22 W. Va. 329 | W. Va. | 1883
In the view wre have taken of the proceedings in this cause it is unnecessary to notice all the errors assigned, or to decide all the questions raised thereby.
Bat upon the hypothesis that the court had jurisdiction to hear'and determine the cause, if is difficult to conceive, how one of so much importance, could have been prosecuted by the plaintiffs to a final decree without discovering the numerous errors apparent on the face of these proceedings.
The bill is prepared to accomplish one or two purposes; either to obtain a rescission of the contract dated November 25, 1854, and as consequent thereto a reconveyance of said fifty thousand acres of land, or, to enforce the collection of said thirty-six thousand dollars of purchase-money, as a vendor’s lien on, and by a sale of, said five hundred thousand acres. The prayer of the bill is also in the alternative, first for such rescission and reconveyance; and secondly, if the plaintiffs be not entitled to that relief, then, that the five hundred thousand acres be sold and the proceeds thereof, so far as necessary, be applied to the satisfaction of said purchase-money. Considered in the character of a bill seeking only a rescission of said agreement and a reconveyance of
Regarding the bill in its alternative aspect, as one brought to enforce the specific execution of said agreement, by selling the five hundred thousand acres of land to enforce the vendors’ lien thereon for the payment of said thirty-six thousand dollars it is equally defective; for while the bill alleges that it was intended that said purchase-money should constitute a lien upon the land actually sold, and also upon all the interest then owned by Maitland or which he might thereafter acquire in said five hundred thousand acres, — yet it appears by the allegations of the bill, that said vendors had conveyed to Maitland the legal title to all of their interests in said five hundred thousand acres on July 18, 1855, by deed duly executed, acknowledged and recorded, in which no lien for any part of said purchase-money was retained, and therefore the claim is reduced to a simple demand for the payment of an alleged debt, for the recovery of Which the plaintiffs had a plain, complete and adequate remedy at law. As a bill therefore, for such alternative relief it was demur-rable, unless it could be'maintained upon other good grounds of equitable jurisdiction, which we will hereafter consider.
But waiving for the present all defects in the bill, upon what principle -did the special commissioner ignore the de-fence set up by Maitland in his answers and all the evidence contained in the depositions which was unimpeached and uncontradicted, and wholly disregard the abatements to which said defendants’ testimony showed he was entitled ? It is true the commissioner reported- only sixteen thousand dollars of principal money due, upon the strength of a paper filed in the cause which was neither mentioned nor relied on by the plaintiffs nor defendants, in the pleadings and upon which no issue was made or joined. Upon what principle of
But the main question, and the one lying at the foundation of these proceedings is whether the court had jurisdiction to render any decree whatever in this cause ?
We have already shown, that said bill as a bill for the rescission of said agreement, and consequent reconveyance ot said land, or for the enforcement of said alleged vendors’lien on the same, could not be sustained. Is there disclosed in this record any other equitable ground on which the same may be maintained ? This ground must not only appear to exist in this cause, but it must further appear, that the circuit court had jurisdiction of the person of the defendant Mait-land, or over the subject-matter of the suit, or over both. Without jurisdiction over his person, a personal judgment or decree against him, would be a nullity; without such jurisdiction, or a seizure of the subject-matter of the suit, such decree or judgment against the thing will be a nullity, and with such jurisdiction of the person of said defendant, there may be either a decree in personam or in rem, or both at the election of the plaintiff. The said court being one of general jurisdiction had power to take jurisdiction of this cause and of the subject-matter thereof, but although it was clothed with legal capacity to take jurisdiction of the subject-matter, yet to give it actual jurisdiction in this particular case, either over the person of Maitland or -the land, the bill must be good on general demurrer. Borer on Judicial Sales, sections 66, 67; 1 J. J. Marshall 166; 6 J. J. Marshall 197. To authorize a personal judgment or decree he must
By the third clause of section 1 of chapter 123 of the Code it is provided that an action at law or suit in equity, “if it be to recover land or subject it to a debt, Or be against a debtor who resides without, but has estate or debts due him within this State, may he brought in any county wherein such land, estate or debts, or any paid may be/’ And by the second section of said chapter, “in any county wherein the cause of action, or any part thereof arose, although none of the defendants reside therein.” By the first clause of said section 1 of said chapter, such action or suit may be “brought in any county wherein any of the defendants reside.”
By section 8 of chapter 125 of the Code it is provided, “that when a summons to answer an action or hill is against a defendant whom the officer (receiving it) knows not to reside in his county, or to reside out of the State, he shall, unless he find him in his county on or before the return day,
Now in the case under consideration it does not appear from anything in the record, until after the appearance of Maitland, whether this suit was brought against him in Mercer countjg because he resided therein, or because the cause of action or some part thereof arose there. The statute is explicit, in both these cases, that if the court had jurisdiction only, because the defendant resided in Mercer county, or only because the cause of action arose there, and the process was returned showing that in the first case the defendant was a non-resident, and in the latter that he was a nonresident of the State, the suit or action shall abate, and this result in the latter case can only be avoided by showing that the court had jurisdiction of the case upon some other ground, and it is clearly the duty of the party invoking the aid of the court, to make this fact appear. If it do not so appear, it seems to us that it is the reasonable presumption of law, that such other ground of jurisdiction does not exist, and that in such case, it must be presumed that every action or suit brought against an individual would fall under one of these two provisions, and that upon the return of the officer that such defendant is a non resident the suit will abate. But although it may hqve been intended to prosecute this suit under said third clause of section 1 of chapter 123 of the Code, it does not appear that Maitland ever resided in Mercer county, or that the cause of action arose there, or that any attachment was ever issued in said cause and levied upon said lands, so as to bring them under the control of the court, whereby, with the proper subsequent proceedings the court could have properly sold the same. The order of publication which was taken in the cause but never published in any newspaper, can have no effect whatever. If it had been properly executed it could
There remains only to be considered whether the errors committed in this case are cured or waived by Mait-land in subsequently appearing to the cause and making full defence thereto, or whether he still had the right to have the cause dismissed for the want of jurisdiction over his person and the subject-matter of the suit.
This question has been considered and decided in several cases in Virginia and in this State, and in every case it has been held that where the defendant has not been properly served with process and has not entered a general appearance in the cause, but has appeared for the purpose of taking advantage of the defective service, or the want of service of process he does not waive his right to do so, if after he has been denied the benefit of this right by the judgment of the court, ho makes a full defence to the action or suit. In the case of Hickam v. Larkey, 6 Gratt 210, the defendant in an action at law who had not entered his appearance either at rules or in term, has a right upon the calling of the cause to object that it has not been legally matured for trial. In that ease the cause was matured for trial against the defendant by proclamation founded upon a pluries capias, which was blank as to its date, and was not signed by the clerk, — which was returned “not found.” The pluries capias being void, when the cause was called for trial the defendant moved the court for leave to appear and quash the pluries capias and the return thereon, and all the subsequent proceedings thereon without entering an appearance to the action, which motion was overruled, and the cause was tried and judgment given against him. IJpon a writ of error the court of appeals of Virginia for this error reversed the judgment of the circuit
We are therefore of opinion that the plaintiffs’ suit abated as early as the July rules, 1871, and that therefore all the subsequent proceedings thereiu had by the circuit courts of Mercer and Summers' county are erroneous, and that all of the decrees rendered therein must be reversed, with costs to the said Maitland. It is therefore adjudged, ordered and decreed that all of the decrees rendered in said cause be reversed and annulled, and this Court proceeding to render
Decrees Reversed. Bill Dismissed.