Schweppes U.S. A. Limited v. Kiger, No. 13555

CourtSupreme Court of West Virginia
Writing for the CourtCAPLAN
Citation158 W.Va. 794,214 S.E.2d 867
PartiesSCHWEPPES U.S.A. LIMITED, a corporation v. Marvin R. KIGER, Judge, etc., et al., and Glenna Cather, et al.
Decision Date20 May 1975
Docket NumberNo. 13555

Page 867

214 S.E.2d 867
158 W.Va. 794
SCHWEPPES U.S.A. LIMITED, a corporation
v.
Marvin R. KIGER, Judge, etc., et al., and Glenna Cather, et al.
No. 13555.
Supreme Court of Appeals of West Virginia.
May 20, 1975.

Page 868

Syllabus by the Court

1. In order to render a valid judgment or decree, a court must have jurisdiction both of the parties and of the subject matter and any judgment or decree rendered without such jurisdiction will be utterly void.

2. A foreign corporation not authorized to do business in this state is amenable to service of process and subject to the jurisdiction of the courts of this state if such process is served upon and accepted by the state auditor Only in the three instances described in the third paragraph of Code, 1931, 31--1--71, [158 W.Va. 795] as amended, namely, (a) if such corporation makes a contract to be performed in whole or in part, by any party thereto, in this State; (b) if such corporation commits a tort in whole or in part in this State; or, (c) if such corporation manufactures, sells, or supplies any product which causes injury to a person or property within this State.

Robert T. Donley, Hale J. Posten, Albert M. Morgan, William H. Higinbotham, Morgantown, for relator.

Wilson, Frame & Rowe, Clark B. Frame, Morgantown, for respondents Cather.

CAPLAN, Justice:

In this original proceeding in prohibition the petitioner, Schweppes U.S.A. Limited, a corporation, seeks to prohibit the respondents, Marvin R. Kiger, Judge of the Circuit Court of Monongalia County; Jean Friend, Clerk of the Circuit Court of said county; Charles J. Whiston, Sheriff of said county; and, Glenna Cather and Carl Cather, her husband, from further proceeding in an action instituted in the above court, designated Glenna Cather and Carl Cather v. Schweppes U.S.A. Limited, or from any attempt to enforce the alleged void judgment rendered therein. This Court on January 27, 1975 awarded a rule returnable February 11, 1975. Subsequently, the case was continued to April 22, 1975 for the taking of depositions upon which date, upon the briefs and oral arguments of counsel for the respective parties, the case was submitted for decision.

Giving rise to this proceeding is the factual situation revealed by the record and now described. Respondents Glenna and Carl Cather, residents of Morgantown, West [158 W.Va. 796] Virginia, while driving from said city to the eastern seashore for a holiday

Page 869

stopped in Easton, Maryland where they stayed overnight. While there they purchased from a retail store four quarts of Schweppes tonic water. The following morning, May 25, 1974, they proceeded by automobile and boat to Hog Island, Virginia, their destination, taking with them the said bottles of tonic water. The Cathers were in the company of two other couples from Morgantown.

Upon their arrival at Hog Island, Glenna Cather was unpacking their personal effects during which time she had occasion to handle one of the bottles of tonic water. As she placed it on the floor the metal cap on the bottle blew off with great force. The cap struck Mrs. Cather in the right eye causing severe and perhaps inrreparable damage. She was hospitalized and continues to suffer serious consequences from that unfortunate accident. While we in no manner minimize the extent of her injuries, further consideration of her condition resulting therefrom is not pertinent to this proceeding.

Subsequently, on the 7th day of August, 1974 Glenna and Carl Cather instituted an action against Schweppes U.S.A. Limited in the Circuit Court of Monongalia County, West Virginia, charging Schweppes, the petitioner herein, with a breach of implied warranty and negligence and seeking damages in the sum of $750,000.00 for the injury to Mrs. Cather's right eye. For the purpose of obtaining service on Schweppes the plaintiffs served process on the Auditor of the State of West Virginia, ostensibly under the provisions of Code, 1931, 31--1--71, as amended. Schweppes, for reasons disputed in this record, did not answer or otherwise defend against the complaint of the Cathers. By reason thereof the plaintiffs in this action filed a motion for a default judgment under the provisions of 55(b)(2), West Virginia Rules of Civil Procedure. Their motion for such judgment was granted.

