Talbott v. Southern Oil Co

• Decision Date: 30 October 1906
• Court: West Virginia Supreme Court
• Parties: TALBOTT . v. SOUTHERN OIL CO.

55 S.E. 1009

60 W.Va. 423

TALBOTT .

v.SOUTHERN OIL CO.

Supreme Court of Appeals of West Virginia.

Oct. 30, 1906.

Rehearing Denied Jan. 10, 1907.

1. Process—Return—Contradiction—When Permissible.

If a return of service of a summons commencing a suit is sufficient on its face, such facts stated therein as it was the duty of the

55 S.E.-64

officer to set forth in it cannot be put in issue by either a plea in abatement or a motion to set aside a judgment by default. For reasons of public policy, contradiction of such returns is not permitted in any form, except upon allegations of fraud or collusion.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Process, §§ 189-193.]

2. Error, Writ op—Objections Not Raised

Below.

On a writ of error to a judgment by default, after an unsuccessful motion to set it aside, made pursuant to section 5 of chapter 134 of the Code of 1899 [Code 1906, § 4036], without in any way challenging the sufficiency of the declaration, insufficiency thereof cannot be assigned as ground of error if the matter therein set up be such as if well pleaded would constitute a cause of action cognizable by the court when sitting as a court of law.

[Ed. Note.—Foi cases in point, see Cent. Dig. vol. 2, Appeal and Error, §§ 1226-1240.]

3. Mines and Minerals — Leases — Rights and Liabilities.

For injury to land caused by the escape of natural gas from a well thereon, drilled and abandoned by a lessee of the land for oil and gas purposes, the lessor has a right of action for damages against the lessee.

(Syllabus by the Court.)

Error to Circuit Court, Gilmer County.

Action by E. M. Talbott against the Southern Oil Company. Judgment for plaintiff and defendant brings error. Affirmed.

M. D. Hanes, Chas. N. Kimball, and Jas H. Gilmore, for plaintiff In error.

R G, Linn, for defendant in error.

POFFENBARGER, J. The Southern Oil Company, a corporation, against Which E. M. Talbott obtained a judgment by default for the sum of $2,000 in an action of trespass on the case in the circuit court of Gilmer county, for damages occasioned by failure on the part of the defendant to plug, as required by statute, an abandoned gas well, drilled by the defendant on lands of the plaintiff under a lease authorizing such drilling, complains of the action of said court in refusing to quash the return of service on its motion made In a special appearance for the purpose, and In refusing to set aside the judgment on its motion, made pursuant to notice thereof. The return of the sheriff reads as follows: "Executed the within writ on the within named, the Southern Oil Company, a corporation, by delivering a copy thereof to E. L. Buttrick, as Its statutory attorneys in Kanawha county, wherein the said Buttrick resides, on the 31st day of March, 1904. J. A. Jarrett, Sheriff of Kanawha county, W-Va." On the special appearance aforesaid, the defendant asked leave to file an affidavit of D. Robertson, Its secretary and treasurer, showing the authority of E. L. Buttrick, as its attorney In fact, appointed in conformity, with the statute (section 24, c. 54, Code 1906), to have been revoked before the institution of this action, which leave was granted, and the affidavit filed over the objection of the plaintiff, but the motion to quash, supported by the affi-davit was overruled. No further appearance having been made, judgment was rendered on a subsequent day of the same term, June 9, 1904. The motion to vacate the judgment was made in vacation at the county seat of Jackson county, on the 1st day of August 1904, and in support thereof the defendant tendered certified copies from the records of the clerk's office of the county court of Kanawha county, in which the power of attorney had been recorded, and of the office of the Secretary of State, showing that the instrument revoking said power of attorney had been recorded in said offices in the month of October, 1903. Leave being granted, they were filed, but, on objection sustained, the judge refused to read or consider them, and overruled the motion to set aside the judgment.

The law of this state, as settled by the decisions of this court, seems to forbid any relief upon either of the motions made by the defendant. Stewart v. Stewart 27 W. Va. 167, holds that the facts stated in the return of a sheriff, showing service of the summons commencing a suit, cannot be contradicted for the purpose of setting aside a decree upon a bill taken for confessed. If this rule is sound, It must apply to judgments by default as well as to such decrees. There can be no difference in principle. Relief in such cases Is by motion, In the nature of a writ of error. Section 5, c. 134, Code 1899 [Code 1906, § 4036]. To be available on such a motion, the error must appear upon the face of the record. Here the matter relied upon for relief Is one which does not appear upon the face of this record, and cannot be shown without contradicting a fact stated in the return.

If the matter relied upon were such as could have been made available at common law, upon a writ of error coram nobis for error in fact, relief might be had by motion, under section 1 of chapter 134 of the Code. Carlon's Adm'r v. Ruffner, 12 W. Va. 297, 299, 310; King v. Burdett, 28 W. Va. 601, 57 Am. Rep. 687; Evans v. Spurgin, 6 Grat 107, 52 Am. Dee. 105; Gunn v. Turner's Adm'r, 21 Grat. (Va.) 382. But our decisions hold that the return of the sheriff cannot be contradicted under any circumstances, nor overthrown by any kind of proceeding. Rader v. Adamson. 37 W. Va. 582. 16 S. E. 808, 812, holds that it cannot be done by plea in abatement. At page 595 of said volume, Judge English, speaking for this court, said: "The statute requires a plea of this kind to be verified by affidavit, but does not authorize such a plea to be sworn to by any person other than the defendant, and for several reasons we must regard said plea as bad: but, if it was ever so formal and free from defects, we think the court acted properly in striking it out, as this court has held in the ruse of Bowyer v. Knapp, 15 W. Va. 299: 'The law seems to be well settled that an official return, duly made upon...