White v. White
| Decision Date | 26 October 1909 |
| Citation | 66 S.E. 2,66 W.Va. 79 |
| Parties | WHITE et al. v. WHITE et al. |
| Court | West Virginia Supreme Court |
Submitted February 17, 1909.
Syllabus by the Court.
Acceptance of notice to take depositions by a party not served with process does not amount to appearance in the suit or action.
Where there are a number of adult defendants, some served, others nonresidents and proceeded against by order of publication, a judgment or decree reciting in general terms the appearance of the adult defendants without naming them will be construed as including only the persons served with process.
Acceptance generally of service of process of a circuit court or of this court by a nonresident defendant outside the state will have no other effect than service on the acceptor outside the state or order of publication duly published and posted as provided by statute.
In order that the affirmance here of a final decree shall operate to deprive an adult nonresident defendant, not served with process or appearing, and who did not join in the appeal, to a rehearing pursuant to sections 3816, 3819, Code 1906, or an infant defendant within six months after attaining his majority from showing cause against the same such final decree must have been jointly against all, and the parties appealing and the parties not appealing must stand upon the same ground, and their rights be involved in the same question, and be equally affected by such decree.
Appeal from Circuit Court, Logan County.
Payne & Payne and Berkeley Minor, Jr., for appellants.
Lilly & Shrewsbury, for appellees.
MILLER P.
We have here a sequel to White v. White, 64 W.Va. 30, 60 S.E. 885. After the original decree of July 27, 1907, which denied them participation in the partition decreed, was affirmed here, Hattie Glover (née Riffe), a nonresident defendant, proceeded against by publication, and her infant sister, Addie Riffe, represented originally by guardian ad litem, but who had reached her majority, filed their separate petitions and answers in the court below, the former to have a rehearing as provided by section 3816, Code 1906, the latter proposing pursuant to section 4002, Code 1906, to show cause against said decree within six months after reaching her majority as provided thereby. Hattie Glover also sought to file a second petition for relief against said decree on the ground alleged that the attorney employed by her, the husband of one of the partitioners, had in the interests of his wife fraudulently failed and neglected to file any answer or make any defense whatsoever for her to the original bill. From the decree below of July 29, 1908, denying them the relief prayed for, dismissing their petitions, and refusing to file their answers, petitioners have appealed.
Appellants proposed to show by their answers contrary to the allegations of the original bill that the deed of James M. White, their maternal grandfather, to their father, John Riffe, of January 16, 1885, for 370 acres of land, was not an advancement to their mother, Minerva Riffe, deceased, but had been made upon full and adequate consideration paid the grantor, to wit $500 in cash, labor amounting to $110, and other payments amounting in all to $1,300. In his cross-bill answer A. B White, one of the appellants in the original appeal, though admitting the charge that said conveyance to John Riffe was an advancement to Minerva Riffe, alleged that his father years before, when he first bought the land out of which this and other alleged advancements had been made, entered into a contract with him and his brother, J. N. White, and said John Riffe, that, if they would pay for the land, he would in consideration thereof deed to them portions thereof; that, pursuant to said agreement, he had paid $900 thereon, and was informed that J. N. White and John Riffe had paid $1,000 thereon. In their special reply to this cross-bill answer plaintiffs denied this allegation. The decree appealed from filing said cross-bill and reply thereto also recites that the guardian ad litem for the said Addie Riffe and the other infant defendants also filed their reply thereto, and that thereupon the adult defendants appeared thereto, and that each thereby adopted the special reply of plaintiffs to said cross-bill as their reply thereto. The answer on behalf of said infants committed them and their rights to the protection of the court, and prayed that no decree be entered or pronounced which would tend to their prejudice. This answer was sufficient, as far as the infant defendants were concerned, to put plaintiffs on proof of all material allegations of the bill. Glade Coal Mining Co v. Harris, 65 W.Va. 152, 63 S.E. 873.
