Dillard v. Central Virginia Iron Co.

1 S.E. 124, 82 Va. 734, 1887 Va. LEXIS 139

• Court: Supreme Court of Virginia
• Decided: January 13, 1887
• Status: Published

Opinion

Richardson, J.

(after stating the case), delivered the opinion of the court.

The sole question to be decided by this court is, Did the circuit court err in its said judgment of July 16, 1885, in annulling the previous judgment by default rendered at the October term, 1882, and in quashing the execution which issued thereon? We are of opinion that said judgment by default, entered at the October term, 1882, of the circuit court of Amherst county, was void for want of jurisdiction in the court to render it, the defendant not having been notified as required by law, and that there is no error in the judgment complained of reversing and annulling said previous judgment and quashing the execution which issued thereon.

The question will be considered, first, upon the record of the action at law alone; secondly, upon the whole matter as' presented by the bill of exceptions of the plaintiff in error. It may be observed at the outset, that while it is well settled that every reasonable presumption will be indulged in support of the regularity of the proceedings and the validity of the judgment of a court of competent general jurisdiction, when both the subject matter and the parties are within the territorial limits of the court’s jurisdiction; yet, even with respect to such a court, no presumption is allowable when the want of jurisdiction affirmatively appears on the face of its proceedings. For a full discussion of this subject, see notes to Crepps v. Daiden, 1 Smith, Lead. Cas. (7 Am. Ed.) 1125; Galpin v. Page, 18 Wall. 350; Bigelow v. Forrest, 9 Wall. 339; Windsor v. McVeigh, 93 U. S. 274; Wade v. Hancock and Agee, 76 Va. 620; and Hill v. Woodward, 78 Va. 767.

The trouble in the case in hand grew out of the misuse of the process to commence a suit, issuing from the court in which the suit was brought, and directed to the sheriff of that county but which was sent beyond the jurisdictional limits of the court into another State, and there attempted to be served upon the president of the defendant company, a corporation created under the laws of this State.

In order properly to understand the effect of the several legislative enactments in regard to the service of process on corporations, it is necessary to consider them in connection with the provisions of chapter 165, Code 1873, prescribing where suits shall be brought, and with the provision contained in section two, of chapter 166, which directs what officer may execute process.

By section one of said chapter 165, it is provided, first, that “any action at law, or suit in equity, except where it is otherwise specially provided, may be brought in any county or corporation wherein any of the defendants may reside. Secondly. If a corporation be a defendant, wherein its principal office is, or wherein its mayor, rector, president, or other chief officer resides. Thirdly. If it be to recover land, or subject it to a debt, or be against a defendant who resides without, but has estate or debts due him within this State, where such land, estate or debts, or any part thereof, may be. Other provisions of said first section need not be referred to here, as they have no application to the case in hand.

By the second section of same chapter it is provided: “An action may be brought in any county or corporation wherein the cause of action, or any part thereof, arose, although none of the defendants reside therein.”

The second section of chapter 166, Code 1873, provides: “ Process from any court, whether original, mesne, or final, may be directed to the sheriff of any county or sergeant of any corporation, except that process against a defendant (unless a railroad, canal, turnpike, or telegraph company be a defendant) to answer in any action brought under the second section of chapter one hundred and sixty-five, shall not be directed to an officer of any other county or corporation than that wherein the action is brought.”

Now, looking to the record of the suit at law, we find that it was an action of debt, against the defendant corporation, in the circuit court of Amherst; that the process was directed to the sheriff of Amherst cornty; and that there was no service by any officer, on any person in any way representing the defendant company, in the State of Virginia.

The record, at law, does not show where the domicile of the defendant company was. It’s <u micile must necessarily have been (1) in the county of Amherst, where the suit was brought, or (2), out of the county of Amherst, and elsewhere in Virginia, or (3), outside of the State of Virginia.

