Fisher, Sons & Co. v. Crowley

50 S.E. 422, 57 W. Va. 312, 1905 W. Va. LEXIS 40

• Court: West Virginia Supreme Court
• Decided: March 7, 1905
• Status: Published

Opinions

POEEENBARGER, JUDGE:

In an action of assumpsit brought in the circuit court of ■Cabell county, by M. Fisher, Sons & Co., against T. H. Crowley, B. L. Priddie and John J. Kearney, the summons, which was issued on the 25th of November, 1903, was made returnable “at rules to be held in the clerk’s office of said ■court on the first Monday in December next.” On the 4th day of April, 1904, the defendants appeared, and, after re■quiring securitji for costs from the plaintiffs, who were nonresidents, craved oyer of the writ, and, after it had been' read to them, moved to quash the same. The motion was overruled, a plea^of non-assumpsit tendered was rejected, for reasons which need not be stated, and judgment was rendered. Of the errors assigned, it is deemed* unnecessary to notice any except £he first one, which is founded upon the .action of the court in overruling the motion to quash.

Section 1 of chapter 12$ of the Code requires rules to be held in the clerk’s office of every circuit court on the first. Monday of every monih, except when a term of the circuit court happens to commence on the first Monday in a month, or on certain other days mentioned in said section, and provides that under such conditions- the rules shall be held on the last Monday in the next preceding month. The day on which the summons in this case was made returnable was the first day of a term of court. Hence, the rules for that month were held on the last Monday in November. Section 2 of chapter 124 of the Code requires all process to be made returnable within ninety days, to the court on the first day of the term, or in the clerk’s office to the first Monday in a month or to some rule day, unless it is otherwise provided. It is plain, therefore, that the summons could have been made returnable to the court on the day named in it as the return day thereof, but could not be made returnable to rules on that day because no rules were held, or could be held, at-that time. Literal compliance with the mandate of the writ, to the officer as well as to the defendants, was impossible. Though returnable on a day which could have been made the time for its return, had it been made returnable to the proper proceedings or tribunal, namely, the court, the officer could not return it to the court, and the defendant could not appear to it in court, without departing from its terms, because it did not command such return and appearance. It commanded them, respectively, to return the writ, and appear, not in the court, but in the clerk’s office, at a time at which no rules were held and, therefore, at which nothing could be done.

As section 2 of chapter 125 of the Code provides that rules held on the last Monday in a month shall be entered in the-rule docket and endorsed on the declaration or bill, as if taken on the first Monday of the month to which they relate, the succeeding month, it is insisted that process can be made returnable to the first Monday in that month because it is, 'in law, a rule day. As this construction of section 2 would, at least, partially nullify the provision in section 1, to which reference has been made, and make conflict between other-statutory provisions, it cannot be accepted. If process can be made returnable to that day as a rule day, any other proper proceedings at rules, sucli as the filing of pleadings, the giving of rules to plead, and the entry of conditional judgments and decrees nisi, may take place on the same day. If proceedings at rules may take place on, either the last Monday of the month preceding the term of court, or the first Monday of the succeeding month, at the election of the parties, it would be in their power to conduct all rule proceedings on the first Monday and the provision of section 1 of chapter 125 would become non-effective. A graver objection to this construction is that it would make the time qf what may be termed the legal, as distinguished from they manual, return of process, which is an important event in legal proceedings, uncertain. Upon the return to rules, the plaintiff may file his declaration or bill and have a conditional judgment or decree nisi. At the same time, the defendant is entitled to appear, and, if the plaintiff has filed his declaration or bill, to respond by proper pleadings to the merits, and, if not, to give a rule requiring the plaintiff to file his pleadings at the next rule day, on pain of being non-suited in the event of his failure to comply with the rule. The construction suggested makes it impossible for the defendant to know with certainty the time at which thése rights shall vest, respectively, in himself and the plaintiff. It is not to be assumed that the legislature intended to make him appear twice in answer to the summons in order to exercise his right to plead or obtain a rule requiring the plaintiff to plead, nor that he should be exposed to the dangers consequent upon uncertainty as to the time of appearance. If the process can be made returnable to the first Monday as a rule day, when shall the declaration be filed, on that day or in the preceding week? If, in the preceding week, it would be filed before the actual return of the process. If, on the day of the return, it would be filed at a time at which the statute impliedly says rules shall not be held, for it says that, under such conditions, they shall be held in the preceding week.

