Hickam v. Larkey

Supreme Court of Virginia

Hickam v. Larkey

6 Va. 210

DecidedJuly 15, 1849

StatusPublished

This text of 6 Va. 210 (Hickam v. Larkey) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hickam v. Larkey, 6 Va. 210 (Va. 1849).

Pincite

Opinion

Daniel, J.

delivered the opinion of the Court.

The Court is of opinion, that the Circuit court erred in deciding that the plaintiff in error had no right, when the cause was called for trial, to make a motion through [212]*212his counsel to quash the process for irregularity, unless he appeared, and gave bail, if ruled so to do by the Court. Wynn v. Wyatt's adm'x, 11 Leigh 584. The Court is also further of opinion, that the Circuit court erred in deciding that the process in the cause, and the manner of its execution, was not necessarily a part of the record, and that the Court could not on the motion of defendant’s counsel, look at it or know any thing about it until the defendant appeared; and in refusing therefore to decide upon the sufficiency and regularity of the process. The plaintiff in error having entered no appearance either at the rules or in term, had a right on the calling of the cause, to object that it was not legally matured for trial; and in considering the objection, all the process, returns and proceedings were necessarily parts of the record. On an inspection of the process, it appears that the paper, which the Circuit court in its order of the 14th April 1846, treated as a pluries capias, though in other respects formal, is without date and without signature, and does not “bear teste in the name of the clerk.” The said paper was therefore wholly null and void as process, and the said order of the 14th April 1846, directing a proclamation to issue, and all the subsequent proceedings, were without warrant and illegal. 1 Rev. Code, ch. 128, § 64. The judgment of the Circuit court is therefore reversed, with costs. And this Court proceeding to render such judgment as the Circuit court ought to have rendered, doth quash the said pretended process and return; and doth adjudge that all proceedings subsequent to the. suing out and return of the alias capias be set aside. And the cause is remanded for further proceeding.

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Daniel, J.

delivered the opinion of the Court.

The Court is of opinion, that the Circuit court erred in deciding that the plaintiff in error had no right, when the cause was called for trial, to make a motion through [212]*212his counsel to quash the process for irregularity, unless he appeared, and gave bail, if ruled so to do by the Court. Wynn v. Wyatt's adm'x, 11 Leigh 584. The Court is also further of opinion, that the Circuit court erred in deciding that the process in the cause, and the manner of its execution, was not necessarily a part of the record, and that the Court could not on the motion of defendant’s counsel, look at it or know any thing about it until the defendant appeared; and in refusing therefore to decide upon the sufficiency and regularity of the process. The plaintiff in error having entered no appearance either at the rules or in term, had a right on the calling of the cause, to object that it was not legally matured for trial; and in considering the objection, all the process, returns and proceedings were necessarily parts of the record. On an inspection of the process, it appears that the paper, which the Circuit court in its order of the 14th April 1846, treated as a pluries capias, though in other respects formal, is without date and without signature, and does not “bear teste in the name of the clerk.” The said paper was therefore wholly null and void as process, and the said order of the 14th April 1846, directing a proclamation to issue, and all the subsequent proceedings, were without warrant and illegal. 1 Rev. Code, ch. 128, § 64. The judgment of the Circuit court is therefore reversed, with costs. And this Court proceeding to render such judgment as the Circuit court ought to have rendered, doth quash the said pretended process and return; and doth adjudge that all proceedings subsequent to the. suing out and return of the alias capias be set aside. And the cause is remanded for further proceeding.

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Bluebook (online)

6 Va. 210, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hickam-v-larkey-va-1849.