Rousey v. Stilwagon

74 S.E. 732, 70 W. Va. 570, 1912 W. Va. LEXIS 60

• Court: West Virginia Supreme Court
• Decided: April 2, 1912
• Status: Published

Opinion

Williams, Judge:

This writ of error was awarded, on the petition of Ellen Rousey, to a judgment of the circuit court of Cabell county, rendered on the 13th of April, 1910, -quashing an execution issued by the clerk of said court, upon a default judgment rendered by a justice of the peace of said county in her favor against E. L. Stilwagon, a transcript of which had been filed in said clerk’s office; pursuant to sec. 118,' ch. 50, Code 1906'.

The record presents the question of the sufficiency of the justice’s summons as a notice to defendant of the place at which he was summoned to appear. If the notice was defective, the justice did not lawfully acquire jurisdiction over defendant and had no authority to render a default judgment. Moore v. Holt, 55 W. Va. 507.

On the motion to quash the execution, due notice of which had been given, the court could inquire into the justice’s jurisdiction, and if there was lack of jurisdiction, it would render the judgment void, and the court could quash the execution issued thereon by the clerk, for an execution on a void judgment is a nullity. 17 Cyc. 1153; Baeur v. Baeur, 40 Mo. 61; Holzhour v. Meer, 59 Mo. 434; Rowe v. Peckham, 30 N. Y. App. Div. 173; 1 Freeman on Executions (3rd ed.), sec. 73a; Blair v. Henderson, 49 W. Va. 282; and Schultze v. State, 43 Md. 295.

The justice’s summons fails to lay the venue in any county. It cited the defendant to appear 'before the justice at his office "in the District of Grant, in said County.” But the name of the county nowhere appears on the writ, and the words, "said county,” are, therefore, unintelligible. The name of the magisterial district alone, is not a sufficient designation of the place to which defendant was summoned. There may be many magisterial districts by the name of Grant in the state of West Virginia; and the failure to name the county in which the particular magisterial district named is situate, makes uncertain the place intended, and renders the summons void.

A question, analogous to the one under consideration, was decided by the supreme court of Illinois in Gill v. Hoblit, 23 Ill. 473, in which it was held that a summons, issued from Logan county directing a sheriff of Cook county to summon a defendant in his county to appear at Lincoln “in said county,” was void. The following authorities relaté to similar questions, and support our conclusion: 32 Cyc. 431; 20 A. & E. E. L. (1st ed.), 510; Orendorff v. Stanberry, 20 Ill. 89; Womsley v. Cummins, 1 Ark. 125. In Murdy v. McCutcheon, 95 Pa. 435, a summons, issued by a justice of the peace, was held fatally defective because it did not name the township in which the justice’s office was.

Moreover, the summons in this case is not a substantial compliance with see. 26 of the justice’s code, which prescribes the form thereof. In the form a blank space is left for the name of the eountjq and, by necessary implication, the blank must be properly filled in order to complete the summons, and constitute it a substantial compliance with the mandate of the statute.

The judgment will be affirmed. d &

. „ , Affirmed.