As the writ, in respect to its return day, is not in conformity with law, it is void, according to principles announced in Kyle v. Ford, 2 Rand, 1, a decision binding upon this Court, and Coda v. Thompson. 39 W. Va. 67. Kyle v. Ford holds that process returnable to á day which is not a return day is void. The statute under which that case arose required process to be made returnable to the court or to a previous* rule day and the writ had been made returnable to a day which was the first clay of a term of court and also a rule day, and was described in the writ as a rule day, just as in the summons in this case. The court, holding that it could be properly returnaable on that day to the court only, and not to rules, declared it void. See the similar case of Raub v. Otterback, 89 Va. 645. In Coda v. Thompson an attachment was made returnable more than ninety days after its date, contrary to the general statute above referred to and also to section 5 of chapter 106,. which requires an attachment to be returnable to the next term of court. Other cases, declaring the statutory provisions relating to the return of process to be mandatory and holding process not conforming thereto void, are Lavell v. McCurdy, 77 Va. 673; Warren v. Saunders, 27 Grat. 259; Gas Co. v. Wheeling, 7 W. Va. 22. A summons not signed by the clerk is so fatally defective that it cannot be amended. Laidley v. Bright, 17 W. Va. 779, 791, 792; Hickman v. Larkey, 6 Grat. 210. Such is the conclusion usually expressed by the authorities. Camman v. Perrine, 9 N. J. L. 253; Seuer v. Horst, 31 Minn. 479; Roberts v. Allman, 106 N. C. 391; Rattan v. Stone, 4 Ill. 540; Williamson v. McCornnick, 126 Pa. St. 274.

The correctness- of the main proposition asserted in these cases is verified by the common law text-writers and decisions. That which is incurable must be void. At common law defects of this kind could not be cured by amendment, and our statute does not authorize an amendment in such case. Though by the common law, some writs were amendable, the power of amendment only existed as to slight and formal • defects. Even in this respect, some writs were not amendable by the common law courts. There were two classes of writs, the original writs issuing out of the court of chancery and returnable into the common law courts, and judicial writs, issuing out of, as well as returnable to, the common law courts. The former were not the writs of the law courts, were not issued by them, were in no manner within their control or power, and were, therefore, not amendable by them, however slight the defect. Blackamore’s case, 8 Coke Rep. 156a; 2 Eng. Rul. Cas. 767. By the Act of 8 Hen. VI. Cap. 12, the law courts were empowered to afriend in certain respects the original writ, but only (1) as to legal form; (2) as to one word “which is not any latin for another;” (3) as to omission or addition of words. (4) as to a departure by the clerk, in framing the writ, from the instructions given him therefor, or from the record, specialty,, writ, copy or note. (5) as to misprisions of the clerk in the negligent keeping or voluntary defacing of the record. Blackmnore's Case, cited; 1 Tidd’s Pr. 123,125; 1 Bac. Abr. Tit Amend. D 1. Among the judicial writs, issuing out of the law courts and returnable to them, were the ea/pias qua/re clausum fregit, by which actions were generally commenced in the common pleas, and the bill of Middlesex .and attachment of privilege in the King’s Bench. In the Exchequer a number of writs .for the commencement of actions were used. Tidd’s Pr. 104 and 105. Over all these the courts had a limited power of amendment, which extended to the date of teste and the name of the defendant,' and other mere ii’-regularities easily correctable, without prejudice. But as to material defects, such .as a wrong return day, these writs were not . amendable. Thus, in Kenworthy v. Peppiat, 4 Barn. & A. 288, a writ returnable on a dies non waá declared absolutely void and not amendable. The court said the writ was distinguishable from the case of amendment of the party’s name, where, as a writ it was good, though not applicable to the-particular case, and further, that the amendment would virtually make a new writ. This case was decided in 1821. As to mere matter of form, however, amendments could be made. Thus, in Reubel v. Preston, 5 East 291, a bill of Mid-dlesex was made returnable “on Monday next after the morrow of the Hoty Trinity, instead of on Monday next after . eight days of the Holy Trinity.” An amendment was permitted because the day and place of return were both correct, since by computation the officer would have found the return day to be the same as if described in the usual way, but the designation of that day was irregular in form. Lord Ellen-borough said, on quashing the writ, “If the regularly known forms were departed from in one instance, a thousand whimsical returns might be framed and great confusion introduced.” As our summons corresponds to the common law judicial writs, it is amendable to the same extent, without tlie aid of any statute. Sections 14 and 15 of chapter 125 of the Code provide for the correction of misnomers and variances in the writ and nothing more. Hence, it is probable that they are merely declaratory of the common law and do not authorize an amendment in such case as this.

