Brannon, President:
In an action of assumpsit in the circuit court of Kana-wha County, brought upon a policy of fire insurance by Adkins and Shoemaker against the Globe Fire Insurance Company, of the City of New York, the defendant not appearing in defense, a jury tried the case, and found a verdict for the plaintiffs, on which the court entered judgment. Afterwards, during the term, the defendant appeared, and moved for a new trial, but the court refused, and the defendant comes to this Court for relief.
The error assigned is the refusal to set aside the verdict. The grounds on Which the defendant based its motion were that the verdict was contrary to the law and evidence, and because of facts shown in a petition for a new trial and certain affidavits to support it. The plaintiffs deny the right of defendant to have this Court consider the affidavits or the evidence on the ground, as claimed by them, that three papers printed in the record as bills of exception arc not part of the record, because two of them are not signed by the judge; and that, though one is signed there is no evidence in the record to show its execution. A bill of exception must be signed by the judge. Even if the record state that it was signed, and it is not, it is not good; for the bill is equally admissible as a part of the record on the question of signing, and it is found not signed. Without signature, how can we say that the bill was finally settled, or the truth stated therein, or the paper a genuine one? The order calls for a paper signed, and it is not, and cannot be the one called for by the order. The Code demands that it be signed. As early as Gordon v. Brown's Ex'r, 3 Hen. & M., 219, it was held that “a paper [386] intended as a bill of exceptions to an opinion of the district court (.two judges being present) ought not tobe considered as such, if not signed bjr both.” In Com. v. Hall, 8 W. Va., 259, though the record said a bill was signed, but it was not, this Court held that “a bill of exceptions to the opinion of the court overruling a motion for a new trial, not being signed by the judge, does not become a part of the record, and the evidence therein cannot be examined by an appellate court.” Upon a like statute with ours it has been so twice decided in Illinois. Jones v. Sprague, 3 Ill., 55; Reeves v.Reeves, 54 Ill., 332. So in various states. Throop, Trials, § 2807. This rule of practice is important to be observed. Let us see if there are three separate bills of exception, and two of them unsigned. We oug'ht to give liberal construction, to give to the party his exception. It is clear that the evidence was inserted in the bill, and later other matters were inti-oduced for new trial, and that the whole paper is but one bill, its matter put in at different times during the term, as shown by different dates of the term stated in it, and by the language in opening-, ‘-Be it remembered,” and in succeeding sections, “And be it further remembered,” and the fact that no section has any seal or signature, and that such signature and seal are in due form at the close. So we must consider the bill if the record attests its execution. This it must do. Bank v. Showacre, 26 W. Va., 49. I find an order stating that defendant moved for a new trial, and in support of his motion submitted certain affidavits and his sworn petition, and that the court refused a new trial, “to which ruling of the court the defendant objected, and prayed that said exception be signed, sealed, and saved to it, and made part of the record; which is done.” This surely attests the execution of the bill of exception.
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Brannon, President:
In an action of assumpsit in the circuit court of Kana-wha County, brought upon a policy of fire insurance by Adkins and Shoemaker against the Globe Fire Insurance Company, of the City of New York, the defendant not appearing in defense, a jury tried the case, and found a verdict for the plaintiffs, on which the court entered judgment. Afterwards, during the term, the defendant appeared, and moved for a new trial, but the court refused, and the defendant comes to this Court for relief.
The error assigned is the refusal to set aside the verdict. The grounds on Which the defendant based its motion were that the verdict was contrary to the law and evidence, and because of facts shown in a petition for a new trial and certain affidavits to support it. The plaintiffs deny the right of defendant to have this Court consider the affidavits or the evidence on the ground, as claimed by them, that three papers printed in the record as bills of exception arc not part of the record, because two of them are not signed by the judge; and that, though one is signed there is no evidence in the record to show its execution. A bill of exception must be signed by the judge. Even if the record state that it was signed, and it is not, it is not good; for the bill is equally admissible as a part of the record on the question of signing, and it is found not signed. Without signature, how can we say that the bill was finally settled, or the truth stated therein, or the paper a genuine one? The order calls for a paper signed, and it is not, and cannot be the one called for by the order. The Code demands that it be signed. As early as Gordon v. Brown's Ex'r, 3 Hen. & M., 219, it was held that “a paper [386] intended as a bill of exceptions to an opinion of the district court (.two judges being present) ought not tobe considered as such, if not signed bjr both.” In Com. v. Hall, 8 W. Va., 259, though the record said a bill was signed, but it was not, this Court held that “a bill of exceptions to the opinion of the court overruling a motion for a new trial, not being signed by the judge, does not become a part of the record, and the evidence therein cannot be examined by an appellate court.” Upon a like statute with ours it has been so twice decided in Illinois. Jones v. Sprague, 3 Ill., 55; Reeves v.Reeves, 54 Ill., 332. So in various states. Throop, Trials, § 2807. This rule of practice is important to be observed. Let us see if there are three separate bills of exception, and two of them unsigned. We oug'ht to give liberal construction, to give to the party his exception. It is clear that the evidence was inserted in the bill, and later other matters were inti-oduced for new trial, and that the whole paper is but one bill, its matter put in at different times during the term, as shown by different dates of the term stated in it, and by the language in opening-, ‘-Be it remembered,” and in succeeding sections, “And be it further remembered,” and the fact that no section has any seal or signature, and that such signature and seal are in due form at the close. So we must consider the bill if the record attests its execution. This it must do. Bank v. Showacre, 26 W. Va., 49. I find an order stating that defendant moved for a new trial, and in support of his motion submitted certain affidavits and his sworn petition, and that the court refused a new trial, “to which ruling of the court the defendant objected, and prayed that said exception be signed, sealed, and saved to it, and made part of the record; which is done.” This surely attests the execution of the bill of exception.
