Slingluff v. Gainer

• Decision Date: 19 January 1901
• Citation: 37 S.E. 771,49 W.Va. 7
• Court: West Virginia Supreme Court
• Parties: SLINGLUFF et al. v. GAINER et al.

49 W.Va. 7

37 S.E. 771

SLINGLUFF et al.

v.GAINER et al.

Supreme Court of Appeals of West Virginia.

Jan. 19, 1901.

PROCESS—NAMES OF PARTIES-SERVICE—DEFAULT DECREE.

1. It is better in judicial process, or other legal documents, to use the full Christian names and surnames of parties therein, not mere initials.

2. Case of service of process on the wrong person, having the same initials of Christian name as the defendant intended, discussed.

3. On a motion to reverse a decree by default, the errors must be specified in the notice of the motion, or on the record in the motion, or in a written assignment of errors filed as a part of the record.

(Syllabus by the Court.)

Appeal from circuit court, Calhoun county; Reese Blizzard, Judge.

Action by Slingluff, Johns & Co. against Gainer & Sturm and others. Decree for plaintiffs, and defendant R. E. Morgan appeals. Affirmed.

Walter Pendleton, for appellant.

Merrick & Smith and Linn & Hamilton, for appellees.

BRANNON, J. Slingluff, Johns & Co. brought a chancery suit against Gainer & Sturm and others to enforce the lien of a judgment on land of the defendants, In which suit there was a reference to a commissioner to convene the holders of all liens against the land sought to be subjected, and the commissioner made report of such liens, and upon such report a decree was entered specifying the liens chargeable upon the land, and subjecting the land to sale by commissioners appointed by the decree. This decree adjudicated the matters involved in the suit, and fixed the rights of the parties. R. E. Morgan was made a defendant by the bill, which stated that F. L. Sturm, one of the owners of the land, had executed a deed of trust, on the land sought to be subjected, to Downs, trustee, to secure R. E. Morgan in moneys thereafter to be advanced to Sturm The commissioner reported that no proof had been adduced before him to show that any money had been furnished by Morgan to Sturm under the said trust, and no debt was reported by the commissioner or allowed by the decree to Morgan under said deed of trust At a later term of the court Morgan appeared In the case, and asked permission to file a pleading calling Itself a "petition and answer, " but the court refused to allow it to be filed, and Morgan then took this appeal.

The chief point of complaint of Morgan Is the refusal of the court to allow him to file the said petition. It sets up that Fred L. Sturm had executed the deed of trust to secure Morgan for future loans, and that Mor-gan had lent Sturm, at different times, different sums of money, amounting to $950, and that Sturm executed his notes therefor. The petition further stated that Morgan resided in Marion county, and that he had never been served with process in the suit, which was in Calhoun county, and had no knowledge of the suit for a long time. It further stated that he accidentally learned of the pendency of the suit, and had committed the notes for his debt to the hands of Carl Sturm to present them to the commissioner, which Sturm failed to do, —a fact which he did not learn until after the said decree. The process sent to Marion county to be served on Morgan was returned served "on the within-named R. E. Morgan, April 29, 1S9G, by delivering to him a copy thereof in writing in Marion county." The said petition alleged that there was another man named R. E. Morgan resident in Marion county, having the initials R. E., his correct name being Rufus E. Morgan, while the petitioner, though having the same initials, was, by proper name, Robert E. Morgan, and that the process was in fact served on Rufus E. Morgan, and not on petitioner, Robert E. Morgan. If this is so, it shows that the practice, now so widely prevalent, of using in legal documents mere initials is wrong, — often the source of mistaken identity or other confusion. Initials are not a name, but only a hasty, careless, substitute for the proper name. A name is one or more words used to distinguish a person, as "Socrates" or "Benjamin Pranklin, " says Bomber's Law Dictionary. Since the days of William the Conqueror, by the common law a name consists of a given name, called "Christian name, " because given in Christian baptism, and a surname, which is the family name or patronymic. A middle name or initial is in law no part of the name, though practically it is sometimes useful as a means of identification, but it may be omitted from a documeut without prejudice to it. The law from William of Normandy continues as just stated down to this day. Enewold v. Olsen, 39 Neb. 59, 57 N. W. 705, 22 L. R. A. 573; Godbe v. Tootle, 154 U. S. 576, 14 Sup. Ct. 1107, 19 L. Ed. 831. It has even been held in several cases that I have noticed that the giving of mere initials in legal proceedings makes them void. Vawter v. Gilliland, 55 Ind. 278. I do not go so far, but the fact serves to show how objectionable It Is, —this loose practice, now so common. 14 Enc. PI. & Prac. 273; Cattle Co. v. Becker, 147 U. S. 47, 58, 13 Sup. Ct. 217, 37 L. Ed. 72; Walton v. Chair Co., 157 U. S. 342, 15 Sup. Ct. 626, 39 L. Ed. 725.

