F. C. Welch Co. v. Barrett MacHine Co.

West Virginia Supreme Court

F. C. Welch Co. v. Barrett MacHine Co.

145 S.E. 40, 106 W. Va. 138, 1928 W. Va. LEXIS 147

CourtWest Virginia Supreme Court

DecidedOctober 2, 1928

Docket6212

StatusPublished

This text of 145 S.E. 40 (F. C. Welch Co. v. Barrett MacHine Co.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

F. C. Welch Co. v. Barrett MacHine Co., 145 S.E. 40, 106 W. Va. 138, 1928 W. Va. LEXIS 147 (W. Va. 1928).

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Opinion

*139 Hatcher, Judge:

This action was instituted before a justice of the peace. There was no appearance by the defendant and the plaintiff' recovered judgment. Defendant perfected an appeal to the circuit court and then “specially appearing” moved to' quash the return. The court sustained the motion and dismissed the ease.

The ruling of the court was erroneous. The appeal was a voluntary submission to the jurisdiction of the court. It constituted a general appearance and was a waiver of any defect in the service of process. Snyder v. Lyons, 94 W. Va. 489; Smith v. Thompson, 85 W. Va. 364, 366. “If, in an action, pending before a justice of the peace, a judgment is rendered as upon default against a defendant who has not been duly served with a summons, and such defendant appears within ten days from the rendition of the judgment and presents an appeal-bond to be filed and approved by the justice, which is accordingly done, he thereby, appears in the action, and submits to the jurisdiction of the court, and cannot afterwards be allowed to deny such jurisdiction.” Haas & Co. v. Lees, 18 Kan. 449; Swingly v. Haynes, 22 Ill. 214; Fee v. Iron Co., 13 Ohio St. 563; Cohn v. Clark, 48 Okla. 500, Hauptman Co. v. Unverferth, 288 Mo. 52, 35 C. J. section 480, p. 784.

The judgment of the circuit court is accordingly reversed.

Reversed.

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*139 Hatcher, Judge:

This action was instituted before a justice of the peace. There was no appearance by the defendant and the plaintiff' recovered judgment. Defendant perfected an appeal to the circuit court and then “specially appearing” moved to' quash the return. The court sustained the motion and dismissed the ease.

The ruling of the court was erroneous. The appeal was a voluntary submission to the jurisdiction of the court. It constituted a general appearance and was a waiver of any defect in the service of process. Snyder v. Lyons, 94 W. Va. 489; Smith v. Thompson, 85 W. Va. 364, 366. “If, in an action, pending before a justice of the peace, a judgment is rendered as upon default against a defendant who has not been duly served with a summons, and such defendant appears within ten days from the rendition of the judgment and presents an appeal-bond to be filed and approved by the justice, which is accordingly done, he thereby, appears in the action, and submits to the jurisdiction of the court, and cannot afterwards be allowed to deny such jurisdiction.” Haas & Co. v. Lees, 18 Kan. 449; Swingly v. Haynes, 22 Ill. 214; Fee v. Iron Co., 13 Ohio St. 563; Cohn v. Clark, 48 Okla. 500, Hauptman Co. v. Unverferth, 288 Mo. 52, 35 C. J. section 480, p. 784.

The judgment of the circuit court is accordingly reversed.

Reversed.

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Bluebook (online)

145 S.E. 40, 106 W. Va. 138, 1928 W. Va. LEXIS 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/f-c-welch-co-v-barrett-machine-co-wva-1928.

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