83 Va. 423 | Va. | 1887
delivered the opinion, of the court.
The question is whether there is error in the action of the judge in permitting the return to be amended, and in dismissing the motion. It is conceded that the original return is defective. If, however, leave to amend was properly granted, then the amended return shows that the writ was served in conformity with the provisions of the statute in relation to the service of process in such cases. Code 1873, ch. 163, § 1; Id., ch. 166, § 5.
The learned counsel for the plaintiff in error concedes that the return was amendable during the term at which the office judgment was confirmed. He earnestly contends, however, that the defect in the return was jurisdictional; in other words, that the return being defective, the judgment was entered without evidence of legal notice of the action to the defendant, and consequently that the judgment and all the proceedings subsequent to the issuing of the writ were coram, non judice and void, and passed beyond the control of the court, or of the judge thereof, after the end of the term at which the judgment was confirmed.
We are of opinion that this position is untenable, the question it involves being no longer an open one, having been settled by previous decisions of this court. In Stone v. Wilson, 10 Gratt. 529, which was a motion against a sheriff for a judgment for the amount of a certain execution of capias ad satisfaciendum which went into his hands, and which had been returned “ executed ” by one of his deputies, an amendment of the return was permitted after the notice of motion had been served and the case had been docketed, and the case proceeded on the amended return. Upon the question of amending the return the judges were agreed. Judge Moncure, in his opinion, said: “A court from which process is issued may permit the
In Goolsby v. St. John, 25 Gratt. 146, the same view was taken by the court with respect to amending a return on a writ of summons. In that case application was made to a court of equity for relief against a judgment by default, on the ground that the return on the writ upon which the judgment had been obtained was defective, and therefore that the defendants in the judgment had not been lawfully summoned. Relief, however’, was denied on the ground that the complainants had an adequate remedy at law. “ The appellants,” said the court, “ might have appeared in the circuit court at any time before the expiration of five years after the rendition of the judgment at law against them, and moved the court to set aside the judgment and all the proceedings in the suit subsequent to the return of the summons, on account of the defective return thereof. On such motion the sheriff might have amended his return, on leave obtained from the court for that purpose, and thus have cured the defect. But if he failed to do so, the court might have sustained the appellants’ motion; in which case the plaintiff at law would have had to sue out a new summons, and the appellants would then have had an opportunity to make their defense at law.”
In the light of these decisions, it would have been competent for the circuit court, whence the writ issued, to have permitted an amendment of the return, had the application to reverse the judgment been made to the court in term instead of to the judge thereof in vacation; and in this particular the authority of the judge in vacation is
The case of Settlemier v. Sullivan, 97 U. S. 444, the principal casé relied on by the plaintiff in error, is not in point. There a judgment by default obtained in one of the courts of Oregon was held void by a circuit court of the United States, on the ground that the sheriff’s return on the summons issued in the action in which the judgment had been obtained was defective. And this ruling was affirmed by the supreme court of the United States, following a previous decision on a similar point by the supreme court of Oregon. It does not appear from the report of the case that the facts were alleged to have been incorrectly or not fully set forth in the return, except that the record recited, in general terms, that the defendant had been “duly served with process.” Nor does.it appear that any attempt was made to amend the return, and if a motion to that effect had been made, it could not have been granted in the Federal court. So that the decision in that case has no application to the case at bar.
And the same may be said of the case of Carr v. Meade’s Ex’x, 77 Va. 142. In that case it was held that a sheriff’s
It is needless to comment upon other cases relied on by the plaintiff in error. It is sufficient to say that, like the cases just mentioned, they have no bearing on the present case. The order dismissing the motion is affirmed.
Bichardson, J., dissented.
Judgment affirmed.