We now examine the grounds for a new trial. One is surprise. This is based on the claim that the company had no notice of the suit, did not know that such a suit existed until the day of trial, when, after the case was called for trial, a telegram was sent from Charleston to the agent at Wheeling, informing him of the suit, and likely this did not reach the-agent until the verdict had been rendered, and perhaps the judgment. Process was served in Ohio [387] County upon Alf Paul, as attorney in fact and of record for the company, and he accepted service besides. Paul makes affidavit that he has no recollection of service upon him, or of acceptance by him, and he is sure no copy was ever given him. The return of'an officer upon process cannot be so contradicted. Stewart v. Stewart, 27 W. Va., 168. If we recognize this return, it follows that the alleged surprise is no ground for a new trial, as a party must not neglect or forget, but must appear and defend. His negligence or his misfortune in allowing the suit to escape his memory cannot prejudice the other party, he having done all the law required of him. Post v. Carr,42 W. Va., 72, (24 S. E. 583). But is the return good on its face? I think not. It says that the summons was served “by delivering a copy to Alf. Paul, attorney in fact and of record for said Globe Fire Insurance Company.” Attorney in fact for what purpose? To make a deed, or sell property, or accept service of process? The return does not say. The rule is that, where there is sub-stitutionary service,notpersonal, the elements to make the service good in law must appear. If service be not on a defendant personally, butonsomeoneforhim, the return must state on whom service is made, and that the person is his wife, or member of his family, and over sixteen years of age, etc. The facts making the substitute a proper person for service under the law must appear. If he is president, director, cashier, or mayor, it must be so stated. This return should have stated that Paul was attorney appointed by the company to accept service of process. The sheriff must necessarily hunt and find the proper person for service, and be able to state that he is such. This return says that Paul was attorney of record. This does not help. If attorney for any purpose his power might be of record. We cannot assume therefrom that he was attorney to accept service. In fact, an appointment of an attorney for a foreign insurance company like this is not required, like a domestic corporation, under Code, c. 54, s. 24, to be recorded, but is only “filed” in the auditor’s office by chapter 34, s. 15. Frazier v. Railway Co., 40 W. Va., 224, (21 S. E. 723)( holds that a summons against a corporation “may be on any person appointed pursuant to [388] law to accept service,” and I notice the return there so showed, and I think such is the practice. The Code, in chapter 50, s. 38, which is applied by chapter 49, s. 6, requires that the return of service in suits against corporations must show “on whom” the service was. This does not mean merely his name, but his character or relation to the company to show the court that he is one who bears the relation to the company which preceding sections have pointed out as authorizing service. It must mean this, because those sections just before this pointed out the relations authorizing service. Said section pronounces a return failing to comply with it “invalid,” and judgment on service not complying with said section has been held void. Railway Co. v. Ryan, 31 W. Va., 364, 6 S. E. 924); Taylor v. Railroad Co., 35 W. Va., 328, (13 S. E. 1009). An acceptance is on the process reading: “Services accepted, Sep. 6, 1897. Alf. Paul.” Who is he? We do not know by judicial cognizance that he is this company’s attorney to accept service and he does not say so. This being a judgment by default, the return is part of the record, and for its defect the judgment could, after the term, be reversed on motion. Mulkiff v. Lusher, 27 W. Va., 439. Of course, this defect could avail on motion for a new trial made during the term. The motion for a new trial was also based “on errors apparent on the face of the record;” and there is such error in this case. The plaintiffs were present at the motion. The court, for this cause, ought to have given a new trial. (See note).
There is another reason given by counsel fora new trial. The policy was issued July 1, 1897. The house, occupied at the time as a liquor saloon, was burned on the night of July 3, 1897, at 11 o’clock, and suit was brought September 2, 1897. The policy provides that the insured shall make and furnish certain proof of loss within sixty days after the fire, and the loss shall not be payable till sixty days after such proof of loss shall be furnished. This Court held, in Peninsular Land Transp. & Mfg. Co. v. Franklin Fire Ins. Co., 35 W. Va., 666, (14 S. E. 237), that the furnishing such proof was a condition precedent to recovery on the policy; and Flanaghan v. Insurance Co., 42W.Va., 426, (26 S. E. 513), holds that the burden of showing that [389] such proof of loss was furnished is on the plaintiff. It is highly improbable that such proof was furnished so as to warrant suit on September 2d, according to plaintiff’s own evidence. It is not shown when proof of loss was furnished. Indeed, there is nothing but hearsay to show that any was ever furnished; and that evidence, if not hearsay, would be no adequate evidence. But, as section 64, chapter 125, Code, says that “if the defense be that the action cannot be maintained because of failure to perform or comply with, or violation of any clause, condition or warranty” of the policy, the defendant must plead the clause not performed, we cannot likely give defendant the benefit of this view. It might be said with some plausibility that, in the absence of such plea, the plaintiff need not have entered upon the matter in evidence; but, as he did, and failed to prove what is requisite, it is to go against him as if the defendant had pleaded it. We reverse the judgment, set aside the verdict, grant a new trial, and remand the cause for such trial.