Vandiver. v. Roberts

• Decision Date: 31 January 1871
• Citation: 4 W.Va. 493
• Parties: William Vandiver et al. v. David Roberts.
• Court: West Virginia Supreme Court

4 W.Va. 493

William Vandiver et al.

v.David Roberts.

Supreme Court of Appeals of West Virginia.

January Term, 1871.

1. A service of a notice by an officer, showing that be left a copy with a member of defendant's family over the age of sixteen; or an amended return showing that he left an office copy with a white male member of his family over the age of sixteen, the defendant being absent from his usual place of abode at the time, is defective because, 1st, it does not show that the person to whom the notice was delivered, was found at the defenddant's "usual place of abode;" and 2d, because it does not show that the officer gave to the person with whom he left the notice, "information of its purport," according to the 1st section of chapter 121, Code of West Virginia.

2. A joint judgment against two parties, where the service of notice is improperly executed as against one party, is erroneous, and must be reversed as to both.

A motion to quash a notice because the return of the sheriff was not sufficient; from Mineral county. Judgment was rendered on the notice on the 22d day of October, 1869. The opinion of Judge Moore sufficiently states the ground of the motion.

C. Boggess for the plaintiffs in error. Stanton $ Allison for the defendant in error.

Moore, J. The return and amended return made by the sheriff, of his service of the notice for judgment on the un- dertaking, so far as the defendant William Vandiver is concerned, are fatally defective.

The original or first return is as follows: "I have served the within summons on the within named E. L. Blackburn, by delivering copy to him in person, and served on Wm. Vandiver by leaving copy with a member of his family over the age of 16 years, Sept. 30th, 1869." The amended return is in these words: "I have served the within notice on the within named E. L. Blackburn, by delivering an office copy to him in person, Sept. 30th, 1869; and served the within on William Vandiver, by leaving an office copy with a white male member of his family over the age of sixteen, said William, Vandiver being absent from his usual place of abode, the time Sept. 30th, 1869."

The amended return shows satisfactorily that the notice was regularly served on E. L. Blackburn, by the officer delivering to him in person, a copy of said notice, as required by the first clause of section first, chapter 121, of the Code. The service of said notice on Wm. Vandiver, was intended to be in accordance with the second clause of said sectio...