The invalidity of such summons plight not render a judgment founded upon it void, however. There is a difference between defeating an action by proceedings taken during its progress and in the action itself, and treating it as a nullity in collateral proceedings; for there is a presumption in favor of the jurisdiction of courts of general jurisdiction founded on reasons of public policy, which gives the judgments and decrees support, and makes them invulnerable, in all collateral proceedings. Ambler, Trustee, v. Leach, 15 W. Va. 677; St. Lawrence Co. v. Holt & Mathews, 51 W. Va. 352.

It has been suggested that, by tendering the plea of non-assumpsit after the motion to quash had been overruled and making other defenses, the defendants submitted themselves to the jurisdiction of the court, waiving the defect in the writ. The authority upon which this position is taken is the case of Railway co. v. Wright, 50 W. Va. 653, in which a writ of prohibition against a judgment rendered by a circuit court on an appeal from a judgment of a justice of the peace was refused on the g'round that the defendant had submitted itself to the jurisdiction of the justice and of the circuit court, by making full defense after a motion to quash a defective return of service had been overruled. As supporting the principle announced and applied in that case, the general rules applied in Lane v. Railroad Co, 35 W. Va. 438, Barksdale v. Neal, 16 Grat. 314, Harvey v. Skipwith, 16 Grat. 410, Mahany v. Kephart, 15 W. Va. 800, are relied upon.

That Railway Co. v. Wright makes a long stride in advance of any former decision of this Court is undeniable. It deprived the defendant of the benefit of a defect in the return of service, after it had appeared specially for the purpose of denying jurisdiction of the court and excepted to the action of the court in overruling the motion to quash the return, saying that if it wished to insist upon its rights to be regularly and legally brought into court, it was bound to abstain from any further appearance in the case after the overruling of its motion to quash. Whether it is too broad in what it actually decided need not be determined here. It is likely that some of the general observations made in. the opinion went beyond the case in hand, but, if so, they are dicta and not binding upon the Court. One respect in which it differs from tins case is that it was an application for a writ of prohibition to a judgment, proper only in cases of lack or abuse of jurisdiction, while this is a writ of error to a judgment into which the error has been carried; another, which seems to have been regarded as most important, is that it had originated in a justice’s court, while this did not; and, lastly, the defect was in the service and not in the summons, while here it was .in the summons. No decision of this Court holds that there is a waiver of a defect in a summons by proceeding to trial after an adverse ruling on a motion to quash and an exception taken thereto. Sears v. Starbird, 78 Cal. 225, and Desmond v. Superior Court, 59 Cal 274, so hold, but they are not in accord with the more carefully considered cases of Lyman v. Milton, 44 Cal. 630, and Deidesheimier v. Brown, 8 Cal. 339, neither of which is noticed in the opinion in the two subsequent inconsistent cases. Desmond v. Superior Court went up from a justice’s court and Sears v. Starbird simply adopted the rule without comment. In view of this, it may be fairly said they are not well considered cases. In Michigan, Indiana, Colorado, Nebraska, Florida and Missouri, it has been held that defective service is waived by going to trial, 2 Ency. PI. & Pr. 631 and cases cited, but the authority for the decisions, in some instances, is found in peculiar statutes, and most of the cases originated in justices’ courts where practically all formalities are dispensed with.

