Staunton Perpetual Bldg. & Loan Co v. Haden 1

• Decision Date: 08 October 1895
• Citation: 92 Va. 201,23 S.E. 285
• Court: Virginia Supreme Court
• Parties: STAUNTON PERPETUAL BUILDING & LOAN CO. v. HADEN et al.1

23 S.E. 285

92 Va. 201

STAUNTON PERPETUAL BUILDING & LOAN CO.

v.HADEN et al.¹

Supreme Court of Appeals of Virginia.

Oct. 8, 1895.²

Service of Process on Corporation—Default Judgment—Collateral Attack— "Waiver of Defect.

1. A judgment by default against a corporation, founded on the service of process, in another county than that in which the suit is instituted, on an officer of the corporation, is void where process was not served more than 10 days before its return day, as required by Code 1887, § 3227.

2. Though a judgment cannot be collaterally attacked by one of the parties thereto, a third person, whose rights are affected thereby, is not thus precluded.

3. A judgment by default, founded on insufficient notice, is a nullity.

4. Where a judgment was obtained by default without legal service of process, the re-quest of the attorney for defendant that an item for attorney's fees, which was improperly included in the judgment, he omitted therefrom, is not a waiver of the defective service. The judgment, being void, could not be ratified.

Appeal from circuit court, Alleghany county; William McLaughlin, Judge.

Bill by Benjamin Haden and another, trustees, against the Staunton Perpetual Building & Loan Company and others. From the decree rendered, defendant building and loan company appeals. Affirmed.

Patrick & Gordon, for appellant

R. L. Parrish, for appellees.

KEITH, P. George K. Anderson and Benjamin Haden, trustees in a deed from the West Clifton Forge Investment Company, filed their bill in the circuit court of Alleghany county asking the instruction and aid of that court in the discharge of their duties. The company was made a party defendant, and a decree was entered referring the case to a commissioner, to report the indebtedness of the defendant company, its property, and the liens upon it. Among the judgments against the company was one obtained in the hustings court of the city of Staunton on September 17, 1891, in the name of the Staunton Perpetual Building & Loan Company against the West Clifton Forge Investment Company and John Donovan. The commissioner reported against the validity of this judgment, and, the report having been excepted to by the plaintiff in the judgment, the circuit court overruled the exception, and sustained the action of the commissioner. From that decree the Staunton Perpetual Building & Loan Company appealed to this court. The suit which terminated in the judgment under consideration was instituted in the hustings court of the city of Staunton against the West Clifton Forge Investment Company and John Donovan, the court acquiring jurisdiction to entertain the suit by reason of the fact that John Donovan was a resident of that city. Process to answer the suit was issued from the clerk's office of the hustings court, and was duly executed in the city of Staunton on John Donovan August 1, 1891. A writ in the same cause was issued on August 1, 1891, directed to the sheriff of Alleghany county, returnable on the third Monday in August, 1891, upon which the following return was Indorsed by the sheriff of that county: "Executed August 14, 1891, by delivering in person to George Swann, general manager, secretary, and treasurer of the West Clifton Forge Investment Company, a true copy hereof. Said Swann being a resident of Clifton Forge, Alleghany county, Va. S. G. Byers, S. A. C." Declaration was filed on the first Monday in August, 1891, and on September 17, 1891, the following judgment was entered: "Staunton Perpetual Building & Loan Co., Plff., vs. The West Clifton Forge Investment Company and John Donovan Defts. This day came the plaintiff, by its attorneys, and it appearing that the plaintiff had filed its declaration, and that the defendants failed to appear and plead at rules, and have not appeared or pleaded at this term, it is considered by the court that the judgment entered at rules be confirmed, and that the plaintiff recover against the defendants the sum of $2,926.25, the damages in the declaration mentioned, with interest on $2,650, a part thereof from the 22d day of September, 1890, until paid, and its costs by it about its suit in that behalf expended."

It will thus be seen that if the hustings court of the city of Staunton acquired jurisdiction as to the West Clifton Forge Investment Company, it did so by virtue of the force and effect of the summons sent to Alleghany county, and the return of the sheriff made thereon. The terms of the judgment, as above set out, preclude the idea that the court acquired jurisdiction in any other manner. The question, then, is, was the return of the sheriff sufficient to bring the person of the defendant company within the jurisdiction of the hustings court? The effect attributed to the actual service of process in conferring jurisdiction over the person is very different from the effect of that constructive service which derives its efficacy from a statute. Where there has been personal service upon a defendant, mere irregularity is, not sufficient to defeat the jurisdiction of the court, but where the service is wholly dependent upon a statute for its efficacy, it has no validity unless the terms of the statute by which it is authorized and prescribed are strictly followed. Section 3225 of the Code sets out the various officials upon whom process against or notice to corporations may be served. Nothing could be more general and comprehensive than its provisions, and It was, doubtless, a wise and proper measure of relief. Inasmuch, however, as the effect of that act permitted corporations to be impleaded by a notice or summons served, in many instances, upon its subordinate officers, it was provided, in section 3227, that service on any person under either section 3225 or 3226 shall be by "delivering to him a copy of the process or notice in the county or corporation wherein he resides, or his place of business is, or the principal office of the corporation is located, and the return shall show this and state on whom and when the service was, otherwise it shall not be valid. If the process or notice be served on an agent, or by serving in any other county or corporation than that wherein the suit or proceeding is brought or had, it shall be served at least ten days before the return day of such process or notice." The return of the sheriff in this case violates the latter clause of the statute just quoted. It was served upon an officer of the corporation in the county of Alleghany. The suit having been brought in the city of Staunton, in the county of Augusta, it should havebeen served at least 10 days before the return day of such process or notice. It is manifest, upon the most casual inspection of the return, that this plain mandate of the law was not observed. The writ is made returnable on the third Monday in August, 1891. It was executed on August 14, 1891. It is certain that the third Monday in August could not be later than the 21st day of the month. If, therefore, the third Monday in August, 1891, came upon the latest day upon which the third Monday in a month can fall, it would have been on the 21st, which is less than 10 days after the day upon which it was executed. There is no occasion to resort to extraneous testimony. It is obvious, upon inspection of the writ and the return. That this was a judgment by default cannot be questioned. See Davis v. Com., 16 Grat. 134, and Goolsby v. St. John, 25 Grat. 146. And therefore we must look to the writ to ascertain whether or not the court had properly acquired jurisdiction over the person to render the judgment. As has been said, if the court acquired jurisdiction in this case, it was only by virtue of the return made by the sheriff of Alleghany county upon the summons directed to him. That return, as we have seen, fails to comply with the requirements of the law in an essential...