38 W. Va. 633 | W. Va. | 1893
Anderson having recovered a judgment by default in an action of debt against E. S. Doolittle, F. L. Doolittle and E. Kyle, the judgment debtors moved the judge of the Circuit Court of Cabell county to reverse it for certain alleged errors; and, the judge having refused to do so, they bring this writ of error.
The first point of assigned error is, that the service of the writ upon Kyle in the action, in which the judgment was rendered, was irregular, in that the return of service shows that it was served on Kyle by his deputy — Kyle being sheriff — as the doputy can not serve on his principal; section 1, c. 41, Code, providing that the County Court shall designate some one to serve process, where the sheriff is a party.
It is unnecessary to pass upon that question, as on the motion to reverse the judgment Kyle appeared and said he desired to take no advantage of the service of process on him, if defective. This is a waiver or release of error by Kyle and a withdrawal as to him of the motion to reverse, he being the only party prejudiced by the defect. It is acceptance of service of the summons, and relates back to the original service. Moreover, Stewart, the deputy, made an affidavit that he served the summons as an individual, which was filed as an amendment to his return by leave of court on the motion to reverse, which was proper. In Capehart v. Cunningham, 12 W. Va. 750, it was held that even upon the hearing of a motion to reverse the judgment for defective service of process, like this motion, the sheriff' will be permitted to amend his return, and the amended return relates back to, and takes the place of, the original return. So there is no ground of reversal for that cause.
The other errors assigned are that there was a variance