This is an application of the Chesapeake & Ohio Railroad Company for a writ of prohibition against J. M. McWhorter, Judge of the circuit court of Greenbrier County, to inhibit the enforcement of a judgment rendered- by said court in favor of A. T. Wright on the 20th day of November, 1901, for the sum of fifty dollars, interest and costs.
The proceedings in the case are as follows: On the 2d day of September, 1901, summons was issued in favor of said Wright against petitioner by P. H. McGrath, justice of the peace, returnable the 9th day of September, 1901. On the return day the petitioner appeared specially for the purpose and moved to quash the return of service as fatally defective. The justice overruled the motion and the case was continued until September 16, 1901. On the last mentioned day the parties appeared,
The latter rule is founded on justice and reason. For although the defendant may not be served with process, yet if he appears and contests the case and a fair trial is had, why should he be permitted to invalidate the judgment thus obtained, because the process to bring him into court was not legally served upon him? He has had his day in court, made his defense and justice has been meted out to him. If he does not appear at all, or if he appears specially for the purpose alone of calling attention to the defective character of the service and then steps aside and permits judgment' to go by default, the judgment is void and he may have the same vacated. But when he submits himself to the jurisdiction of the court, oilers his evidence and has a fair hearing, he should be forever estopped from denying notice of the action. But, however this question may be determined.as to common law courts under the summary and liberal proceedings before justices as provided in the statute a defendant who appears specially for- the purpose of objecting to the service of summons must then elect to either rely on such objection alone or waive it by going into trial on the merits. It is specially provided in the statute that trial may be had by appearance and consent without summons. When therefore a defendant appears and goes to trial on the merits all defects in and objections to the process should therebjr be deemed to be abandoned and waived. By making a general the defendant abandons his prior specific appearance. In spine states the just rule is established that there can be no special appearance for if the defendant has notice sufficient to appear and raise technical objections he has notice sufficient for all purposes. 2 En. Plead. & Prac., 622. Under the equitable powers of a justice such rule should prevail in this State, the invalidity of the return under the statute only applying to judgments by default. In addition to appearance and trial on the merits, the defendant appealed to the circuit court. ' It has been held that an appeal by a defendant is an appearance to the action and cures all defects in the service of summons. 2 En. Plead. & Prac., 614; Thorn et al. v. Thorn, 47 W. Va. 4 (34 S. E. 934). This is undoubtedly a reasonable rule. The purpose of the service of summons is to bring the defendant into court. If he comes voluntarily and presents his defense he obviates the necessity, for summons. It
The prohibition is refused.
Prohibition Refused.