Sturm v. Fleming et at.

• Citation: 22 W.Va. 404
• Parties: Sturm v. Fleming et at.
• Decision Date: 10 November 1883
• Court: Supreme Court of West Virginia

22 W.Va. 404

Sturm

v.Fleming et at.

Supreme Court of Appeals of West Virginia.

Submitted October 27, 1883

Decided November 10, 1883.

In chancery pleadings it is the disposition and practice of courts of equity to regard substance rather than mere form or name, and to so mould and treat the pleadings as to attain the real justice of the case; consequently a complaint, styled by the pleader a "petition," which has all the elements of a bill in the nature of a bill of review, will be treated as such, if it has the necessary parties with sufficient averments and prayer for relief, (p. 412.)

A judgment or decree, pronounced in an action at law or suit in equity instituted during the late civil war by a plaintiff resid-

Coundrl below. ing within the Union lines, in a court within said lines, against parties residing within the Confederate lines and in the Confederate military service, without any appearance by, or notice to such parties other than an order of publication published within the Union lines, is absolutely void and may be so treated in the same or any subsequent collateral suit or proceeding. The doctrine of the cases of Grinnan v. Edwards 21 W. Va. 247, and Haymond, Trustee, v. Camden, supra, approved. (p. 413.)

3. In such case, the suing out of an attachment against the property of such defendant, then in the military service of the Confederate States, and the service of the process on the wife of the defendant, she being within the Union lines, will not confer jurisdiction or render the proceedings valid for any purpose. (p. 414.)

4. A case in which a complaint, styled by the pleader a "petition," was held to be in substance and treated as an original bill in the nature of a bill of review, and an order of the circuit court sustaining a demurrer thereto reversed. (p. 417.)

The facts of the case are fully stated in the opinion of the Court.

A. F. Haymond for appellant.

W. P. Hubbard for appellee Fleming.

Snyder, Judge:

At a circuit court held for Harrison county, on November 29, 1873, A. P. Sturm, by leave of said court, filed therein what is styled his petition, in the words following:

"The petition of Asbury P. Sturm, a citizen and resident of the State of West Virginia, filed in the circuit court of said county against Solomon S. Fleming, plaintiff, and Charles McEntire, Selden M. Ogden, John M. Fortney, administrator of Joshua Robinson, deceased, William Monroe, Emory Strickler, George W. Martin jr., Charles E. Billingsley, Van B. Ogden and Abel Bartlett, defendants, in a chancery cause lately pending on the docket of the circuit court of said county of Harrison, and John Chalfant.

