Steele v. Harkness
| Decision Date | 17 July 1876 |
| Citation | 9 W.Va. 13 |
| Parties | STEELE v. HARKNESS. |
| Court | West Virginia Supreme Court |
The suit abates upon the return of the non residence of the defendant.
That the suit had abated by the return of the sheriff, before the filing of the affidavit and issuing of the attachment in the cause; and that all proceedings had, or taken, in said cause after the abatement were irregular and erroneous.
3. After a suit has abated it is not competent to sue out an attachment in that cause, because such affidavit and attachment must be sued out in a pending cause.
4. The defendant not having entered his appearance, either at rules or in term, to the action, has a right, on the calling of the cause, to object that it has not been legally matured for trial; and if the court overrules his objection, he has a right to file his exceptions to such ruling, and if such ruling be erroneous, this Court will reverse the same although the defendant afterwards appeared to the action and plead fully thereto, unless he expressly waived his exception thereto.
Supersedeas to a judgment of the circuit court of Wood county, rendered on the thirtieth day of December, 1874, in a suit then pending in said court, wherein D. Smythe Steele was plaintiff, and W. W. Harkness, defendant. The supersedeas was granted on the petition of the defendant below.
The other facts sufficiently appear in the opinion of the Court.
The Hon. James M. Jackson, judge of said circuit court, presided at the trial below.
Amiss & Son for the plaintiff in error.
Walter S. Sands for the defendant in error.
An action of assumpsit was brought in the circuit court of Wood county against the plaintiff in error to recover the balance claimed to be due the defendant in error on account. The summons was issued on the fourth day of October, 1873, returnable to the first Monday in the same month, went into the hands of the sheriff, and was, by him, returned, " no inhabitant of my bailiwick."
At October rules the declaration was filed, and with it an account specifying the items that he would seek to prove upon the trial.
At October rules an order of publication was awarded, and at November rules a common order was taken. At December rules, that order was confirmed and an inquiry of damages awarded, and the cause came upon the docket at the December term of the court, when this order was entered: " For reasons appearing to the court this cause is remanded to the rules." The same proceedings were had again, and resulted in remanding the cause a second time. At August rules, 1874, a further order of publication was awarded, and at October rules, 1874, a common order was again taken, and at November rules ensuing the common order was confirmed and a writ of inquiry, & c., awarded. The cause came on the docket again at December term, 1874.
On the thirty-first day of December, 1873, the plaintiff below filed his affidavit with the clerk, in which he refers to the cause, swears and says, " that the defendant W. W. Harkness is justly indebted to him in the sum of $350--the price and value of labor performed for said defendant at his request, and affiant justly believes he ought to recover that amount from said defendant: Affiant further says that the said W. W. Harkness is a nonresident of the State of West Virginia and desires that an attachment should issue against said defendant W. W. Harkness in the said cause."
On the fifth day of February, 1874, the clerk issued an attachment directed to the sheriff of Wood county, or any constable in any district therein, commanding that the estate of the defendant, sufficient to pay the sum of $350, with interest thereon from first day January, 1872, and costs of suit should be seized and make return thereof to the next term of the court. The sheriff returns that on the twentieth of March, 1874, he had levied on certain personal property belonging to defendant.
On the twenty-third of December, 1874, the cause was called for trial; the counsel for the defendant appeared, but only for the purpose of objecting to the hearing of the same, and " moved the court to strike the cause from the docket, because it was improperly placed there; " and assigned as reasons therefor that process had not been served, that defendant had not been served with a copy of the attachment issued therein, nor order of publication, which was claimed to be defective and insufficient, because the order was awarded at October rules, 1873, prior to the issuing and levy, of the attachment; --and because it was defective in not showing that an attachment had been sued out, and was not properly executed."
The facts being submitted to the court, it refused to strike the case from the docket.
The defendant then appeared and plead fully to the action and filed sets off greater than the demand of the plaintiff. A trial was had and judgment for plaintiff.
The defendant filed his bill of exceptions to the decision of the court in overruling his motion.
On this very unsatisfactory state of facts this cause comes to this Court for review. It is rather difficult to see what the facts were, with that clearness and distinctness with which facts should be presented to an appellate tribunal. But from the whole record, as presented, and the arguments of counsel on both sides, it may be treated as an action at law brought by a resident plaintiff against a non-resident defendant under the one hundred and twenty-third chapter of the Code of West Virginia, prescribing where suits at law and chancery may be commenced.
The First section of this chapter prescribes: " Any action at law or suit in equity, except where it is otherwise specially provided, may be brought in the circuit court of any county:
Thirdly, if it be to recover land or subject it to a debt, or be against a debtor who resides without, but has estate or debts due him within this State, wherein such land, estate or debts or any part thereof may be.
The second section provides that " an action may be brought in any county wherein the cause of action, or any part thereof, arose, although none of the defendants may reside therein."
As a general rule, a suit may be brought where the defendant (if only one) or any one of the defendants, if more than one, may reside. And the plaintiff can mature his cause by process served, or by order of publication, under certain circumstances, as against a resident of the State.
The second section, giving jurisdiction in the county in which the cause of action arose, is limited in its operation, by requiring process to be executed in the county, or at least it is provided that process against a defendant (unless a railroad, & c., & c., be a defendant) to answer in any action brought under the second section of chapter one hundred and twenty-three shall not be directed to an officer of any other county than that wherein the action is brought." Sec. 2 of chap. 124.
Under the eighth section of chapter one hundred and twenty-five we find it provided: " When a summons to answer a bill or action is against a defendant whom the officer (receiving it) knows does not reside in his county, or that he resides out of the State, he shall, unless he find him in his county on or before the return day, re turn him a non-resident; whereupon, if the court from which process issued have jurisdiction of the case, only on the ground of such defendant's residence in such county the action or suit shall abate as to him; and if he be returned a non-resident of the State, and the court have jurisdiction of the case only on the ground that the cause of action arose in the county, the action or suit shall abate as to him."
It is clear that when a suit is brought under the first clause of the first section of chapter one hundred and twenty-three and the return is " no inhabitant of my bailiwick," meaning, perhaps, of the county, then the suit abates as to such defendant, unless some ground of jurisdiction be shown, other than the residence of the defendant in the county.
And where the suit is brought under the second section of the act upon the return of the officer that he is a " non-resident," (and he shall return the truth), if he be returned a non-resident of the State, and the court have jurisdiction of the case only on the ground that the cause of action arose in the county, the action shall abate as to him. This section says if the officer knows that the party does not reside in his county, or that he resides out of the State, he shall, unless he find him in his county on or before the return day, return him a " non-resident." Upon the officer making the return as prescribed, to-wit: that he is a " non-resident," it is to be held a valid return in both cases--the one that he is a non-resident of the county and the other that he is a non-resident of the State; and, in either case, the suit should abate as to such defendant if no other...
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