44 W. Va. 512 | W. Va. | 1898
One objection to the judgment made by defendant is that the action was in the circuit court of Summers county, and the summons against the sole defendant was directed'to the sheriff of Pleasants county, and there served, and that its motion to quash the summons ought to have prevailed, as section 1, chapter 123, Code 1891, cl. 2, says that the suit shall be brought in any county, “if a corporation be a defendant, wherein its principal office is, or wherein its president, mayor, or other chief officer resides; or if its principal office be not in this State, and its mayor, president or other chief officer does not reside therein, wherein it does business.” It is argued that in Humphreys v. Newport Co., 33 W. Va. 135, (10 S. E. 39), it is said that a foreign corporation doing business here may be sued in any county prescribed by that section, if service can be there had, and hence the writ could not be directed to or served in another county, and the clause contemplates
Another ground of alleged error is that the return of service does not show that it was in Pleasants county. It says it was executed “by delivering an office copy to J. C. Noland, the attorney of record in this State, appointed by said corporation, and upon whom service Of process may be had in Pleasants county, West Virginia, in which county said J. C. Noland resides.” The officer did not intend to say that service might be had on the agent in Pleasants county, but, that he served the writ in that county. Punctuation only goes to support this point. It yields to intention. City of Charleston v. Reed, 27 W. Va., 682.
Another point is that the certificate of the oath to the affidavit for attachment does not show of what county the person administering the oath is notary. It has the caption, “State of West Virginia, County of Summers, to wit,” and is signed by Quesenbei'ry, and then has: “Taken, subscribed, and sworn to before me, this 22d day of December, 1896, in Summers county. T. N. Read, Notary Public.” This point is seriously made. The officer, in the caption, appeals to Summers county. For what purpose? Clearly to ascribe his authority to it. He swore the party in that county. Shall we not infer that he did not usurp authority by acting when he was a notary of another county ? Shall we not say he was a notary of the county named and in which he says he administered the oath? Hobbs v. Shumates, 11 Grat. 516, meets this objection, holding that a certificate to a deposition headed, “State of Texas, Guadalupe County, to wit,” signed, “S. B. Moore, J. P.,” was good. 1 Devi. Deeds, § 486, meets it also. See full note on defective certificates of oaths, etc., Livingston v. Kettelle, 41 Am. Dec. 168. In Bensimer v. Fell, 35 W. Va., 15, (12 S. E. 1078), we held that, where a certificate of acknowledgment did not show that the party appeared in the county, we would presume he did, and not that the officers usurped authority in another county. For a stronger reason, where a certificate shows the party to be an officer, and that he swore the party in a county, we will say he was an officer of that county.
Another point is made that, as this foreign corporation
Another point made against the judgment is that the court refused the defendant the right to plead. This refusal rests on the ground that the plaintiff had filed the affidavit as to the amount .due required by section 46, chapter 125, Code, and that the affidavit tendered with the plea was not good. The defendant says that to bar a plea the plaintiff’s affidavit must be infallibly filed with the declaration, and not later. As the declaration was filed at rules, and the affidavit appears to have been sworn to later, it is contended that it cannot bar a plea. It was sworn to before the second rules. The opinion is expressed in Hunter v. Snyder, 11 W. Va. 207, that the affidavit may be filed any time before entry of judgment; and though the Code, as it now is, says, if the plaintiff “has filed with his declaration” a certain affidavit, he may have judgment, yet it also says he may file it later. See clause saying that if plaintiff has not filed affidavit with declaration he shall not have judgment until he does file it. The defendant was hound to be at rules and at court to note this affidavit.
It is argmed that all objection to the writ and return has been waived by the action of the defendant in the circuit court. It first moved the court to quash the summons and return, not expressly limiting appearance to those two purposes, and the court, without further defense by the defendant, acted on that motion by overruling it. Next it demurred to the affidavit filed with the, declaration, and such demurrer was overruled. Next it tendered its affidavit to set aside the office judgment, and, it being rejected, it tendered a plea of non assumpsit, which was rejected. Now, as a legal question of some importance, did this action by defendant waive any inherent defect in the writ? If we notice closely the decisions as to what appear-
I have considered the questions presented for error, but the point is made by the defendant in error that the rejection of the plea and affidavit cannot be considered in this Court, because there is no bill of exception nor exception to'such rejection, and I think this point well made. Shank
Affirmed.