Warren v. Saunders

• Decision Date: 09 March 1876
• Parties: WARREN v. SAUNDERS.
• Court: Virginia Supreme Court

68 Va. 259

WARREN v. SAUNDERS.

Supreme Court of Appeals of Virginia.

March 9, 1876

1. W sues S in assumpsit in the county of J, and sends the process to the city of R, where S resides, and it is served upon S by the sheriff of R. S files a plea in abatement stating these facts, but does not say where the cause of action arose. HELD: The plea is sufficient in this case, though it does not give the plaintiff a better writ.

2. W having demurred to the plea, and the court having sustained the demurrer, when the cause is called for trial S moves to dismiss the cause from the docket. HELD: The motion should have been sustained and the suit dismissed; the statute expressly providing that when the suit is brought where the cause of action arose, process shall not be directed to an officer of any other county or corporation than that wherein the action is brought.

This is a supersedeas to a judgment of the late district court of appeals for the third judicial circuit, reversing a judgment of the circuit court for the city of Williamsburg and county of James City, rendered in a certain matter of controversy therein depending, wherein the plaintiff in error, James R. Warren, was plaintiff, and the defendant in error, Edmund A. Saunders, was defendant. The following is a statement of the case.

On the 16th day of February 1869, a summons was issued by the clerk of the said circuit court, directed to the sheriff of the city of Richmond, commanding him to summon the said Saunders to appear at the clerk's office of the said circuit court at the rules to be holden for the said court on the first Monday in March 1869, to answer the said Warren of a plea of trespass on the case, assumpsit, & c. This summons was executed by a deputy of the sheriff of the city of Richmond, and was returned with a return thereon endorsed and signed by the said deputy, stating that it was " executed, March 1st 1869, on E. A. Saunders, by delivering to him a copy of the within."

At March rules 1869 the plaintiff filed his declaration in the case, which contained two counts, one a special count for a lot of wood, estimated to contain two hundred and seventy cords, lying at " Perry's landing" on the Chickahominy river, and bargained and sold by the plaintiff to the defendant on the terms in the said special count mentioned; and the other a general count for one hundred and ten cords of pine wood, sold and delivered by the plaintiff to the defendant.

Whereupon the defendant appeared and filed his plea in abatement, to which the plaintiff demurred, and the defendant joined in demurrer.

By the said plea the defendant appeared in proper person and craved oyer of the writ, which was read to him, and, with the return endorsed thereon, inserted in the plea. The defendant then in his said plea " prays judgment of the writ aforesaid and says that this court ought not to have or take further cognizance of said action, because he says that it appears by said writ that he the said defendant is not sued with any person residing in the city of Williamsburg or the county of James city, and that the said writ is issued against the said defendant alone, and that the said writ is directed to the sheriff of the city of Richmond, and that the endorsement on said writ shows that the said writ was served upon said defendant by the sheriff of the city of Richmond by deputy. And the said defendant in fact says, that at the time of the issuing of said writ, and at the time of the service thereof upon him, he was, and ever since has been, and is now a resident of the city of Richmond, and that the said writ was served upon him in the city of Richmond, and that he is not sued with any person residing in the city of Williamsburg or the county of James City; and this the said Saunders is ready to verify: wherefore he prays judgment of the said writ, and that the same may be quashed," & c.

There is an affidavit of the truth of the plea annexed thereto which bears date on the 1st day of March 1869, the very day on which the summons was executed on the defendant.

At May term 1869 of the said circuit court the said demurrer was argued and sustained, and the defendant was ordered to answer further to the declaration; and the cause was continued until the next term.

At which term, to wit: on the 27th day of November 1869 the defendant moved the court to dismiss the cause from the docket; which motion was overruled, and the defendant excepted. He then plead non assumpsit, on which issue was joined, and there was a trial by jury and a verdict for the plaintiff, whose damages were assessed at $500 whereupon the defendant moved the court to set aside the verdict and grant a new trial, on the ground that the verdict was contrary to the law and the evidence; but the court overruled the motion, and rendered judgment according to the verdict.

During the progress of the trial, at the instance of the defendant three bills of exceptions were signed and sealed by the court and made a part of the record. No. 1 was to the action of the court, in overruling his motion to dismiss the case; No. 2 was to the action of the court in overruling a motion for a continuance; and No. 3 was to the action of the court in overruling his motion for a new trial; in which last bill the facts proved on the trial were certified. But it will be unnecessary here to notice further any of these bills except No. 1.

That bill states, that at the calling of the cause, at the November term of the court the defendant moved the court to inspect the writ, which was accordingly done by the court and to dismiss the case from the docket, upon the ground that it appears by said writ that the defendant is the sole defendant in this action, and is a resident of the city of Richmond, and was at the time of the suing out said writ, and the said writ was issued by the clerk of the circuit court for the city of Williamsburg and the county of James City and directed to the sheriff of the city of Richmond, and was served upon the defendant in the city of Richmond by the deputy sheriff of said city; which motion the court overruled, and refused to dismiss the case from the docket; and the defendant excepted.

To the said judgment of the circuit court the defendant applied to a judge of the said district court for a supersedeas, which was accordingly awarded; the errors in said judgment as assigned in the petition for a supersedeas being, 1st, in sustaining the demurrer to the plea in abatement, and in refusing to quash the writ, and in compelling the defendant to answer further; 2d, in overruling the defendant's motion to dismiss the case from the docket; and 3d, in overruling the defendant's motion for a new trial.

On the 4th day of January 1870 the case came on to be heard in the said district court upon the supersedeas, when it seemed to the court that there was error in the judgment of the circuit court in this, that the defendant's plea in abatement to the writ was good and sufficient in law, and that the court below erred in sustaining the plaintiff's demurrer to the said plea in abatement. Therefore the judgment of the circuit court was reversed, the said demurrer was overruled, the said plea was adjudged to be good and sufficient in law; and the cause was remanded to the circuit court, with instructions to direct that the plaintiff join issue in fact on said plea; and the defendant recovered his costs in the district court.

To the said judgment of the district court the plaintiff applied to a judge of this court for a supersedeas; which was accordingly awarded.

Jones & Bouldin, for the appellant.

Cannon & Courtney, for the appellee.

OPINION

MONCURE, P.

After stating the case he proceeded:

There can be no doubt but that the summons by which the action was commenced in this case was illegal and void, and ought to have been quashed, if the facts appeared and the question was properly presented to the circuit court. The action was brought in the circuit court of the city of Williamsburg and county of James City, and was commenced by the issuing of a summons which bore date on the 16th day of February 1869, before the declaration was filed. There was but one defendant in the action, Edmund A. Saunders, who resided in the city of Richmond. The supposed cause of action, it seems, arose in the county of James City. The summons was directed to the sheriff of the city of Richmond, to whom it was sent, and by whose deputy it was executed and returned, with an endorsement thereon showing the time and manner of its execution. It was without any authority of law that this summons was directed to the sheriff of the city of Richmond.

The Code, chapter 165, section 1, provides, that " any action at law or suit in equity, except where it is...