Against this doctrine of waiver in cases of defective service stand the decisions of many states and the high authority of the Supreme Court of the United States. Harkness v. Hyde, 98 U. S. 476, holds that “Illegality in the service of process by which jurisdiction is to be obtained is not waived by the special appearance of the defendant to move that the service be set aside; nor after such motion is denied, by his answering to the merits. Such illegality is considered as waived only when he, without having insisted upon it, pleads in the first instance to the merits.” Mullen v. Railroad Co., (N. C.) 19 S. E. 106, says: “Where a motion made on special appearance to dismiss for want of service of summons is overruled, and defendant excepts, his subsequent appearance to the merits waives none of his rights.” Ames v. Windsor, 19 Pick. (Mass.) 247, says: “So, where the defendant, upon the entry of the action in the court of common pleas, moved that court to dismiss it, on the ground that the writ was not duly served, and this motion was overruled, and the defendant thereupon joined in the common demurrer, and the action was thereupon entered in this court, it was held, that the defendant had not thereby waived his exception to the legality of the service.” To the same effect are State v. Dupre, 46 La. Ann. 117, and Railroad Co. v. Heath, 87 Ky. 651. Authorities of greater dignity in this Court, however, are its own decisions in Chapman v. Maitland, 22 W. Va. 329, (syl pt. 3), Price v. Pinnell, 4 W. Va. 296, and Steele v. Harkness, 9 W. Va. 13. These cases are not overruled in Railroad Co. v. Wright. On the contrary, their soundness and authoritative character are preserved and safe-guarded by an express disclaimer of any intention to apply the admittedly new rule to proceedings in courts of record and the observation that ‘ ‘Under the equitable powers of a justice such rule should prevail in this State.”

For the proposition that proceeding to trial and judgment after a motion to quash a defective summons is a waiver of the defect, there is absolutely no authority in this State. All the decided cases declare the contrary. In Gorman v. Steed, 1 W. Va. 1, there was a full defense, trial, verdict and judgment. Yet the Court reversed the judgment, set aside the verdict, and quashed the summons.

That pleading to the merits, without previous objection to ^the process or return, is a waiver of process, defects in process, defects in return, defective service and total want of service is in no sense denied. The proposition is asserted by a vast array of authorities. See 2 Ency. Pl. & Pr. 646. It is ancient law in this State. Tuberville v. Long, 3 H. & M. 309; Winston v. Overseers, 4 Call. 357; Harvey v. Skipwith, 16 Grat. 410; Mahany v. Kephart, 15 W. Va. 619; Todd & Smith v. Gates, 20 W. Va. 604; Bank v. Bank, 3 W. Va. 386. But the principle, as sound in law as it is in reason and justice, that the appearance, to have such effect, must be voluntary, has never been departed from except in the single case of Railway Co. v. Wright, and that, as has been shown, compelled only a waiver of service, a matter of less consequence than the requisites of a valid summons. A man may " waive perfect defenses to any demand, however large, though without a shadow of merit, by a mere failure to appear and defend, (but, by any law or decision which would prevent his appearance or cut off his opportunity to make defense, he would be more effectually robbed of his money than if it were taken from him by a highwayman. It must be voluntary and free from constraint, else it is not binding. Nor can he be deprived of any other legal right except by his own voluntary act. He has a perfect right to remain out of court un_ til regularly and legally brought in, and, if an attempt is made to bring him in irregularly, he has a perfect right to object, on the ground of irregularity, in proper time, and manner. To force him to waive it, by saying, if he does not do so, he can make no defense on the merits, is a palpable t denial of a legal right. He must then determine whether he will risk his whole case on the question of insufficiency of the writ or return, as the case may be, however full and complete he might be able to make his defense on the merits, or waive the defect and submit himself to a jurisdiction not law- ^ fully obtained, in order to prevent his being forever deprived of his defense in case his objection to the writ or return should prove to be not tenable. A test of the court’s jurisdiction could never be made except at great peril, a result of^A” which would be that no attempt to do so would ever be made* in a case in which defense on'the merits could be made. In order todo so, it would 'be necessary to suffer a, judgment by default, then go back to the same cou*rt with a motion to set it aside for insufficiency of process, vainly ask the court to reverse itself, suffer the same adverse ruling, and then, if possible, obtain a writ of error from this Court and reverse the judgment for the defect in process alone, and, on failure of that, to be forever barred of any defense on the merits. For the court to present to a party the alternative of waiving a jurisdictional defect or giving up his defense, and compel him to choose, is not to allow a voluntary submission to its jurisdiction, but to coerce such submission or a relinquishment of the defense on the merits, however ample and just it may be, and give to the plaintiff what he is clearlj'- not entitled to— the appearance of the defendant without process or relinquishment of defense in that action. How can the action of a court, in arbitrarily taking- from one man a right, trivial and unimportant though itbe? and conferring it upon another, be justified, either legally or morally? Is the right to stay out of court until legally brought in worth nothing? Is process a mere idle formality? If so, why allow a default judgment to be set aside for want of it? That this will be done all admit, and, in admitting, confess that the acquisition of jurisdiction by process is a matter of substance and not of form. To say in the same breath that a man may not test it without surrendering his defense to the mérits is squarely and flatly inconsistent, contradictory of the admitted nature of the right, and violative of law in that it forcibly deprives the citizen of a‘ substantial legal right. To say that the office of process is to bring the defendant into court and that, after his appearance, it is wholly unimportant and may be disregarded, falls far short of justifying the ruling. His appearance is involuntary. He must come or risk everything on the question of insufficiency of the process. If he does not, a judgment by default goes against him, forever precluding any defense, be it a release, payment, fraud or what not, unless he can have it set aside for the defect in' the process or some other error. It puts him under compulsion from the /moment of service. The court has laid its powerful hand upon him and will render judgment against him without a hearing if he does not bring to its attention the defect in its process and ask to be discharged. For the court to say, upon such compulsory appearance and protest against jurisdiction, now that you are here, you must stay, no matter how you were dragged in, is but bitter mockery, utterly inconsistent with the principles of the law, eulogized in these clays of enlightenment for their justice and fairness even in those periods in which society was comparatively crude and barbarous.

