Smith v. Smith, No. CC817

CourtSupreme Court of West Virginia
Citation140 W.Va. 298,83 S.E.2d 923
Decision Date19 October 1954
Docket NumberNo. CC817
PartiesCyrus S. SMITH, v. Elizabeth M. SMITH.

Page 923

83 S.E.2d 923
140 W.Va. 298
Cyrus S. SMITH,
v.
Elizabeth M. SMITH.
No. CC817.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 2, 1954.
Decided Oct. 19, 1954.

Page 924

Syllabus by the Court

1. To be valid the return of service of process made outside this State, on a nonresident defendant, must show that the person served was a nonresident of this State at the time of service.

2. A proceeding prosecuted under the Uniform Declaratory Judgments Act for the purpose of having adjudicated rights as to custody of minor children is a proceeding in personam, not in rem.

3. In a proceeding in personam the service of process outside this State on a nonresident defendant is insufficient to give the court wherein the proceeding was instituted jurisdiction over the person of such defendant.

[140 W.Va. 299] Bonn Brown, Elkins, for plaintiff.

Myron B. Hymes, Hymes & Connts, Buckhannon, for defendant.

GIVEN, President.

Plaintiff, Cyrus S. Smith, instituted a proceeding under the Uniform Declaratory Judgments Act against defendant, Elizabeth M. Smith, in the Circuit Court of Randolph County. Service of process was had on defendant by delivery of a copy thereof to her in the State of Minnesota. Special appearance was made by her for the purpose of filing a plea in abatement to the jurisdiction of the court. The plea alleged the existence of certain facts for the purpose of establishing that the court did not, by virtue of such service of process, obtain jurisdiction over the person of defendant. The proceeding was thereafter transferred to the Circuit Court of Braxton County. After the transfer plaintiff filed his demurrer to the plea, which the Circuit Court of Braxton County sustained. That court certified to this Court the questions arising on the demurrer. To understand these questions, we must look to some of the facts in two cases previously prosecuted, one in the Circuit Court of Randolph County and the other in the District Court, Eleventh Judicial District, State of Minnesota, County of St. Louis.

Plaintiff, a resident of Elkins, West Virginia, and defendant, a resident of Duluth, St. Louis County, Minnesota, were married at Duluth about June 28, 1946. Thereafter, they resided together at Elkins, West Virginia, until sometime in January, 1952. In February, 1952, the wife left the husband and returned to Duluth, taking with her the two minor children, issue of the marriage, where she, with the children, has since remained. Since returning to Minnesota the wife has claimed that state as the state of her residence.

On April 1, 1952, the husband instituted a chancery proceeding in the Circuit Court of Randolph County, praying for a divorce from the wife and custody of the children. That court decreed a divorce to the husband and awarded [140 W.Va. 300] to him custody of the children. On appeal to the Supreme Court of Appeals of West Virginia the decree, in so far as it granted a divorce to the husband, was reversed, but was affirmed in so far as it awarded custody of the children to him. It is significant that the Supreme Court of Appeals held, on the appeal, that the wife had made a general appearance in the divorce proceeding. See Smith v. Smith, W.Va., 76 S.E.2d 253. The final decree entered in the cause by the Circuit Court of Randolph County was entered on December 1, 1952.

Page 925

The appeal to the Supreme Court of Appeals of West Virginia was granted January 26, 1953. The opinion of the Supreme Court of Appeals rendered in the case was handed down June 9, 1953.

On February 10, 1953, the wife instituted in the District Court, Eleventh Judicial District, State of Minnesota, a proceeding praying for divorce and custody of the two children. Process in the Minnesota State proceeding was had on the husband by delivery of a copy thereof to him in Randolph County, West Virginia. No personal appearance was made by him in the proceeding. On March 20, 1953, the Minnesota Court granted a divorce to the wife and awarded her custody of the children. The instant proceeding under the Uniform Declaratory Judgments Act was instituted for the purpose of having the rights of the parties as to custody of the children determined. No question as to the validity of the divorce granted by the Minnesota Court is involved.

