196 S.E. 385 | W. Va. | 1938
Petitioner, W. H. Pettry, seeks to prohibit the judgment of a justice against him on the ground that he was not served with summons, and did not appear. *21
Summons was allegedly served by M. L. Ice, a private person, who made affidavit that he did so. He had not been appointed a special constable. He testified in this proceeding that the summons was left by the constable with him for service; that he informed Pettry there was a paper (the summons) for him in the pocket of a shirt hanging nearby, and that Pettry himself got the paper. Pettry testified that while Ice did refer him to a paper in the shirt pocket, he did not get it. He is corroborated by two other witnesses.
The constable had no power, statutory or otherwise, to designate a process server. See generally, Gilbert v. Brown,
Furthermore, Acts of 1863, chapter 122, sections 36, *22
38 and 39 provided that the summons of a justice should be directed to the constable, "unless a person be specially deputed by the justice to serve it, in which case it shall be directed to such person in name;" and that the justice, deeming it proper, might appoint a special constable to serve a process, but should note the appointment on the docket and should be liable on his official bond for the acts of the appointee. There has been no material change in these provisions, except to limit the appointment of a special constable to cases where a duly elected constable was not available. The provisions are incorporated in our present Code,
Lawful service of process is essential to jurisdiction.Colborn v. Booth,
The writ is issued.
Writ issued. *23