Thereafter, on September 13, 1974 the plaintiffs requested and were granted a hearing on the question of [158 W.Va. 797] damages. This hearing was held before the court, a jury having been expressly waived. At the hearing there was adduced the testimony of the plaintiffs, two medical witnesses and a professor of business administration from West Virginia University who testified as an...

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11 practice notes
  • Easterling v. American Optical Corp., No. 26566.
    • United States
    • Supreme Court of West Virginia
    • March 24, 2000
    ...matter and any judgment or decree rendered without such jurisdiction will be utterly void." Syl. pt. 1, Schweppes U.S.A. Ltd. v. Kiger, 158 W.Va. 794, 214 S.E.2d 867 We have clearly communicated that "[i]n each case the reasonableness of a state's exercise of jurisdiction over a nonresident......
  • Leslie Equipment v. Wood Resources, L.L.C., No. 34712.
    • United States
    • Supreme Court of West Virginia
    • October 30, 2009
    ...personam jurisdiction will render the default judgment at issue void and unenforceable. See Syl. Pt. 1, Schweppes U.S.A. Ltd. v. Kiger, 158 W.Va. 794, 214 S.E.2d 867 (1975) (holding that order rendered without personal and subject matter jurisdiction renders decree "utterly void"); see also......
  • Bowers v. Wurzburg, No. 25842.
    • United States
    • Supreme Court of West Virginia
    • July 9, 1999
    ...as process duly served on such corporation in this State.[15] (Footnote added). Accord Syl. pt. 2, Schweppes U.S.A. Ltd. v.. Kiger, 158 W.Va. 794, 214 S.E.2d 867 Also applicable to the case sub judice are certain aspects of federal law. In addition to the pronouncements of state law governi......
  • S. R. v. City of Fairmont, No. CC922
    • United States
    • Supreme Court of West Virginia
    • July 29, 1981
    ...contacts within this State at the time of said injury." 4 We believe that Syllabus Point 2 of Schweppes U.S.A. Limited v. Kiger, W.Va., 214 S.E.2d 867 (1975), is unduly restrictive in confining minimum contacts to the three enumerated categories contained in the preceding section of W.Va.Co......
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11 cases
  • Easterling v. American Optical Corp., No. 26566.
    • United States
    • Supreme Court of West Virginia
    • March 24, 2000
    ...matter and any judgment or decree rendered without such jurisdiction will be utterly void." Syl. pt. 1, Schweppes U.S.A. Ltd. v. Kiger, 158 W.Va. 794, 214 S.E.2d 867 We have clearly communicated that "[i]n each case the reasonableness of a state's exercise of jurisdiction over a nonresident......
  • Leslie Equipment v. Wood Resources, L.L.C., No. 34712.
    • United States
    • Supreme Court of West Virginia
    • October 30, 2009
    ...personam jurisdiction will render the default judgment at issue void and unenforceable. See Syl. Pt. 1, Schweppes U.S.A. Ltd. v. Kiger, 158 W.Va. 794, 214 S.E.2d 867 (1975) (holding that order rendered without personal and subject matter jurisdiction renders decree "utterly void"); see also......
  • Bowers v. Wurzburg, No. 25842.
    • United States
    • Supreme Court of West Virginia
    • July 9, 1999
    ...as process duly served on such corporation in this State.[15] (Footnote added). Accord Syl. pt. 2, Schweppes U.S.A. Ltd. v.. Kiger, 158 W.Va. 794, 214 S.E.2d 867 Also applicable to the case sub judice are certain aspects of federal law. In addition to the pronouncements of state law governi......
  • S. R. v. City of Fairmont, No. CC922
    • United States
    • Supreme Court of West Virginia
    • July 29, 1981
    ...contacts within this State at the time of said injury." 4 We believe that Syllabus Point 2 of Schweppes U.S.A. Limited v. Kiger, W.Va., 214 S.E.2d 867 (1975), is unduly restrictive in confining minimum contacts to the three enumerated categories contained in the preceding section of W.Va.Co......
  • Request a trial to view additional results

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