• The large power of a justice to set aside judgments by default and allow full defense afterward, under section 70 of chapter 50 of the Code, may justify the rule adopted in Railway Co. v. Wright, and similar power is no doubt vested in courts of record in those states in which the Code system has been adopted, such as Colorado, California, Nebraska and others. But the common law courts in this State have no authority to set aside a judgment unless there be error in the record or fraud on the part of the defendant. As to whether there is a defense to be made they make no inquiry upon a motion to set aside for error.

To test the sufficiency of the summons, the appearance must be special, of course, but it is not necessary in a court of record to make the order, plea or motion expressly state that the appearance is only for the purpose of excepting to the jurisdiction. Layne v. Railroad Co., 35 W. Va. 438, at point 2 of the syllabus, says the defendant must so state in submitting his motion, but that case originated in a justice’s court in which there need be no formal pleadings or records. Here there was a motion to quash, without any suggestion of an appearance for any other jrarpose, and to the overruling of the motion, an exception was taken, and then the plea was tendered. In Layne v. Railroad Co. the defendant submitted a motion to quash and a motion to continue at the same time. This was correctly held to be a general appearance in ^ the absence of any statement of a special appearance for the purpose of moving to quash. Groves v. County Court, 42 W. Va. 587, seems to impliedly hold that if the record show that a defendant came into court without saying he came for a special purpose', his appearance is presumed and taken to have been a general appearance, but the record showed that the case, commenced by notice, had been docketed and the cause removed to another court, on motion, after appearance, and before anjr exception to the notice was taken. Hence the record showed more than mere presence in court. Here the record as a whole neg- [ atives any intent to voluntarily submit to the jurisdiction. An immediate and direct attack was made upon the writ, and an exception to the action of the court in refusing to quash it put upon the record. However it may be when the objection is insufficiency of service, and defectiveness of the summons in a justice’s court, the uniform holding by this Court has been that where the writ commencing an action in a court of record is excepted to before any plea has been tendered or continuance had, or other step taken, importing a general ap- V' pearance, the defendant is deemed not to have waived or lost ] the benefit of his motion, if an exception was taken and saved, ) although he afterward plead to the merits and went to trial. His intent is shown by the state of the record at the time the plea was tendered and, for obvious reasons, not by what subsequently took place. Gorman v. Steed, 1 W. Va. 1; Chapman v. Maitland, 22 W. Va. 329; Price v. Pinnell, 4 W. Va. 296; Steele v. Harkness, 9 W. Va. 13.

For the foregoing reasons, the judgment must be reversed, the summons quashed and the action dismissed with costs both in this Court and the court below.

Reversed.