Shenandoah Val. R. Co v. Ashby'b Tr.S

• Decision Date: 27 June 1889
• Citation: 86 Va. 232,9 S.E. 1103
• Court: Virginia Supreme Court
• Parties: Shenandoah Val. R. Co. v. Ashby'b Trustees.

9 S.E. 1103

(86 Va. 232)

Shenandoah Val. R. Co.

v.Ashby'b Trustees.

Supreme Court of Appeals of Virginia.

June 27, 1889.

Writs— Return—Amendment.

1. The return of a sheriff to a summons may be amended thirteen years after judgment by default has been rendered in the action, so as to show that the county in which service was had on the defendant corporation, by giving one of the directors a copy of the summons, was the county in which he resided, and the judgment will be validated by such amendment.

2. It is immaterial that subsequent mortgagees of the corporation may be injured by the amendment, it not being shown that they were aware of the irregularity in the judgment, which was duly docketed, when they took their mortgages, and if they were, they would nevertheless acquire their liens subject to the judgment plaintiff's right to have the record perfected.

W. H. Travers, for plaintiff in error. John J. Williams, for defendant in error.

Lewis, P. This is a writ of error to the circuit court of Warren county, bringing under review an order of that court permitting an amendment of a return on a writ of summons. It appears from the record that on the 4th of September, 1874, Thomas N. Ashby instituted an action of debt in the said court against the Shenandoah Valley Railroad Company, for the sum of $5,231.90, and $11.90 costs, upon the transcript of a record of a judgment which he had previously recovered against the said company in one of the courts in West Virginia. On the original summons sued out in the action return was made by John T. Lovell, a deputy of L. Leach, sheriff of Warren county, as follows: "Executed the within summons in debt on September 5, 1874, upon M. B. Buck, one of the directors of the Shenandoah Valley Railroad Company, by delivering to him a copy thereof. John T. Lovell, D. S., for L. Leach, S. W. C." At the ensuing October term a judgment by default was rendered for the plaintiff for the i sum claimed in the declaration, which judgment was several years afterwards asserted by the trustees of the plaintiff, the defendants in error here, as a lien upon the property of the defendant company, in a certain chancery suit pending in the circuit court of Roanoke city, wherein the Fidelity Insurance, Trust & Safe-Deposit Company was plaintiff and the said railroad company was defendant. But the claim was rejected on the ground that the judgment was void, because there had been neither service of process upon, nor voluntary appearance by, the defendant in the action wherein the judgment was recovered. Subsequently the said trustees, after due notice, to-wit, on the 20th of October, 1887, moved the said circuit court of Warren county to permit the said return to be amended, which motion was granted, and the return was accordingly amended by the said Lovell so as to read as follows: "Executed the within summons in debt on September 5, 1874, upon M. B. Buck, one of the directors of the Shenandoah Valley Railroad Company, by delivering to him a copy hereof in the county of Warren, Virginia, in which county he resided at the time. John T. Lovell, D. S., for L. Leach, S. W. C." The defendant company, the plaintiff in error here, complains of this action of the circuit court permitting the return to be amended, and the principal ground of its complaint is that, as the original return does not show that the summons was served in conformity with the provisions of the statute relating to the service of process in such cases upon the officers of a corporation, the service was without legal effect, and consequently the judgment founded upon it is void, and cannot be validated by amendment of the return.

There is no doubt that the original return is defective, and does not of itself show that the defendant company was legally brought before the court, since the statute expressly enacts that service of process in such a case upon an officer of a corporation shall be in the county or corporation in which he resides, and that "the return shall show this, and state on whom and when the service was; otherwise the service shall not be valid." Code 1873, c. 166, § 7; Code 1887, § 3227. It must therefore be conceded that, uniess leave to amend the return was rightly granted, the judgment is void. Barksdale v. Neal, 16 Grat. 314; 4 Minor, Inst. 532. Wit...