"The petitioner respectfully represents that he is a citizen and resident of the State of West Virginia; that heretofore, to-wit, at November rules, 1864, one Solomon S. Fleming instituted an action of trespass against your petitioner and one Charles McEntire in the circuit court of Harrison county, to recover damages for the taking and carrying away, as alleged, by your petitioner and others of certain goods, wares and merchandise, and an attachment was sued out in said cause and levied upon two tracts of land belonging to petitioner, one of sixty-one and the other of thirty acres, lying upon Robinson's run, in said county, and also upon the interest of Charles McEntire in the lands of Enoch McEntire, deceased, lying upon the.West Fork river and Bingamon; that at the December term, 1864, of said court, the said Fleming recovered a judgment against your petitioner and the said McEntire for the sum of eight hundred and seventy-seven dollars and seventy-two cents with interest thereon from April 30, 1863, until paid, and fourteen dollars and thirty-two cents costs; that at-July rules, 1864, one Selden M. Ogden instituted an action of trespass on the case in said court against petitioner, Charles McEntire and Granville McEntire, to recover damages for an alleged taking and carrying away of three head of horses, and sued out an attachment therein, and caused the same to be levied on 'one tract of laud containing sixty-one acres, also one other tract of land containing thirty acres; also two acres of land, also upon the interest of Charles McEntire in the lands of Enoch McEntire's heirs, and at the September term, 1864, the said Ogden recovered a judgment against petitioner and Chas. McEntire for three hundred and ten dollars, with interest thereon from April 30, 1863, and twenty-two dollars and seventy-seven cents costs; that at August rules, 1864, one Chas. E. Billingsley instituted his action of trespass on the case against petitioner, Charles McEntire and Peter B. Righter in said court, sued out an attachment thereon, and caused the same to be levied upon thirty acres of land and sixty-one acres of land belonging to the petitioner, on Robinson's run, also upon the interest of Charles McEntire in the lands of Enoch McEntire, deceased; also upon one hundred and thirty-four acres of land belonging to Peter B. Righter, and at the September term, 1864, obtained a judgment against petitioner and Charles McEntire for twenty dollars, with interest thereon from April 29, 1864, and thirty-five dollars and eighty-nine cents costs; that John M. Fortney. administrator of Joshua Robinson, deceased, at August rules, 1864, instituted an action of trespass against petitioner and Charles McEntire to recover damages for the alleged taking and carrying away of five head of horses, in which an attachment was sued out and levied upon sixty-one acres and thirty acres belonging to petitioner, and the interest of Charles McEntire in the lands of Enoch McEntire, deceased; and at the September term, 1864, recovered a judgment for five hundred dollars, with interest from April 30, 1863, and twenty-two dollars and eightty-one cents costs; that at August rules, 1864, one Emory Strickler instituted his action of trespass in said court against petitioner, Charles McEntire and Peter B. Righter, to recover damages for the alleged taking and carrying away of one horse, two hundred bushels of corn, and various articles of provision, and for destruction to the grain field, buggy and gearing belonging to said Strickler, in which suit an attachment was sued out and levied upon sixty-one acres and thirty acres of land belonging to said petitioner, the interest of Charles McEntire in the lands of Enoch McEntire, deceased, also upon one hundred and twenty-five acres of land belonging to Peter B. Righter; and at the September term, 1864, he recovered a judgment against petitioner and Charles McEntire fo: two hundred and twenty-five dollars, with interest from April 30, 1864, and nineteen dollars and twenty-lour cents costs; that William Monroe, at the August rules, 1864, instituted his action of trespass in said court against petitioner and Charles McEntire, to recover damages for the alleged taking away of two head of horses, in which an attachment was sued out and levied upon sixty-one acres and thirty acres of land belonging to petitioner, and the interest of Charles McEntire in the lands of Enoch McEntire, deceased; and at the September term,. 1864, recovered a judgment against petitioner and said McEntire tor the sum of four hundred dollars, with interest thereon from April 30, 1863, and nineteen dollars and twenty-seven cents costs; that at the August rules, 1864, one George W. Martin, jr., instituted his action of trespass against petitioner, Charles McEntire and Peter B. Righter in said court, to recover damages for the alleged taking and carrying away of two horses, one saddle and one bridle, and in said suit sued out an attachment, and caused the same to be levied on sixty-one acres and thirty acres of land belonging to the petitioner, and the interest of Charles McEntire in the lands of Enoch McEntire, deceased; and at the September term, 1864, recovered a judgment against petitioner and Charles McEntire for two hundred and twenty dollars, with interest from April 30, 1863, and eighteen dollars and four cents costs.' Your petitioner avers that the several attachments sued out in the said several causes, were founded upon the affidavits of said several plaintiffs of the taking and carrying away by the petitioner and said McEntire and their confederates of the goods and chattels in the several declarations in the said several causes mentioned, and upon the further allegations in said several affidavits, that the defendants were non-residents of the State; that the process in the said several causes and the attachments therein, respectively, bear the same date, that said several processes in said several causes were executed by delivering copies thereof to the wives of petitioner and said McEntire, respectively, at the usual places of abode of petitioner and said McEntire, and explaining the purport thereof to their said wives respectively, the said petitioner and McEntire not being found at their said respective places of abode.

"And your petitioner here further avers that at the time said several processes were so executed as aforesaid, he was a citizen and resident of the county of Harrison, in the State of West Virginia; that he was temporarily absent from his home within the so-called Confederate lines of the armies of the so-called Confederate States of America, and in the regular military service thereof; that he was not there and in said service by his own voluntary act, but, on the contrary, was arrested at his home in said county of Harrison by armed men and conveyed to a military prison, and by the military forces and authority of the United States, sent against his will and without his consent within the lines ot the armies of the so-called Confederate States of America, where he remained until the close of the late war. And your petitioner here avers that all said property in said several causes mentioned was liable to capture, seizure and appropriation, according to the rules of civilized warfare, by belligerent forces in the prosecution...