Hall v. Ocean Accident & Guarantee Corp. ( 1940 )

The first summons issued out of the clerk's office was plainly void on its face because the return day preceded in point of time the date upon which it was issued. This process was served only upon the corporate defendant, and an alias was issued returnable to April Rules. The alias was served upon the individual defendant, who was a resident of Harrison County.

It will be seen that venue justifying the bringing of the action in the Circuit Court of Nicholas County against a non-resident individual co-defendant was dependent upon the corporate defendant being made an actual party litigant.Gunnoe v. W. Va. Poultry Co-Op. Assn., 115 W. Va. 87,174 S.E. 691, 93 A.L.R. 944.

Reading the original process and the alias together on the sound principle that a stream cannot rise higher than its source (see Oil Gas Well Supply Co. v. Gartlan Ahner, 58 W. Va. 267, bottom page 274, 52 S.E. 524), it at once becomes apparent that there was no valid process issued for either defendant. Nevertheless, both appeared, oyer was craved of both the original and alias summonses and each defendant moved to quash the summons served upon it. The motion having been predicated upon an error plainly apparent upon the face of the record when the motion was made, it should have been sustained. It having been overruled, the corporate defendant saved its exception to the court's ruling and entered its general appearance which did not, the appearance not being voluntary and having been required by the holding of the nisi prius judge, constitute a waiver of invalid process. Fisher, Sons Co. v. Crowley, 57 W. Va. 312, bottom page 320, et seq., 50 S.E. 422, 4 Ann. Cas. 282; Hayhurst v. Transfer Co., 110 W. Va. 395,398, 158 S.E. 506.

The process being a part of the record and its nullity appearing, no presumptions may be indulged in. It is simply void and in no way curable. Fisher v. Crowley, 57 W. Va. 312,316, top, 50 S.E. 422. A judgment based thereon may be collaterally or directly attacked. Hayhurst v. Transfer Co.,110 W. Va. 395, 158 S.E. 506. Code, 56-4-30, provides that defective process shall be reached only by a plea in abatement, but it also preserves to a defendant his common law right to raise the question of the writ being void by a motion to quash. The distinction recognized by this statutory rule and the fact that in spite of it a "defect" apparent on the face of the record or made so by craving oyer may be taken advantage of by a motion to quash is clearly dealt with in Anderson v. Lewis, 64 W. Va. 297, 61 S.E. 160.

Granting, for the sake of argument only, that the individual defendant is a resident of Nicholas County, I cannot perceive how that would validate the original or the alias process, nor can I agree that the statement made in the case ofGorman v. Steed, 1 W. Va. 1, to the effect that an alias summons is but a continuance of the original would result in a mere mistake in the original being incurable. It is another thing to say that a void original is not cured by the issuance of an alias. I do not think that the majority opinion sufficiently draws the distinction between defective process and process that is totally void. Mere defects in either the process or its service are waived by a voluntary general appearance without saving the point. But dead process cannot be resurrected and the mere use of the term "void process" is confusing. I do not agree that the Gorman "saying" was not meant to be taken literally, and it strikes me that the reason no cases were cited to sustain it was that it was not thought necessary, and further, that when the Gorman opinion was handed down there were no West Virginia judicial precedents of any kind to be followed. This Court was evidently following a recognized Virginia rule in the first opinion it handed down, a rule that has since been spoken of in the same manner by the Virginia court, Reynolds v. Williams, 147 Va. 196,136 S.E. 597, and by this Court, the third syllabus point in Oil GasSupply Co. v. Gartlan Ahner, 58 W. Va. 267,52 S.E. 524, being: "An alias or pluries writ or summons, regularly issued, is the continuation of an original valid process, and not the inception of a new suit or action. (p. 273)."

Without referring to either the Gorman case or the Oil GasSupply Company case, this Court, in Dunaway v. Lord, 114 W. Va. 671,173 S.E. 568, in the one syllabus point said: "Process issued after discontinuance of an action for invalid service of the original writ cannot serve as an alias, but may be considered as an original commencing a new suit." The Dunaway case appears to sustain the view expressed in the majority opinion. There, the only alias summons was issued June the twenty-eighth when the original was returnable to May Rules, creating an hiatus. The alias process was held to commence a new action, abolishing the effect of an hiatus. TheDunaway opinion follows an Illinois case, a Michigan case and the Virginia case of Danville Western Railroad Co. v. Brown,90 Va. 340, 18 S.E. 278. I have not examined the Illinois case nor the Michigan case, but a cursory reading of the Virginia case shows plainly that in the instance being considered the alias process followed a valid original summons, the service of which in fact and as shown by the return, was an absolute nullity. Further, an examination of that case shows no departure from the rule laid down in the Gorman case, which was distinctly approved by this Court in the Oil Gas SupplyCompany case, which also went further and cited with approval the case of Slatton v. Jonson, 4 Hayw. (Tenn.) 197, as holding that alias, as well as pluries, process bears the same date as the original. I think that this Court has laid down two conflicting doctrines, in the statement of neither of which has the existence of the other been noted.

Based upon the foregoing, I would reverse the judgment of the Circuit Court of Nicholas County and enter judgment here for the defendant.

I, of course, am conscious that this Court could follow principles that I think are plainly logical and should be definitely established only by directly or impliedly overruling the case of Ambler, Trustee, v. Leach et al., 15 W. Va. 677, and a number of other West Virginia holdings based upon the same reasoning. I do believe, however, that, predicated upon the holding in the Ambler case, process not dated and unsigned is to be regarded as voidable and not void. This Court, in undertaking to get away from the extremely technical and obsolete common law rules of procedure, has perhaps encouraged a superabundance of careless informality by saying, in effect, that an implied waiver may breathe life into an absolute nullity. I think also that there should be a plain distinction between defective process and process which is void, and, as a matter of fact, the latter should not be referred to as process in any sense. There can be an equal amount of injustice brought about by the inevitable abuses growing up under a lax system, and by adhering too closely to technicalities, the reasons for which have ceased to exist.