter's demurrer to said notice of motion, and the plaintiff not desiring to amend.

The notice of motion was based on a judgment alleged to have been entered in favor of plaintiff, George A. Paull, on the 5th day of March, 1947 (nunc pro tunc, on the 25th day of January, 1949), in the Court of Common Pleas in and for the County of Washington in the Commonwealth of Pennsylvania, said judgment being alleged to consist of $6,396.32 with interest from March 25, 1949.

The plaintiff, George A. Paull, and Cel M. Paull his wife, jointly owned an automobile, which, while being driven by the former, collided with a motor vehicle driven by the defendant on a public highway in Washington County, Pennsylvania, on January 14, 1944.

This action was instituted in Washington County, Pennsylvania, under Pennsylvania's 'Non Resident Motorist Statute' (Purdon's Pennsylvania Statutes Anno., Perm. Ed., Title 75, Vehicles, Chapter 4, Section 1201), process being served on the defendant by registered mail. See Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091, upholding the constitutionality of the above statute. See also Sipe v. Moyers, 353 Pa. 75, 24 A.2d 263; State ex rel. Charette v. District Court of Second Judicial District in and for Silver Bow County, 107 Mont. 489, 86 P.2d 750; Wax v. Van Marter, 124 Pa. Super. 573, 189 A. 537; Employers' Liability Assurance Corporation v. Perkins, 169 Md. 269, 181 A. 436.

In the Pennsylvania proceeding the Paulls filed a joint proceeding and the ad damnum clause thereof was to the effect that the plaintiff, George A. Paull, and Cel M. Paull, his wife, claim of the defendant the sum of $289, and that George A. Paull, in his own right, claims of the defendant the sum of $5,000. A jury trial having been demanded in the petition, a jury was called on March 4, 1947, and on March 5, 1947, found that the defendant, O. H. Cook, was guilty of negligence and awarded to plaintiff, George A. Paull, and Cel M. Paull, his wife, the sum of $6,000. Two days later, on March 7, 1947, and after the jury had been discharged, the ad damnum clause of their statement of claim on motion of plaintiffs was amended to read that plaintiffs claim of defendant, O. H. Cook, the sum of $289, and the plaintiff George A. Paull, in his own right, claims of the defendant, O. H. Cook, the sum of $6,000, in which statement of claim, as amended, a jury trial was requested, and on the same day the jury's verdict was amended to read: 'And now, to-wit, March 5, 1947, we the jurors empaneled in the above-entitled case, find O. H. Cook, the defendant, guilty of negligence, and award the plaintiff, George A. Paull, the sum of $6,000.00.'

On March 10, 1947, the prothonotary of Washington County, Pennsylvania, entered judgments on the original verdict in favor of George A. Paull and Cel M. Paull, his wife, against O. H. Cook for $6,000.

On October 23, 1948, the plaintiff, George A. Paull, served a notice of motion for judgment in the Circuit Court of Hancock County, based on the judgment of March 10, 1947, as the final judgment of the Court of Common Pleas of Washington County, Pennsylvania, which notice of motion for judgment was returnable to the Circuit Court of Hancock County, on November 20, 1948, in which proceeding by order of November 20, 1948, there was filed an exemplification of the record of the proceeding in Washington County, Pennsylvania, as 'Plaintiff's Exhibit No. 1.'

Thereafter on January 24, 1949, while the last-named motion for judgment was pending, and without dismissing the same or giving notice of any kind to the defendant, or his counsel in the West Virginia court, the plaintiff filed in the Court of Common Pleas of Washington County, Pennsylvania, a paper styled 'Petition to Mold Verdict and Set Aside Verdict'; and the said court of common pleas, evidently on the basis of said petition, entered the following order:

'And now, this 25th day of January, 1949, upon due consideration of the Petition herein presented and upon motion of Bloom & Bloom, Attorneys for the plaintiffs in the above entitled proceedings, it is hereby ordered, adjudged and decreed that the judgments entered by the Prothonotary of this County on March 10, 1947, in favor of George A. Paull and Cel M. Paull, his wife, against O. H. Cook, defendant, for the sum of six thousand ($6,000.00) dollars, is hereby set aside and stricken from the record and the Prothonotary, Robert Crawford, is hereby ordered to set aside the judgments so entered and strike the same from the record.

'It is further Ordered and Decreed that the Verdict in the above entitled proceeding be moulded and reformed Nunc Pro Tunc to read as follows:

'And now, to-wit, March 5, 1947, we the jurors impaneled in the above entitled case find O. H. Cook, the defendant, guilty of negligence and award the plaintiffs, George A. Paull and Cel M. Paull the sum of $289.00 and award the plaintiff in his own right, George A. Paull, the sum of $5711.00 and the Prothonotary is hereby Ordered to enter the said Verdict on the record in the above entitled proceedings.

'It is further Ordered and Decreed that the said Prothonotary, Robert Crawford, is hereby ordered to enter judgments upon the said verdict accordingly. Cummins, J.'

Notwithstanding the pendency of the 1948 notice of motion for judgment, the defendant, O. H. Cook, was on the 15th day of March, 1949, served with two notices of motion for judgment, each returnable on April 12, 1949, the first at the instance of George A. Paull, and the second by George A. Paull and Cel M. Paull, in the amounts of $6,396.32 and $323.68, respectively, representing $5,711 and $289, totalling $6,000, with accumulated interest. On the return day plaintiff filed 'Plaintiff's Exhibit No. 1', together with a copy of the judgment and record, which had been previously filed in the 1948 motion for judgment proceeding, now marked as 'Exhibit No. 2' in the second proceeding.

On April 12, 1949, the defendant filed separate demurrers, in which the validity of the Pennsylvania proceedings and the judgment thereon were challenged, and in which demurrers it was contended that the judgment sued on was void.

In the instant proceeding, i. e., George A. Paull v. O. H. Cook, the Circuit Court of Hancock County submitted a memorandum of opinion on June 25,...