1st. If the defendant company had its domicile in Amherst county, as might be inferred from the fact that the process to commence the suit was directed to the sheriff of that county, then it was not a non-resident defendant, and there was no necessity, and certainly no legal authority for sending the process, thus directed, to Philadelphia, and no kind of service outside the State could be lawful or valid. It is true, that under section two of chapter 166, any process may be executed on or before the return day thereof; and if it appear to be duly served and good in other respects, it shall be deemed valid, although not directed to any officer, or if directed to an officer, though executed by any other to whom it might lawfully have been directed. The obvious meaning of this provision is, that although the process be directed to an officer to whom, under said second section, it is lawfully directed, yet it may be executed by any other officer to whom it might lawfully have, been directed. Clearly, then, this provision has no application to the case in hand, as it cannot be pretended that the process in the case under consideration, though directed to the sheriff of Amherst, could have been lawfully directed to the person in Philadelphia who made the affidavit of service relied on by the plaintiff in error. Moreover, under said section two of chapter 166, the defendant corporation not being a railroad, canal, turnpike, or telegraph company, and the cause of action having arisen in said county of Amherst, which authorized the plaintiff to sue in said county, although the defendant did not reside therein, as provided by section two of chapter 165, yet process against the defendant company could not have been directed to, or executed by, an officer of any other county or corporation than that wherein the action was brought. It is, therefore, clear that the provisions of said section apply only to the execution of process by an officer of the county wherein the suit is brought, and to whom the process is, or might have been, lawfully directed. See Warren v. Saunders, 27 Gratt. 264.

2d. The same reasoning holds good if the defendant was a Virginia corporation, not domiciled in Amherst county when the suit was brought, and the affidavit of service, in the city of Philadelphia, relied on by the plaintiff in error, was void service for the additional reason that the only ground of jurisdiction in Amherst, against a single defendant, resident elsewhere in the State, would be, as already shown, that the cause of action arose in that county; in which case the statute (Code 1873, ch. 166, sec. 2,) expressly forbids the process to be sent out of the county. See also, Warren v. Saunders, supra.

3d. But grant that the defendant company was a non-resident corporation when the suit at law was brought, and that the circuit court of Amherst had jurisdiction under the third clause of section one of ch. 165, and might have proceeded by order of publication, the defendant being a non-resident and having estate in the county where the suit was; but as there was no attachment or other proceeding in rem, the court, was without jurisdiction to render said judgment at law of October term 1882.

In Pennoyer v. Neff, 95 U. S. 715, it is said: “Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the object of proceedings taken where property is once brought under the control of the court by seizure or some equivalent act. ***** Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the State, or of some interest therein, by enforcing a contract or a lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceedings in rem. But where the entire object of the action is to determine the personal rights and obligations of the defendants—that is, where the suit is merely in personam, constructive service in this form upon a non-resident in ineffectual for any purpose. Process from the tribunals of one State cannot run into another State, and summon parties therein domiciled to leave its territory and respond to proceedings against them.” This principle is illustrated by the cases of Poindexter v. Burwell and Wimer v. Wimer, recently decided by this court, and reported in this volume. Upon the hypothesis that the defendant company, in the case in hand, was a non-resident, these authorities are conclusive.

Again: jurisdiction of a suit against a corporation is, by the second clause of sec. seven, ch. 166, Code 1873, in the county or corporation “wherein its chief office is, or wherein its chief officer resides.” In this case, the right to bring the suit in the county of Amherst could only have been because the chief office of the defendant corporation was therein situated, as it appears by the record that William B. Hart was the president of the defendant company, and that he resided in Philadelphia. If, then, the ground of jurisdiction was that the chief office of the company was in Amherst county, the defendant must have been a Virginia corporation, and there was no lawful authority for sending the process into another State for any purpose. The provisions thus far examined with respect to the service of process, were designed to prescribe the lawful mode of making personal service of process upon natural persons, and they have no application to the mode of service upon corporations.

But, by the seventh section of said chapter 166, the manner of service of process upon corporations is expressly prescribed. It is sufficient to serve it on the president, or other officer or agent, as therein designated. Such service must be in the county or corporation in which he, upon whom it is served, resides, and the return must show this, or it is not valid. It is entirely clear, too, that this section seven refers to service in this State, on an officer or agent resident in this State, and that none of its provisions have any application to process sent for personal service, outside of the State, on a non-resident defendant, as a substitute for an order of publication.

Clearly, then, upon the record which the circuit judge was reviewing, this was a case in which, as was said by Moncure, P., in Warren v. Saunders, supra, “the court may, ex-officio, and a fortiori, upon motion, abate.” But.it is insisted that the service of process in this case, as set forth in the affidavit of Thos. G. Midlen, appended thereto, is sufficient under the 15th section of chapter 166, Code 1873. But this position is clearly untenable. The object of this section is to prescribe where a case may be tried after publication. It contains, too, a clause with respect to personal service, which is in this language: “Personal service of the summons, scire facias, or notice, may be made by any person not a party to or otherwise interested in the subject matter in controversy, on a non-resident defendant out of the State, which service shall have the same effect, and no other, as an order of publication duly posted and published against him. In such case the return must he made under oath, and must show the time and place of such service, and that the defendant so served is a non-resident of this State.”

