Petty v. Friok Co

• Decision Date: 13 February 1890
• Citation: 10 S.E. 886,86 Va. 501
• Parties: Petty v. Friok Co.
• Court: Virginia Supreme Court

10 S.E. 886

(86 Va. 501)

Petty

v.Friok Co.

Supreme Court of Appeals of Virginia.

Feb. 13, 1890.

Attachment—Service of Process—Trial—Jeofails—Special Appearance.

1. Code Va. 1887, § 2979, provides that, when an attachment "is returned executed, if the defendant has not been served with a copy of the attachment, or with process in the suit wherein the attachment issued', an order of publication shall be made against him." Section 3231 provides that, in addition to the publication in a newspaper, the order shall be posted by the clerk at the front door of the court-house on the first day of the next court after it is entered. Held, that where the publication was made before the return, and the order was not posted, the attachment was properly abated.

2. Where defendant in assumpsit has filed no plea, and no issue has been joined, the only question is the quantum of damages, and that only after an office judgment and an order for inquiry of damages, and it is error to try the case as if issue had been joined, and allow defendant to cross-examine and to demur to the evidence.

3. Such error is not cured by the statute of jeofails, for that statute cures misjoinder or informal joinder of issue, but not non-joinder or want of issue altogether.

4. Where an action has been erroneously proceeded with as if issue had been joined, it is not a proper case for the application of the rule that when, on a survey of the whole record, the judgment appears to be substantially right, it will be affirmed, notwithstanding an error may have been committed which has not operated to the prejudice of appellant.

5. An appearance in a motion to quash an attachment because of irregular execution of process is not an appearance to the action whereby alleged defects are waived.

Hill & Jeffries and W. L. Jeffries, for plaintiff in error. Rixey & Barbour, for defendant in error.

Lewis, P. On the 18th day of January, 1888, the plaintiff in error commenced an action of assumpsit in the circuit court of Culpepper county against the Frick Company, a corporation chartered under the laws of the state of Pennsylvania, and on the same day sued out a foreign attachment, which was returned levied on certain effects of the defendant company in the possession of one Winston, in the said county. An order of publication was also made on the same day, and the attachment appears to have been executed one week later, to-wit, on the 25th of the same month. The declaration was filed at the ensuing February rules, but no further proceedings at the rules appear to have been had. At the following March term of the circuit court the defendant company moved to abate the attachment—First, because the order of publication had been prema-turely made, i. e., before, instead of after, the attachment was returned executed, the defendant not having been served with a copy of the attachment, or with process in the action; and, secondly, because the order had not been posted at the front door of the court-house, as the statute (now section 3231 of the Code) requires. The motion, however, was overruled, and the defendant excepted. A jury was thereupon impaneled "to ascertain if anything was due from the defendant company to the plaintiff, " and after the latter had introduced a witness, and examined him in chief, the defendant, without offering any plea, and not having filed any in the cause, and proclaiming, by its attorney, that it did not appear except for the purpose of moving to quash, offered to cross-examine the witness, to which the plaintiff objected; but the court overruled the objection, and permitted the defendant to cross-examine the witness, to which action of the court the plaintiff excepted. After the evidence for the plaintiff had been closed, the defendant, still proclaiming that it appeared only for the purpose of moving to quash the attachment, demurred to the evidence, and the court, against the objection of the plaintiff, compelled him to join in the demurrer, whereupon he again excepted. The jury thereupon returned a verdict in favor of the plaintiff for $572.88, subject to the opinion of the court on the demurrer; but the court, being of opinion that the plaintiff was not entitled to recover, entered a judgment against him for costs, and abated the attachment, whereupon the case, by a writ of error, was brought to this court.

Section 2979 of the Code...