Are appellants or either of them entitled to a rehearing of the former decree? First as to Hattie Glover. It is claimed she is concluded and estopped by the original decree affirmed here on several grounds: First, by her acceptance of notice to take depositions; second, by the recital in said decree showing appearance of all adult defendants to said cross-bill answer, and the adoption by them of the special reply of plaintiffs' as their answer thereto; and, third, if not by these matters, that by acceptance of service of the process of this court she thereby voluntarily submitted herself to the jurisdiction of the court and is concluded by the affirmance here of the decree below; and, fourth, that whether otherwise concluded that this court, having once examined said decree upon the appeal of codefendants, will not again re-examine it on her appeal. We will consider these points in the order recited. The universal rule is that a court can acquire jurisdiction of the person of a defendant only by service of process within its jurisdiction, or by voluntary appearance in the suit or action. Does acceptance of notice to take depositions by a nonresident not served amount to a voluntary appearance? Decisions say this will not do; that the appearance must be in the suit or action by entry of record, by motion, plea, or answer filed. Anderson v. Anderson, 55 Mo.App. 268, 274, 275; Bentz v. Eubanks, 32 Kan. 321, 4 P. 269; Scott v. Hull, 14 Ind. 136. The same thing is intimated in our own case of Frank v. Zeigler, 46 W.Va. 614, 618, 619, 33 S.E. 761. Our Code (section 3815, Code 1906) gives service of process outside the state the effect only of order of publication. to the same effect are Weatherbee v. Weatherbee, 20 Wis. 499; McCormack v. Bank, 53 Ind. 466; Bank v. Rogers, 12 Minn. 529 (Gil. 437).
But is Hattie Glover concluded by the recital in the final decree? She was only one of a number of adult defendants, all served except herself and two others. The names of the adult defendants thus appearing are not recited, and, if we should construe the decree as including Hattie Glover, we would have her adopting the allegations of the special reply of plaintiff to said cross-bill directly antagonistic to her and her sister's interests, and contrary to the positive allegations of her answer. What construction should be given the decree? It is undoubtedly the law that recitals of jurisdictional facts in a decree, as that defendants were duly served with process, and the like, are conclusively presumed to be true, unless there is something in the record showing the contrary. Moore v. Green, 90 Va. 181, 17 S.E. 872; Hill v. Woodward, 78 Va. 765; Ferguson v. Teel, 82 Va. 690; Black on Judgments, § 273. To illustrate the application of this rule, Black, at page 412, among other California cases, refers to Reily v. Lancaster, 39 Cal. 354, construing recitals in tax judgments controlled we think by statute, and not falling under the general rule, for see Branson v. Caruthers, 49 Cal. 374, 380. The facts recited in the decree in question were not necessary to the validity thereof. Constructive service by publication was all that was necessary to give the court jurisdiction to pronounce the decree. While authorities may be found to the contrary, the better considered cases hold, and the weight of authority seems to be, that when, as in this case, the decree in general terms recites appearance of parties, the appearance will be confined to those parties served with process. 2 Ency. Pl. & Prac. 600, and cases cited in notes. Three of these cases--Crump v. Bennett, 2 Litt. (Ky.) 213; Streeter v. Marshall Silver Mining Co., 4 Colo. 535; and Clemson v. Ill. St. Bank, 2 Ill. 45--are cited for the proposition that, "where pleas are filed purporting to be filed by defendants generally, this will not be an appearance, for those defendants not served with process." We are of the opinion upon these authorities and the facts and circumstances of this case that the recital in said decree ought not to be construed to include Hattie Glover.
Did she then submit herself to the jurisdiction of the court by acceptance of the appellate process of this court? Generally when process is accepted within the jurisdiction of a court, it is sufficient to confer jurisdiction to pronounce judgment by default. Marling v. Robrecht, 13 W.Va. 440, 463; 19 Ency. Pl. & Prac. 703, and cases cited in notes. But when service is so accepted without the state, unless, as some cases hold, it be otherwise specifically stipulated in the acceptance, it will amount to no more than order of publication. Smith & Wimsatt v. Chilton, 77 Va. 535; 19 Ency. Pl. & Prac. 702, and notes. One case at least holds that such a stipulation to waive any other service is not sufficient to give the...
To continue reading
Request your trial