Doubtless, the personal service referred to in this section was intended, in a certain sense, to be in lieu of publication, but only as to natural persons who are non-resident defendants. It has no application to a non-resident defendant corporation. And in this case, even if the plaintiff had resorted to the ancillary proceeding by attachment, tbe “personal service” referred to and authorized by said 15th section on a non-resident, must be on him, not on any agent or representative. In many cases this mode of substituted service is not only more convenient, , but cheaper, more expeditious, and equally reliable as publication, and the statute permits it, in a proper case, on the nonresident in person. It is, however, in derogation of the common law, and the statute permitting it must be literally complied with. It is obvious that service on an agent or representative» no matter what his relation to the defendant may be, is not personal service on him. Indeed, service on an agent in this State, except when so expressly provided, cannot dispense with publication as to the non-resident defendant, whether a natural person or a corporation.

It is evident in this case that the service of process was intended to be under said section 15 of chapter 166. The affidavit, however, not only follows the language of the statute, but goes further, and, after the clause stating the delivery of •a copy of the summons to W. R. Hart, adds the words, “of which said Hart made due acknowledgment of the service.” These words are not found in the statute, and it may be askéd, by what authority did the maker of this affidavit undertake to say what constitutes “due acknowledgment of the service”? Grant, for the sake of the argument, that Hart was the president of the defendant corporation, that did not constitute him an agent of the company to acknowledge service of process, or otherwise to dispense with due and regular procedure against it. The affidavit is, in this respect, purely ex parte and unauthorized by law, and cannot be takén as proof of acknowledgment of service. If Hart was president of the company, and had authority to acknowledge service of process, the plaintiff should have shown it, and then his acknowledgment in writing, signed by him and endorsed on the writ, would have been sufficient. In every point of view, it is clear that the mode of service relied on was unauthorized and is invalid. It is, therefore, plain that upon the record at law, which the circuit judge was reviewing, this was a case in which, as was said by Moncure, P., in Warren v. Saunders, supra, “ the court may, ex-officio, and a fortiori, upon motion, abate the writ or the suit” (here the execution and judgment), “as the nature of the matter may require.”

It only remains to notice briefly the view of the case presented by the bill of exceptions taken by the plaintiff in error to the judgment of the circuit judge sustaining the motion below. The bill of exceptions sets forth all the evidence adduced on the hearing of the motion below, being the proceedings and judgment at law, the bill of the complainant, the defendant in error here, the object of which was to avoid a certain deed of trust, and to enforce the said judgment against the property thereby conveyed, and also against the land sold by the complainant to said defendant; and the answer of the defendant corporation, in which are certain admissions. In said answer the defendant company acknowledged the justness of the debt, and that the complainant had taken the judgment, an abstract of which she had filed with her bill; states the regret of the defendant’s officers that the debt wTas unsatisfied; denies the validity of the grounds on which the deed of trust was assailed, and points out that the intention and effect, under the statute, was to put all unsecured creditors, who unlike the plaintiff, had no special security, on the same footing, as to security by lien on other lands of the company, as the plaintiff, and the answer then proceeds to allege certain impediments and imperfection in the plaintiff’s case, claimed to be insuperable until new parties and new issues should be made-

It is insisted that these admissions as to the justness of the debt, and that the plaintiff had taken a judgment therefor) worked an estoppel to the defendant to deny the validity of said judgment. This insistance is wholly without merit. The authorities relied upon to sustain it have no bearing upon the case in hand. The admissions relied on are simple facts admitted in pleading, and are not such admissions as constitute estoppels: 2 Rob. Pr. (new) 309-310. But, aside from all other questions, the judgment was absolutely void, and was liable to be so declared and treated whenever its validity should he called in question in any court, either in a direct or collateral proceeding. Wade v. Hancock, 76 Va. 620.

In this view the judgment might have been successfully assailed by the answer in said chancery proceeding, but it was not; and the admissions aforesaid could not work an estoppel by the record, because the judgment being void for want of jurisdiction to render it, no admission, no consent, either before or after its rendition, could confer jurisdiction and render it valid. We find no error in the judgment of the court below, and the same must be affirmed with costs to the defendant in error.

Judgment affirmed.