Swartzwelder v. Freeport Coal Co.

46 S.E.2d 813, 131 W. Va. 276, 1948 W. Va. LEXIS 14

• Court: West Virginia Supreme Court
• Decided: March 16, 1948
• Docket: 9998
• Status: Published

Opinions

Riley, President:

Lulu A. Swartzwelder and others brought this suit in the Circuit Court of Preston County to enforce a vendor’s lien. The defendant, Freeport Coal Company, a corporation, through its president, challenged service of process by a plea in abatement. A demurrer to the plea having been sustained, and defendant not desiring to defend fur ther, the Circuit Court of Preston County entered a decree, which, in addition to incorporating the ruling on the plea, ordered sale of the property, subject to the vendor’s lien. From this decree, defendant appeals.

The suit was brought to May rules, 1947, at which the questioned return was made and a bill of complaint filed. At the succeeding rules defendant filed its plea in abatement, duly verified by its president, asserting that the sheriff did not execute the process by delivering a copy thereof to R. Hugh Jarvis, the alleged president of defendant corporation, and that the sheriff’s return, stating he had done so, is false. Plaintiff in his demurrer to the plea in abatement, which is based on the theory that the sheriff’s return is a verity and cannot be attacked by a plea in abatement, challenges the sufficiency of the plea on the following grounds: (1) It does not show that defendant has a good defense to the suit; (2) it does not affirmatively allege that defendant had no knowledge of the suit or opportunity to defend it; (3) it does not give plaintiff a better writ; and (4) the plea is not properly verified.

In support of the first two grounds, plaintiffs evidently rely upon Nuttallburg Smokeless Fuel Co. v. First National Bank of Harrisville, 89 W. Va. 438, 109 S. E. 766; Lanham v. Home Auto Co., 115 W. Va. 415, 176 S. E. 604, and like cases, in which the first attack on the service of process and return was made after the rendition of a judgment by a court having jurisdiction of the subject matter of the litigation.

Of course, in the instant suit the defendant necessarily had knowledge of its pendency; otherwise it could not have filed the plea in abatement at rules before a decree nisi was entered therein. The instant plea in abatement was filed under Code, 56-4-30, which provides, in part, that in cases other than those involving misnomer “a defendant on whom process summoning him to answer in any suit or action appears to have been served shall not take advantage of any defect in the writ or return, or any variance in the writ from the declaration, unless such defect or such variance be pleaded in abatement.” In Ruffner v. Cunard Steamship Co., 94 W. Va. 211, 118 S. E. 157, where the return of the officer stated, among other things, that defendant, a foreign corporation was doing business in Kanawha County, the defendant appeared specially and moved for leave to amend the return by striking out such statement, and, after having the return amended, moved to quash it as amended. Upon writ of error this Court held that the return being regular, on its face, the question of its sufficiency could not be raised upon a motion to permit or require the officer to amend his return, though supported by affidavit or other evidence, and, in point 3, syllabus, this Court held: “Under Section 15, Chapter 125, Code [56-4-30] such questions of fact can be decided in the case only on issues raised by plea in abatement filed in due time.” In Talbott v. Southern Oil Co., 60 W. Va. 423, point 1, syllabus, 55 S. E. 1009, this Court, in affirming the circuit court’s action in overruling a motion to 'set aside a default judgment by way of dictum said that except upon allegations of fraud or collusion, a return of service of a summons commencing a suit sufficient on its face “cannot be put in issue by either a plea in abatement or a motion to set aside a judgment by default.” The statement as to the plea in abatement is pure dictum, because that case involved a motion to vacate a judgment. However, counsel for plaintiff relies strongly upon Rader v. Adamson, 37 W. Va. 582, 16 S. E. 808, in support of its position that “An official return duly made upon process emanating from the court or its officer, by a sworn officer, in relation to facts which it is his legal duty to state in it”, cannot be successfully attacked by plea in abatement. In point 3[ syllabus, in Rader v. Adamson, supra, this Court, applying the verity rule in its broadest application held that such a return is “conclusive of the facts therein stated.” But that case was actually decided, as counsel for defendant asserts in his brief, on the basis that it was not error to strike out the plea on the ground that it was not sworn to by defendant in person, but by his attorney. This is in accord with the holding of this Court in Quarrier, Trustee v. Peabody Insurance Co., 10 W. Va. 507, point 1, syllabus: “The appearance by a corporation in a plea to the jurisdiction of the court, should not be in person or by attorney, but may be by its president.” So this was the actual ground for reversal in the Rader case. Moreover, in support of the statement that the return was conclusive of the facts stated in it, the Court in the Rader case relied upon Bowyer v. Knapp & Martin, 15 W. Va. 277, which involved an attack on a sheriff’s return upon a notice to take depositions. In the case of Williamson v. Taylor, 96 W. Va. 246, 122 S. E. 530, this Court reversed the judgment of the Circuit Court of Cabell County on its factual finding under a plea in abatement, timely filed, which raised the issue whether defendant’s usual place of abode, as stated in the sheriff’s return, was in Cabell County, and thereby this Court impliedly held that a plea in abatement was proper to raise such issue. In the later case of Crouch v. Crouch, 124 W. Va. 331, 20 S. E. 2d 169, it was held that a plea in abatement directed to a return that service was had upon a defendant by posting a copy of the process at his usual place of abode was insufficient because the plea did not state defendant’s actual usual place of abode and thus did not give plaintiff a better writ. Under these two cases we think this Court, and properly so, has receded from the ancient verity rule, and that the attack on the officer’s return may be made by plea in abatement, timely filed at rules. To that extent we disapprove the broad language of the Court in pt. 3, syl., of the Rader case.

Again we say that this case involves no intervening judgment as in the Nuttallburg case, and the attack on the return, having been timely made by plea in abatement, it is our opinion that under the Williamson and Crouch cases, where resort is had to a plea in abatement, it is unnecessary for defendant to show by such plea that he has a just defense to the suit or action, or that he was without notice of the pendency thereof.

The third ground of attack on the plea that it does not give plaintiff a better writ, and the fourth ground that the plea is not properly verified, are, in our opinion, with out substantial merit. We say this because the verification signed by R. Hugh Jarvis, the purported president of defendant, Freeport Coal Company, states that he is the president of such company, and if he is such, as his own affidavit asserts, the plea could not furnish plaintiff with a better writ.

For these reasons the action of the trial court in sustaining the demurrer to defendant’s plea in abatement, and entering the decretal judgment against defendant, and decreeing that the property covered by the vendor’s lien should be sold is erroneous, and should be reversed and set aside and the cause remanded for a decision of the issue of fact raised by the plea in abatement.

Reversed and remanded.