This is аn appeal from two decrees of the circuit court of Barbour county made on the 28th of September, 1906, and on the 22nd of April, 1908, respectively; the first is the order overruling the demurrer to plaintiff’s petition, and the sеcond is the final decree granting relief to plaintiffs.
In 1895 J. N. B. Crim brought a suit in equity against W. W. Jones and others to enforce the collection of certain liens against Jones’ land. The following lands were subject to liens and were sold, viz: 87£ acres which Jones held under contract of sale from Crim, to whom he owed $1,210.92 of the purchase money; 42 acres of surface and 42 acres of coal thereunder which had been severed, and a tract оf 41 acres.
Crim had gotten judgments on the purchase money notes, and they thus became liens on the other lands, as well, but not the first liens -on them. All the liens amounted to $4,257.08 as of the 22d of May, 1897. W. W. Jones made no appearanсe
W. W. Jones died in April, 1900, and J. N. B. Crim died, tes-' tate, some years after, and E. H. Crim and M. Peck qualified as his executors.
In September, 1906, Grover Jones and Ethel Jones,, infants, suing by their next friend, filed their petition to have said cause reviеwed and the decrees and deed annulled, as a cloud on their title, alleging that W. W. Jones had not been served with process, and that, therefore, the default decrees were void as to him. They prayed also for an injunction against Crim’s executors, who were also his sole devisees, to prevent them from taking title to the lands, if deed had not then been made, and also to prevent them from encumbering or conveying the lands. Petitioners are the infant grandchildren of W. W. Jones, being children of a deceased son who had died some years before their grandfather died.
The demurrer to the petition was overruled, and this is one of -the errors assigned. Amоng other matters the demurrer raises the question of the statute of limitations. Its application depends upon whether the decree is only voidable, or absolutely void; and this, in turn, depends upon whether, or not, there wаs proper service of process upon W. W. Jones.
The petition may be treated either as a bill of review, an original bill in the nature of a bill of review, or as a motion under section 4036, Code 1906, to correсt a default decree-for error in the record for which it should be reversed in an appellate court, because equity will regard the substance, and not the mere form, of the pleading. Silman v. Stump, 47 W. Va. 641; Sturm v. Fleming, 22 W. Va. 404; Shenandoah Val. Bank v. Shirley, 26 W. Va. 563; Pethtel v. McCullough,
If the decree is absоlutely void for want of jurisdiction of the person of W. W. Jones by proper service of process, the statute of limitations can have no application, and the decree may be avoided at any time; if void, it may be successfully assailed even collaterally.
Sworn and subscribed to before me this Oct. 30, 1895, by said J. B. Knapp, J. H. Felton, Gílc. N. P”.
This return is fatally defective. It does not show where service was had, which this Court has held in the case of Lynch v. West,
In the case of Railway Co. v. Ryan, supra, SNYDER, Judge, in the opinion says: “An invalid service is the same as no service whatever; and the law is well settled that a judgment rendered without an appearance by or service upon the defendant is void for the want of jurisdiction in the court to pronounce judgment.” To the sаme effect are all the authorities above cited.
The recital in the decree that process was duly served upon W. W. Jones is not conclusive; it is only pima fade true, and the process and return thereon may be loоked to to contradict it. Black on Judgments, section 273; Pardon v. Dwire,
But it is insisted by counsel for appellants that TV. W. Jones might have been afterwards served with process in a proper manner ; that the return showing such service might appear on some other copy of the process, if any, which shows the return as to the other defendants, Howell, Gall and O’Neal, against whom process issued at the same time it issued against Jones, and who were shown by the November rules, to which the summons was returnable, to have been served with process; that the summons contаining the return as to them not being exhibited with plaintiffs’ petition as a part of the record, the presumption is, that if the return as to them were exhibited it would show return of another and a proper service as to TV. TV. Jones also. TVe do not think any such presumption arises. It is true that, in the absence of any process whatever showing service as to TV. TV. Jones, the recital in the decree that he had been properly served would be conclusive of proper service. But, when it is shown by the tJ turn actually made as to a certain defendant, the presumption]®
The service of process is so fatally defective as to amount to no service at all, and the decrees are absolutely void. Consequently, the limitations of time in which to file a bill of review, or to make a motion under the statute .to correct a default decree for error for which the same would be reversed on appeal, have no application.
But appellants assign another reason why the demurrer should have been sustained, which is, that thе two petitioners are shown by the petition, or bill, not to be all the heirs at law of W. W. Jones, deceased. The bill alleges “that W. W. Jones departed this life intestate on the 3rd day of April, 1900, and left petitioners as heirs at lаw of the said W. W. Jones, but not as the sole heirs at law of the said W. W. Jones, that E. R. Dyer is administrator of said W. W. Jones.” This point in the demurrer is well taken; it was necessary to make all the heirs of W. W. Jones parties, either plaintiffs or defеndants, so that their rights might have been adjudicated and determined in the same suit.
Petitioners, because of their infancy, have no greater rights than the other heirs. If the statute could be invoked as a bar to the suit, the infants would also be barred, because the statute had begun to run before the death of their ancestor, and having once begun it would continue notwithstanding disability. But it does not apply. Snider v. Broun,
Petitioners allege that they are in possession of the land and that the aforesaid void decrеes and the deed made pursuant thereto, constitute a cloud upon their title, and they pray to have the same removed. This allegation is good when applied to a part of the land, but not good as to thе 87J acres, because as to Kris tract their ancestor had no title. W. W. Jones held this Knd only by virtue of a contract of sale under J. N. B. Crim
In view of the fact that all of the heirs of W. -W. Jones, deceased, were not before the court, the decree of April 22, 1908, was prematurely made; and the decree of September 28, 1906, overruling the demurrer, was erroneous. These decrees will be reversed, and the cause remandеd to the circuit court of Barbour county, with leave to the petitioners to amend their petition, or bill, and to be further proceeded with according to the principles announced in this opinion, and further according to the rules and principles governing courts of equity.
Reversed and Remanded.