81 W. Va. 21 | W. Va. | 1917
On tbe 27tb day of July, 1915, the plaintiffs instituted their action before a justice of the peace of Kanawha county, and at the same time filed an affidavit for an order of attachment upon the ground that the defendant was a foreign corporation, and at the suggestion of the plaintiffs this order of attachment was served on A. S. Alexander, R. E. McCabe and R. K. Morton, as persons having in their possession or under their control property of the defendant. The summons was not served upon the defendant, and on the 6th day of August, that being the return day of the summons, a second summons was issued returnable on the 4th day of September. This summons was posted by the constable as provided by the statute. On the 4th day of September the justice’s docket shows that the garnishees appeared and filed their answer, that notice was given that the same would be contested, and that the cause was continued by agreement to the 25th day of September. Several • other continuances were had until finally, on the 23d of October, the justice rendered a personal judgment against the defendant for the sum of $146.88 and costs, and rendered judgment for a like amount against the garnishees. From this judgment the garnishees appealed to the intermediate court of Kanawha county. In that court the defendant appeared for the purpose, and for the purpose only, of moving to quash the attachment. This motion was overruled by the intermediate court, and the defendant made no further appearance to the action. The intermediate court thereupon rendered a personal judgment against the defendant for the sum of $146.88, and against the garnishees for the sum of $141.77, it being ascertained that this amount was in the hands of the garnishees belonging to the defendant. The defendant and the garnishees applied to the circuit court for a writ of error to this judgment of the intermediate court, which was refused by the circuit court, and to this action of the circuit court this writ of error is prosecuted.
It is contended that the justice of the peace never acquired jurisdiction to render any judgment- in this cause, for the reason that the second summons was made returnable to a
. But the plaintiff contends that the justice’s docket shows an appearance by the defendant, and that this waiyed the issuance and service of the second summons. The fact that there is an entry .on the justice’s docket, on the day fixed for the return of the second ■ summons, that the case was continued by agreement on the coming in of the answer of the 'garnishees, and the notice to contest their answer, is relied upon as an appearance by the defendant, giving jurisdiction to the justice to render a personal judgment, and also giving jurisdiction to render judgment against the garnishees. The justice’s docket does not show that anybody appeared except the garnishees, and it does not indicate that the defendant agreed to the continuance. In order for a justice of the peace to acquire jurisdiction of the parties to a suit by appearance where there is no service of process, his docket must show that the party did appear. Where there are several parties interested in the defense of a- suit, as was the case here, and some of them were served with process, and it is shown that those who were thus served did appear, as in this case, it will not be held that those not served with process made, such an appearance simply from the fact that the case was continued by agreement. It will be presumed that such agreement was had between the parties actually appearing as shown by the record and the plaintiff. White v. White, 66 W. Va. 79.
Can this cause now be remanded to the circuit court for the purpose of acquiring jurisdiction against the defendant by .the issuance of a second summons ¶ When the appeal was taken from the justice the case was transferred to the intermediate court for a trial de novo to be had therein. The in
We therefore reverse the judgment of the circuit court, as .well as the judgment of the intermediate court, of Kanawha county, and enter judgment here dismissing the suit without prejudice to the right of the plaintiffs to assert their claim in any other appropriate suit or proceeding.
Judgment reversed, and action dismissed.