The wife, in her plea in abatement filed in the instant Uniform Declaratory Judgments Act proceeding, alleges that she was not a resident of the State of West Virginia at the time of the service of process on her. She contends that the instant proceeding is one in personam, that service of such process on her outside the State of West Virginia is insufficient to give the Circuit Court of Randolph County jurisdiction over her person, and that such process can have no other effect than an order of publication would have had. She also contends that the return of service of such process is invalid for the reason that the [140 W.Va. 301] affidavit of service, showing the manner thereof, does not state that she was a non-resident of the State of West Virginia at the time of such service.

We first consider the question relating to the return of service of process. An...

To continue reading

Request your trial
9 practice notes
  • Board of Ed. of Wyoming County v. Board of Public Works, No. CC848
    • United States
    • Supreme Court of West Virginia
    • June 23, 1959
    ...Court has recognized the [144 W.Va. 602] existence of a justiciable controversy in a declaratory judgment proceeding are Smith v. Smith, 140 W.Va. 298, 83 S.E.2d 923, involving the determination of the right between parents of minor children to the custody of such children; LaFollette v. Th......
  • Brouzas v. City of Morgantown, No. 10944
    • United States
    • Supreme Court of West Virginia
    • November 25, 1958
    ...was authorized by the provisions of the statute. La Follette v. City of Fairmont, 138 W.Va. 517, 76 S.E.2d 572. See also Smith v. Smith, 140 W.Va. 298, 83 S.E.2d 923; Douglass v. Koontz, 137 W.Va. 345, 71 S.E.2d 319; Conley v. Easley, 136 W.Va. 645, 68 S.E.2d 23; Algoma Coal and Coke Compan......
  • Overfield v. Collins, No. 23046
    • United States
    • Supreme Court of West Virginia
    • February 11, 1997
    ...the 24th day of June, 1991 is, therefore, void. Harloe v. Harloe, 129 W.Va. 1, 4-5, 38 S.E.2d 362, 364 (1946); see also Smith v. Smith, 140 W.Va. 298, 304-05, 83 S.E.2d 923, 927 (1954). Because this order began a series of petitions filed by the appellant to regain custody that was permanen......
  • Leslie Equipment v. Wood Resources, L.L.C., No. 34712.
    • United States
    • Supreme Court of West Virginia
    • October 30, 2009
    ...(holding that order rendered without personal and subject matter jurisdiction renders decree "utterly void"); see also Smith v. Smith, 140 W.Va. 298, 302-03, 83 S.E.2d 923, 925-26 (1954) (recognizing necessity of personal jurisdiction for judgments founded upon personal Appellants contend t......
  • Request a trial to view additional results
9 cases
  • Board of Ed. of Wyoming County v. Board of Public Works, No. CC848
    • United States
    • Supreme Court of West Virginia
    • June 23, 1959
    ...Court has recognized the [144 W.Va. 602] existence of a justiciable controversy in a declaratory judgment proceeding are Smith v. Smith, 140 W.Va. 298, 83 S.E.2d 923, involving the determination of the right between parents of minor children to the custody of such children; LaFollette v. Th......
  • Brouzas v. City of Morgantown, No. 10944
    • United States
    • Supreme Court of West Virginia
    • November 25, 1958
    ...was authorized by the provisions of the statute. La Follette v. City of Fairmont, 138 W.Va. 517, 76 S.E.2d 572. See also Smith v. Smith, 140 W.Va. 298, 83 S.E.2d 923; Douglass v. Koontz, 137 W.Va. 345, 71 S.E.2d 319; Conley v. Easley, 136 W.Va. 645, 68 S.E.2d 23; Algoma Coal and Coke Compan......
  • Overfield v. Collins, No. 23046
    • United States
    • Supreme Court of West Virginia
    • February 11, 1997
    ...the 24th day of June, 1991 is, therefore, void. Harloe v. Harloe, 129 W.Va. 1, 4-5, 38 S.E.2d 362, 364 (1946); see also Smith v. Smith, 140 W.Va. 298, 304-05, 83 S.E.2d 923, 927 (1954). Because this order began a series of petitions filed by the appellant to regain custody that was permanen......
  • Leslie Equipment v. Wood Resources, L.L.C., No. 34712.
    • United States
    • Supreme Court of West Virginia
    • October 30, 2009
    ...(holding that order rendered without personal and subject matter jurisdiction renders decree "utterly void"); see also Smith v. Smith, 140 W.Va. 298, 302-03, 83 S.E.2d 923, 925-26 (1954) (recognizing necessity of personal jurisdiction for judgments founded upon personal Appellants contend t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT