149 S.E. 675 | W. Va. | 1929
The crucial question raised by this writ of error is whether the defendants made a general or special appearance. The defendants are non-residents. Concurrent with the institution of the action for damages, an attachment was sued out and a levy made on certain properties alleged to belong to defendants. The case having been matured for hearing, the defendants, on December 17, 1928, by J. H. McGinnis, an attorney of the local bar, as the order of that date recites, "appeared specially and for no other purpose and moved to dismiss this case upon the ground that the plaintiff had not attached any property of the defendants, and upon the further ground that the order of publication was insufficient because it did not describe the estate or property of the defendants which the plaintiff seeks to subject to the payment of this debt." This motion was overruled. McGinnis then withdrew, stating that he would make no further appearance in the case. The case, on the court's own motion, was continued to the next term. Two days later a second summons was issued and served on defendants in Maryland. At the February term no further appearance by defendants being made, a jury was impaneled and damages assessed. Personal judgments were entered against defendants. McGinnis later discovering that his motion of December 17th had been construed as a general appearance, appeared at the bar of the court, and, as an officer thereof, asked that said order of December 17th be corrected in certain particulars. On April 26th the defendants, by other counsel, after notice to counsel for plaintiff, made an appearance under section 5, Chapter 134, Code, and moved that the order of February be set aside, in so far as it attempted to take a personal judgment. Both motions were overruled May 4, 1929. The defendants are now seeking to have the order of May 4th, and so much of the order of February as enters a personal judgment against them, reversed.
In determining whether an appearance is general or special, courts look to matters of substance rather than to form, and to the state of the record at the time the motion was made. *596 Fisher, Sons Co. v. Crowley,
The appearance here, as evidenced by the order, was not to object to the subject matter of the action, as is contended by the plaintiff. The subject matter of the action is a demand for damages, which can only be prosecuted to efficient conclusion and be satisfied out of the property attached. In other words, the motion to dismiss the case here, on the ground that the plaintiff had not attached any property of the defendants, does not question the merits, but merely moves the court to discharge the attachment for want of the jurisdictional facts to sustain it, and asks no relief the granting of which would be inconsistent with an entire want of jurisdiction over the person, and therefore does not appear in the action so as to authorize the court to proceed to judgment against him. The further ground urged, as shown by the order, is that the order of publication was insufficient. This goes to the sufficiency of the process and is a special appearance on its face. That neither the court nor counsel was misled by the defendant's action is shown by the order wherein it is solemnly declared to be a special appearance. That the plaintiff recognized that such appearance as had been made by J. H. McGinnis was not a general appearance is shown not only by the admitted fact that after such appearance had been made, counsel for the plaintiff told McGinnis that if he would put in a general appearance, he would release the attachment on the lumber, but by the further fact that personal service was made, subsequent to the entry of the order in question, on the defendants in their home state.
Whether such motions have merit is not material.Lebow v. Macomber, etc., Rope Co.,
Therefore, tested by an application of the foregoing principles and precedents, the appearance in the instant case amounted merely to a special appearance challenging the jurisdiction of the court, and it follows that so much of the judgment of February 27, 1929, as attempts to bind the defendants personally, is void, and the motion, under section 5 of Chapter 134 of the Code, to set it aside, should have been sustained. This interpretation of the entered order makes a consideration of the court's action on the motion made to correct such order unnecessary.
Reversed.