Williamson v. Taylor

• Citation: 122 S.E. 530,96 W.Va. 246
• Decision Date: 08 April 1924
• Docket Number: 4919.
• Parties: WILLIAMSON v. TAYLOR.
• Court: West Virginia Supreme Court

122 S.E. 530

96 W.Va. 246

WILLIAMSON v. TAYLOR.

No. 4919.

Supreme Court of Appeals of West Virginia.

April 8, 1924

Submitted February 19, 1924.

Syllabus by the Court.

Under section 1, c. 121, Barnes' Code 1923, a summons may be served by leaving a copy thereof posted at the front door of defendant's usual place of abode, if neither the defendant's wife nor any other person, who is a member of defendant's family, and above the age of 16 years, be found there, and the defendant be not found.

Under the statute "the usual place of abode" means the customary place of abode at the very moment the writ is left posted; hence, where the writ is left posted at a former place of abode, but from which defendant had, in good faith removed, and taken up his place of abode elsewhere, service so had is ineffective and invalid.

Error to Circuit Court, Cabell County.

Action by E. P. Williamson against W. L. Taylor. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

W. L Taylor, of Logan, and Jean F. Smith, of Huntington, for plaintiff in error.

Simms & Staker, of Huntington, for defendant in error.

MEREDITH P.

Defendant seeks to reverse a judgment rendered against him by the circuit court of Cabell county in an action of debt upon certain notes.

The summons was issued June 27, 1922, returnable to July rules. It was executed June 28th, as shown by the return:

"By posting, and leaving posted, a true copy thereof on the front door of the usual place of abode of W. L. Taylor, 1018 Tenth Ave., in Cabell county, W.Va., the said W L. Taylor not being found at his usual place of abode in Cabell county, W.Va., on the above date, his wife and no member of his family being found at his usual place of abode in Cabell county, W.Va., on the above date."

In defendant's special plea in abatement, filed in due time, he alleges that, at the time of the alleged service of summons in the case, he had no usual place of abode in Cabell county, W.Va., but that his usual place of abode was at Omar, Logan county, W Va., and that the alleged service of summons, by posting a copy thereof at the front door of the supposed place of abode of the defendant, was without authority. The issue joined thereon was tried by the court. Defendant did not formally waive a jury and he assigns this as error; but we prefer to dispose of the issue on the merits, rather than upon a mere technicality. The court found that defendant's usual place of abode was at No. 1018 Tenth avenue, in the city of Huntington, refused to sustain the truth of the plea, and to dismiss the action. Defendant took proper exceptions to the finding of the court, pleaded nil debet, issue was joined, and the case was tried by a jury, resulting in a verdict and judgment for plaintiff.

While a number of errors are assigned, relating to the trial of the case before the jury, we deem it proper to discuss but the one raised by defendant's plea in abatement. If the court did not obtain jurisdiction by process duly served upon the defendant, then it could not proceed to trial of the main issue. After raising that issue by plea, if that question was decided against him, he did not waive it by pleading the general issue as to the debt declared on, and proceeding to trial thereon.

Our statute (section 6, c. 124, Barnes' Code 1923) provides that a summons may be served as a notice is served under section 1, c. 121, of the Code. Section 1, c. 121, provides:

"A notice, no particular mode of serving which is prescribed, may be served [[[1] by delivering a copy thereof, in writing, to the party in person; or [2] if he be not found, by delivering such copy at his usual place of abode, to his wife or to any other person found there who is a member of his family, and above the age of 16 years, and giving information of the purport of such copy to the person to whom it is delivered; or [3] if neither his wife nor any such other person be found there, and he be not found, by leaving such copy posted at the front door of said place of abode."

The point of inquiry is whether defendant's usual place of abode on June 28, 1922, the date the summons for him was left posted on the front door of a room in a building at 1018 Tenth avenue, in Huntington, was in that room. If that was then his usual place of abode, the service was valid; if it was not, the service was not a legal service.

In discussing this statute in Capehart, Adm'r, v. Cunningham, Adm'r, 12 W.Va. 750, Judge Moore says:

"What does the statute mean by the expression 'his usual place of abode'? When we consider that the object of the statute was to enable the defendant to know, or have notice, of the action against him, that he might protect his rights therein, it is clear the statute meant his usual place of abode eo instanti that the summons was posted, not a place of casual abode, but one of present abiding. It would be absurd to hold that a boarding house, or place where a person stopped temporarily when visiting a city or country, on matters of business, or socially, should be considered his usual place of abode when his visit or stay had ended, and he absent, so as to make the posting of a summons on the front door thereof legal notice."

In Grant v. Dalliber, 11 Conn. 234, the defendant had been living with his family in his dwelling house in Torrington, but, while he was confined in state's prison at Wethersfield, service of a writ was had by leaving a copy "at his usual place of abode," in Torrington, where his family was then residing. It was held that the prison was not his usual place of abode, since he was restrained there against his will, and had a place of abode at Torrington.

But in Dunn's Appeal, 35 Conn. 82, the statute required that service of an application for the appointment of a conservator, should be made by leaving a copy at the usual place of abode of the respondent. Dunn, the respondent, was in the county jail as a prisoner, and the house where he last resided had, while he was imprisoned, been sold by a trustee of his estate and possession taken by the purchaser. It was held that service might be had by leaving a copy with him at the jail, since he then had no other place of abode.

In White v. Primm, 36 Ill. 416, it was held that a hotel or boarding house at which a stranger from another state is sojourning for a few days is not to be considered his usual place of abode for the service of process, under a statute similar to ours.

In Kline v. Kline, 104 Ill.App. 274, it was held that leaving the summons at defendant's former place of residence with a person not a member of her family, who immediately forwarded it to defendant, did not satisfy the statute which provided that it should be left at the defendant's usual place of abode with some person of the family, of the age of 10 years or upwards, and informing such person of the contents thereof.

In Norton's Estate, 32 Misc. 224, 66 N.Y.S. 317, it was held that, where it appears that a defendant, at the time of an alleged substituted service on him by leaving a copy of the summons at his...