Bank of the Valley v. Bank of Berkeley , 3 W. Va. 386 ( 1869 )

Maxwell, J.

This was an action of assumpsit brought by the Bank of Berkeley against the Bank of the Valley, in Virginia, in the circuit court of Berkeley county. An order of publication was had in the case on the 6th day of November, 1865, and there was also an attachment against the estate of the defendant. So far as appears from the record, process was served only by posting a copy of the order of publication at the court-house door of Berkeley county. The declaration was filed at rules and office judgment entered. On the 7th day of April, 1866, as appears from the record, the cause was, upon the motion of the defendant and at its costs, continued until next term of the said court.

On the 28th day of May, 1867, as appears from the record, the following entry was made in the said cause: “On motion of the defendant, by his attorney, and at his costs, this cause is continued until the next term of this court.”

And on the 1st day of" June, 1867, the following order was entered: “ This day came the parties by their attorneys and the defendant moved the court to dismiss the summons or send the cause back to rules, upon the ground that pro- • cess had not been duly executed upon the said defendant, and that the summons has not been properly sued out in this county, which motion the court overruled. Thereupon the defendant excepted, and his bill of exceptions was duly signed and enrolled.”

The order further recites that the defendant was then required to plead, and the defendant filed the plea of non-as-sumpsit. A trial was had and judgment rendered for the plaintiff, from wbicli the defendant has obtained a superse-deas to this court.

It is now claimed here that the court erred in refusing to dismiss the summons or send the cause back to rules, upon the ground that process had not been duly executed. The order of publication was not, as disclosed by the record, published in any newspaper, as required by law. Process 'in the cause was therefore not executed upon the defendant below. If the defendant had made a motion on its first appearance to remand the cause to rules, because process was not executed properly the court ought to have made such an order, and it would have been gross error if it had not done so. It will not do to suppose that if the defendant had on its first appearance made such motion, it would by its appearance to make the motion have waived-the proper execution of process. Hickman vs. Early, 6 Grat., 210.

But the question arises upon the record in this case, did not the defendant waive the proper execution of process against it by appearing generally and moving the two continuances of the cause which the record shows? The second continuance is more than a year subsequent to the first and no orders seem to have been made in the cause in the intervening terms of the court.

The object of the seiwice of process is to bring the party into court. A judgment by default, with process badly executed, would not be legal. By appearance to the action in any case for any other purpose than to take advantage of the defective execution or the non execution of process, a defendant places himself precisely in the situation in which he would be if process were executed upon him, and he thereby waives all objection to the defective execution or the non execution of process upon him. I think, therefore, the defendant in this case, by its motions to continue, waived all errors existing in the execution of process. Williams & Keys vs. Campbell, 1 Wash., 153; Buckingham et al. vs. McLean, &c., 13 Howard, 150; Ferran & Brown vs. The United States, 3 Peters, 459; Gracie vs. Palmer, 8 Wheat., 699; Pollard vs. Dwight, 4 Cranch, 428.

The next question attempted to be raised, that the defendant below was not a non resident, could only be raised by plea in abatement.

■Another cause of error assigned is that the court refused to set aside the verdict of the jury and grant a new trial because the verdict was against evidence.

The bill of exceptions certifies the evidence given, and not the facts proved. Nor does it appear that the evidence' certified was all the evidence before the jury on which they found their verdict, and for anything that appears they may have had other evidence. It does not appear, therefore, affirmatively, that the verdict is contrary to the evidence, nor that the court committed any error in refusing to grant a new trial.

The attachment sued out in the cause appears to be yet pending in the court below, and whether it will be proper to dismiss it or to take an order for the application of the effects attached to the payment of the judgment will depend on the evidence disclosed on the pending motion to dismiss the'attachment.

The judgment complained of must be affirmed, with damages and costs to the defendant in error.

The president concurred.

Judgment aeeirmed.