Vanover v. Stonewall Cas. Co., No. 15131

CourtSupreme Court of West Virginia
Writing for the CourtMILLER
Citation169 W.Va. 759,289 S.E.2d 505
Docket NumberNo. 15131
Decision Date26 March 1982
PartiesLuther VANOVER v. STONEWALL CASUALTY COMPANY.

Page 505

289 S.E.2d 505
169 W.Va. 759
Luther VANOVER
v.
STONEWALL CASUALTY COMPANY.
No. 15131.
Supreme Court of Appeals of West Virginia.
March 26, 1982.

Syllabus by the Court

1. Where a defendant who has been personally served in the State fails to appear and allows a default judgment to be taken, the default judgment cannot be set aside on a claim of lack of venue, since the venue issue has been waived by the failure to assert it.

Page 506

2. "Jurisdiction deals with the power of the court, while venue deals with the place in which an action may be tried." Syllabus Point 7, Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963).

Frederick T. Kingdon, Mullens, for appellant.

Camper & Seay and Harry G. Camper, Jr., Welch, for appellee.

MILLER, Chief Justice:

Plaintiff, Luther Vanover, appeals from a final judgment of the Circuit Court of Wyoming County granting [169 W.Va. 760] summary judgment for the appellee, Stonewall Casualty Company (hereinafter Stonewall). Because we conclude that the trial court reached an erroneous legal conclusion in awarding summary judgment, we reverse and remand for further proceedings.

The plaintiff sustained personal injuries in a single-car automobile accident when he was riding in the car as a passenger in Wyoming County. He instituted an action in the Circuit Court of Wyoming County against the driver of the vehicle, Connie Fortner, and the vehicle's owner, Thelma Stump. At the time the action was brought, Thelma Stump resided in McDowell County. Plaintiff attempted personal service of process on Connie Fortner in Wyoming County but was unsuccessful because he was dead. The deputy sheriff's return of service indicated that he was deceased. No attempt was made to serve the representative of the estate of Connie Fortner.

The non-county resident defendant, Thelma Stump, was personally served in McDowell County. She did not plead, answer or otherwise defend the action in Wyoming County. Subsequently, a default judgment was entered against her in Wyoming County.

In 1978, the plaintiff brought this action against Stonewall on the default judgment. He alleged that Stonewall had issued an insurance policy on the car owned by Thelma Stump and in which he was riding when injured. He claimed Stonewall had denied any liability for the judgment. Stonewall moved for summary judgment contending that the default judgment sued on was invalid because no defendant was served with process in Wyoming County as required by the applicable general venue statute, W.Va.Code, 56-1-2, and because the defendant took no action which would amount to a waiver of venue. The trial court in granting the motion held the default judgment sued on was null and void, reasoning that plaintiff's failure to comply with the venue statute in the original action left the circuit court without "jurisdiction" to enter judgment on plaintiff's claims against Thelma Stump.

[169 W.Va. 761] The limited issue in this case is whether a resident of the State who is sued in one county and who is personally served in another county--that of residence--and who does not answer the suit, will be deemed to have waived her right to claim improper venue after a default judgment has been obtained against her. In Hall v. Ocean Accident & Guarantee Corporation, 122 W.Va. 188, 193, 9 S.E.2d 45, 47...

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11 practice notes
  • Leslie Equipment v. Wood Resources, L.L.C., No. 34712.
    • United States
    • Supreme Court of West Virginia
    • October 30, 2009
    ...service of process by publication ... the appellants waived their objections."); Syl. pt. 1, in part, Vanover v. Stonewall Cas. Co., 169 W.Va. 759, 289 S.E.2d 505 (1982) ("Where a defendant ... fails to appear and allows a default judgment to be taken, the default judgment cannot ......
  • State v. Stucky, No. 13–0438.
    • United States
    • Supreme Court of West Virginia
    • November 7, 2013
    ...be tried.” Syllabus Point 7, Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963).’ Syllabus Point 2, Vanover v. Stonewall Casualty Co., 169 W.Va. 759, 289 S.E.2d 505 (1982).” Hansbarger, 177 W.Va. at 157, 351 S.E.2d at 70. Furthermore, “[s]ubject matter jurisdiction cannot be conferred by c......
  • Hansbarger v. Cook, Nos. 17098
    • United States
    • Supreme Court of West Virginia
    • November 26, 1986
    ...tried.' Syllabus Point 7, Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963)." Syllabus Point 2, Vanover v. Stonewall Casualty Co., 169 W.Va. 759, 289 S.E.2d 505 (1982). Subject matter jurisdiction cannot be conferred by consent or waiver, but venue may be. Vanover v. Stonewall Casual......
  • State ex rel. Kenamond v. Warmuth, No. 17566
    • United States
    • Supreme Court of West Virginia
    • February 23, 1988
    ...pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course." See Vanover v. Stonewall Casualty Co., 169 W.Va. 759, 762, 289 S.E.2d 505, 507 (1982). We agree with the circuit court that OVMC waived the privilege to assert improper venue as a defense, and t......
  • Request a trial to view additional results
11 cases
  • Leslie Equipment v. Wood Resources, L.L.C., No. 34712.
    • United States
    • Supreme Court of West Virginia
    • October 30, 2009
    ...service of process by publication ... the appellants waived their objections."); Syl. pt. 1, in part, Vanover v. Stonewall Cas. Co., 169 W.Va. 759, 289 S.E.2d 505 (1982) ("Where a defendant ... fails to appear and allows a default judgment to be taken, the default judgment cannot ......
  • State v. Stucky, No. 13–0438.
    • United States
    • Supreme Court of West Virginia
    • November 7, 2013
    ...be tried.” Syllabus Point 7, Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963).’ Syllabus Point 2, Vanover v. Stonewall Casualty Co., 169 W.Va. 759, 289 S.E.2d 505 (1982).” Hansbarger, 177 W.Va. at 157, 351 S.E.2d at 70. Furthermore, “[s]ubject matter jurisdiction cannot be conferred by c......
  • Hansbarger v. Cook, Nos. 17098
    • United States
    • Supreme Court of West Virginia
    • November 26, 1986
    ...tried.' Syllabus Point 7, Lester v. Rose, 147 W.Va. 575, 130 S.E.2d 80 (1963)." Syllabus Point 2, Vanover v. Stonewall Casualty Co., 169 W.Va. 759, 289 S.E.2d 505 (1982). Subject matter jurisdiction cannot be conferred by consent or waiver, but venue may be. Vanover v. Stonewall Casual......
  • State ex rel. Kenamond v. Warmuth, No. 17566
    • United States
    • Supreme Court of West Virginia
    • February 23, 1988
    ...pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course." See Vanover v. Stonewall Casualty Co., 169 W.Va. 759, 762, 289 S.E.2d 505, 507 (1982). We agree with the circuit court that OVMC waived the privilege to assert improper venue as a defense, and t......
  • Request a trial to view additional results

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