If that petition states the truth in saying that another man, Rufus E. Morgan, was served with that writ, instead of Robert E. Morgan, what Is its effect? For the actual decision of this case it is not necessary for me to say, though not improper to indicate my opinion, which Is that it would entitle Morgan to relief, for the reason that the identical man Morgan (Robert E. Morgan) entitled to that deed of trust was not served with process, and the court had no jurisdiction as to him, because a court, to render a valid decree, must have jurisdiction of both the subject-matter and the parties, and it cannot have power over a party or his rights, unless he has notice or appears In the case. That decree does not affect Morgan's rights. Without hindrance from it, he could proceed under his trust regardless of that decree; for it is certainly competent, if his right to do so were contested, to adduce oral evidence outside the record of the case to show what person it is to whom the service of process actually applies, just as it is competent to call upon oral evidence to show to what land or other subject a deed or other writing or judgment applies, in case of ambiguity, uncertainty, or confusion. To sustain Morgan's right to relief for the cause just stated, his counsel cites Bank v. Authier (Minn.) 53 N. W. 812, 18 L. R. A. 498; Jones v. Bank, 35 Am. Dec. 419; Fitzgerald v. Salentine, 10 Mete. (Mass.) 436, 438; Adkins v. Insurance Co., 45 W. Va. 391, 32 S. E. 194; Yates v. County Court, 47 W. Va. —, 35 S. E. 24 (Syl., point 4). I would cite Williams v. Van Valkenburg, 16 How. Prac. 144, to show that service on the wrong person gives no jurisdiction.

Shall we denominate the said matter relied upon by Morgan to get rid of the decree as under the head of accident or mistake? Many book definitions would rank it under either head. I would rank it under the head of accident, within the meaning of chancery jurisdiction to give relief under the head of accident. 1 Am. & Eng. Enc. Law (2d Ed.) 277; 1 Story, Eq..Tur. § 78; 2 Pom. Eq. Jur. § 823. The jurisdiction of chancery to give relief because of accident Is very ancient. 1 Am. & Eng. Enc. Law (2d Ed.) 278. Hogg, Eq. Prin. 24, gives a good definition.

Counsel for the plaintiffs make the point that to allow Morgan relief would run up against the rule that a return of a sheriff of process is conclusive, and that Morgan cannot be allowed to contradict it. I do not question that such rule, where it properly applies, is safe and well established. Rader v. Adamson, 37 W. Va. 582, 16 S. E. 808; Stewart v. Stewart, 27 W. Va. 168. But this is not contradicting the return. It is simply the use of oral evidence to show to what person—to what particular person—that return applies; on which R. E. Morgan the writ was served. It does not contradict a letter of that return, because that return does not tell us whether the service was on Rufus E. Morgan or Robert E. Morgan, and is thus ambiguous, applying as well to the one man as to the other, and thus producing an uncertainty which can be removed only by oral evidence to apply the writing to the subject-matter or person to which it relates. 1 Greenl. Ev. § 290; Simpkins v. White, 43 W. Va. 125, 27 S. E. 361; Foley v. Ruley, 43 W. Va. 513, 520, 27 S. E. 268; Shirley v. Long, 6 Rand. 74a

If Morgan was not served, he can show that fact; but not merely that fact, as that would simply contradict the return, but, in connection therewith, he ought to be allowed to show that he and another man of the same initials resided in Marion county, and that particular summons was served on that other man, Rufus E. Morgan. If in fact Morgan was not served, how is he to get relief? He could not, by this petition, treat it as an answer. Being after a final decree, it was too late. That decree adjudicated the principles of the cause; settled the rights of the parties; was an appealable decree, —a final decree. It left nothing...