157 S.E. 46 | W. Va. | 1931
This writ of error involves review of the refusal of the circuit court of Kanawha County to prohibit the enforcement of an execution for $100.00 with interest from June 4, 1930, and costs, issued by C. E. Jarrett, Esq., a justice of the peace of said county, on a judgment rendered by him on said date in the action of Kanawha-Boone-Logan Bus Company against Nelson Transfer Storage Company.
The summons in the action before the justice purports to have been executed on the day of its issuance by delivery by a constable of a copy thereof to W. S. Abbott, treasurer and manager of the defendant. The return of the constable was amended by him after the institution of this proceeding in the circuit court, and the amendment of course relates back to the date of service. The copy of the summons served as aforesaid was not signed by the justice, nor did it carry the date of its issuance. In their answer to the petition in prohibition the respondents aver that the summons was duly and legally issued by the justice and regularly served by the constable. In its special replication to said answer the petitioner denies that any summons in said action was ever served on it, and denies further that any summons was ever legally issued therein by the justice. The record herein discloses the fact however that upon receipt by the treasurer and manager of the unsigned and undated copy of the purported summons he forthwith delivered the same to a representative of an insurance company with which the defendant carried protection against such matters as were involved in the suit. The insurance company at once delivered the paper to an attorney with request that he look into the matter. He did so, but did not make any appearance at the trial, and on the *99 day of the trial he informed counsel for the plaintiff that he would not make appearance. Presumably the reason he did not make appearance was because he considered that the defendant had not been regularly summoned. And so, when execution was issued, he resorted to this proceeding in prohibition to prevent the enforcement of the execution.
Whether the original of the summons had been signed by the justice before its issuance and therefore necessarily before the constable made his return thereon does not affirmatively appear from the record. The constable says that he is unable to say definitely about that matter, but that he assumed that it was regular at the time. The justice did not testify. And though when the prohibition matter came on to be heard, the original summons carried the signature of the justice under date of the 20th of May, 1930, it does not appear from the record whether he signed it on that date or later.
In determining whether an attack upon a judgment is direct or collateral, the basic factor to be considered is whether the proceeding involves a review or annulment of the judgment, or a mere avoidance of its effects, as, for example, by preventing the enforcement of an execution predicated thereon. In the former instance the attack is direct; in the latter, collateral. A judgment debtor's effort to prevent by prohibition the enforcement of an execution against him on the ground of lack of jurisdiction of the justice to enter the judgment which constitutes the basis of the execution, is a collateral attack on the judgment. For full discussion of these matters see Freeman on Judgments, (5th Ed.), Vol. 1, secs. 304-312. While it is a general rule that a collateral attack upon a judgment or a decree is warranted only where the record discloses want of jurisdiction, Lough v. Taylor,
Upon consideration of the whole record of the proceeding before the justice it appears that, upon institution of suit by the Bus Company against the Transfer and Storage Company, summons was issued on the 20th of May, 1930, returnable the 4th of June, 1930, and placed in the hands of a constable who returned the same on the 20th of May, as executed by delivering a copy thereof to the treasurer and manager of the defendant, and that on the 4th of June, the plaintiff being present and the defendant not appearing, the magistrate heard evidence offered by the plaintiff and rendered judgment in its favor for $100.00 with interest and costs. These proceedings being regular on their face, the burden does not devolve upon the respondents to prove that they were in fact regular. The burden is the other way. It rests upon the petitioner to prove the alleged irregularity. Where the jurisdiction of a justice appears by sufficient evidence or proper averment in his docket, there arises a presumption of law in favor of the correctness of the jurisdictional facts or averments in the record, and the burden of overcoming such presumption rests upon him who attacks the jurisdiction. A justice, who, under his oath of office makes an entry of a *101
jurisdictional fact in his docket, is entitled to a presumption that he did it truthfully and correctly in the absence of a showing to the contrary. His docket entries are prima facie
correct. Ex parte Samuel et al.,
It is urged by petitioner that under the rule ofNuttallburg Co. v. Bank,
We affirm the circuit court.
Affirmed.