Ratjb v. Otterback

• Decision Date: 16 February 1893
• Citation: 89 Va. 645,16 S.E. 933
• Parties: RATJB v. OTTERBACK et al.
• Court: Virginia Supreme Court

16 S.E. 933

89 Va. 645

RATJB

v.OTTERBACK et al.

Supreme Court of Appeals of Virginia.

Feb. 16, 1893.

Whits—Validity—Service —Jurisdiction over Nonresidents—Appearance of Attorneys.

1. A writ of scire facias was properly quashed which (ummoned defendants "before

the ——of our said circuit court, " and also

because it was returnable at rules "on the first day of the next term, (June term,) 1889, " the first day of which, according to the notice of the writ, was "the second Monday" of June, whereas there were no rules until the third Monday.

2. The service of the writ was also void because, defendants being nonresidents, the process, if not executed on them in the county, must under Code, §§ 3215, 3220, have been executed at least 10 days before the return day, whereas it did not go into the sheriff's hand until June 8th, and the rules were on the 17th.

3. A service on one defendant in Washington, by a private individual, could only have the effect of an order of publication, which would entitle him to 15 days.

4. The affidavit of service was not good where it failed to show, as required by Code, § 3232, that the affiant was not interested in the matter in controversy.

5. Where the writ describes simply a personal judgment at Jaw, and there is no demand for an attachment against property, and there is nothing in the proceeding indicating that the defendants have property in the state, the court has no jurisdiction on service of the writ in the District of Columbia, which could only have the effect of an order of publication, and would not warrant a personal judgment.

6. Testimony of one of defendants was properly admitted, to the effect that he never knew either of the attorneys who appeared in tha original chancery proceedings in which the decree was rendered, that he never employed them, and that he never heard of the suit until recently, where, unless counsel did actually appear for him with his authority, the court never acquired jurisdiction.

7. Where the facts are submitted to the trial court, its finding as to the weight and sufficiency of the evidence is equivalent to the verdict of a jury.

Error to circuit court of city of Alexandria.

Action by George T. Raub against Henry B. Otterback and Benjamin L. Otter-back to enforce a decree. Judgment was entered for defendants, and plaintiff brings error. Affirmed.

H. O. Claughton, for plaintiff in error.

W. Willoughby, for defendants in error.

Fauntleroy, J. This is a writ of error to a judgment of the circuit court of the city of Alexandria rendered on the 20th day of March, 1890, in a suit in said court pending, in which George T. Raub is plaintiff, and Henry B. Otterback and Benjamin L.Otterback are defendants. On January 20, 1862, one John Crumbaugh recovered a judgment in the supreme court of the District of Columbia against Henry B. Otterback and Benjamin L. Otterback for $10,000, to be released on payment of $3,-770.95, with interest on various parts of the last-mentioned sum, from various dates, and costs. 8Mackay, l. This judgment was assigned to the use of the plain-' tiff, Raub, in the term of its rendition. In 1873 the plaintiff, Raub, instituted proceedings in equity on this judgment in the circuit court of Fairfaxcounty, Va., and to that end he filed, on July 30, 1873, an affidavit, reciting the indebtedness of the defendants Henry B. Otterback and Benjamin L. Otterback on the judgment aforesaid in the sum of $3,770.95, etc., and that the said Henry B. Otterback is a nonresident of the state of Virginia, and affiant believes that he has estate within the county of Fairfax, to wit, a contingent interest in the estate of Philip Otterback, deceased, lying in said county. Upon this affidavit an order of publication against Henry B. Otterback was made, stating the object of the suit to be to obtain a judgment against the defendants for the sum of $3,770.95, etc., and ordering Henry B. Otterback to appear here within one month after due publication hereof, and do what is necessary to protect his interest. At the same time summons was issued to both the defendants to appear at September, 1873, rules. The order of publication does not appear by the record to have ever been published, and the only return of the original summons was, "Executed upon the tract of land within mentioned, August 29, 1873." It thus appears that there was no effective return of the summons as to either of the defendants so far as the suit is against them personally, and not by way of attachment, and this, notwithstanding the bill of complaint asserted a personal indebtedness by both of the defendants to the plaintiff. The bill was filed in October, 1873, when a so-called "alias subpoena" against Benjamin L. Otterback was ordered or issued. In November, 1878, the cause was referred to a commissioner to ascertain and report the amount due complainant from the defend ants, what real estate is liable by reason of the attachment sued out by complainant, the defendants' interest in said real estate, etc. On March 24, 1879, the commissioner gave notice of a hearing under the order of reference, which notice is indorsed: "Service accepted. D. M. Chichester, Attorney for Complainant. Wells & H. W. T., for Defendants." The commissionerreported the amount due the complainant to be$7,939.60, and theinterest of the defendants (not Henry alone) In the real estate of their father, Philip Otterback, deceased, to be purely contingent, and without locating that real estate. Upon June 11, 1879, the court confirmed this report, and decreed, not that any interest of the defendants be sold, but that the complainant do recover of the defendants, (not Henry alone,) and that the defendants (not Henry alone) do pay to the complainant the sum of $7,939.60, with interest on $3,770.95, part thereof at the rate of 0 per cent, per annum from the 1st day of June, 1879, till paid, and the costs. No execution was issued or asked for on this decree, and on June 5, 1889, the plaintiff sued out a writ of scire facias in terms upon a judgment alleged to have been recovered on June 10, 1879, a different date from the date of the decree. This was returned as follows: "Came to hand, June 8, 1889. The within-named defendants have left this state, and now reside in Washington city." A copy seems to have been served upon Henry in Washington, D. C, on June 7, 1889, by one Wright. On August 15, 1889, another writ of scire facias, in form exactly the same as the first, was issued, which purports to have been served by one Gordon...