Tabor v. Baer

• Decision Date: 17 September 1929
• Docket Number: (No. 6523.)
• Court: West Virginia Supreme Court
• Parties: TABOR. v. BAER et al.

149 S.E. 675

TABOR.

v.BAER et al.

(No. 6523.)

Supreme Court of Appeals of West Virginia.

Sept. 17, 1929.

(Syllabus by the Court.)

Error to Circuit Court, Raleigh County.

Action by C. W. Tabor against Richard P. Baer and others, in which defendants ap peared specially to dismiss attachment proceedings. Personal judgments were entered against defendants, and their motion to set aside was overruled, and defendants bring error. Reversed.

Geo. S. Wallace, of Huntington, for plaintiffs in error.

File, Goldsmith & Scherer, of Beckley, for defendant in error.

WOODS, P. The crucial question raised by this writ of error is whether the defendants made a general or special appearance. The defendants are nonresidents. Concurrent with the institution of the action for damages, an attachment was sued out, and a levy made on certain properties alleged to belong to defendants. The case having been matured for hearing, the defendants, on December 17, 1928, by J. H. McGinnis, an attorney of the local bar, as the order of that date recites, "appeared specially and for no other purpose, and moved to dismiss this case upon the ground that the plaintiff had not attached any property of the defendants, and upon the further ground that the order of publication was insufficient, because it did not describe the estate or property of the defendants which the plaintiff seeks to subject to the payment of this debt." This motion was overruled. McGinnis then withdrew, stating that he would make no further appearance in the case. The case, on the court's own motion, was continued to the next term. Two days later a second summons was issued and served on defendants in Maryland. At the February term, no further appearance by defendants being made, a jury was impaneled and damages assessed. Personal judgments were entered against defendants.

McGinnis, later discovering that his motion of December 17th had been construed as a general appearance, appeared at the bar of the court, and, as an officer thereof, asked that said order of December 17th be corrected in certain particulars. On April 26th the defendants, by other counsel, after notice to counsel for plaintiff, made an appearance under section 5, chapter 134, Code, and moved that the order of February be set aside, in so far as it attempted to take a personal judgment. Both motions were overruled May 4, 1929. The defendants are now seeking to have the order of May 4th, and so much of the order of February as enters a personal judgment against them, reversed.

In determining whether an appearance is general or special, courts look to matters of substance rather than to form, and to the state of the record at the time the motion was made. Fisher, Sons & Co. v. Crowley, 57 W. Va. 312, 50 S. E. 422, 4 Ann. Cas. 282. If an appearance in effect is general, the court will so regard it, though the defendant de-nominates his appearance a special appearance. When, however, only a special appearance manifestly is intended, and one only to challenge jurisdiction of person or property, and to invoke a ruling on that question, and nothing else, the court may not enlarge the appearance, for the extent to which a defendant submits himself to the jurisdiction when he voluntarily comes in is determined by his own consent. It is a doctrine of universal application in the courts of the country that the appearance of a defendant in an attachment case to challenge the jurisdiction of the court over his person or property is a special and not a general appearance and does not of itself give the court jurisdiction to proceed with the trial upon its merits. 2 R. C. L. p. 332. Courts are liberal in dealing with pleadings involving this class of actions. Indeed, the court may ex mero motu quash an irregular attachment in a case where there has been no appearance. Yellow Pine Lumber Co. v. Mays, 81 W. Va. 46, 94 S. E. 42. In this state any party interested may move the court to quash an affidavit and attachment....