United States Blowpipe Co. v. Spencer

Lead Opinion

Bkannon, Judge:

A former decision of tbis Court in tbis case will be found in 40 W. Va. 698, (21 S. E. 769), where full facts will be found. I refer to Judge English’s opinion, also, as fully stating tbe facts. After tbe case went back to tbe circuit counrt from tbis Court, the Point Pleasant Furniture Company made the objection that in fact tbe demurrer passed upon by tbis Court, which tbe circuit court record recited as having been joined in by said furniture company, was not its demurrer, and that it bad been, by mistake or wrong, filed in its name. It also pleaded that it never bad been served with process, claiming that service upon Wiley as its attorney was void, because Wiley was also- attorney for tbe Blowpipe Company, an adversary to its interests. Tbe Court corrected tbe record by striking tbe demurrer out as to said furniture company, and held the service of tbe summons upon it as void. By striking out said demurrer, it reopened for litigation tbe questions settled by tbis Court upon the demurrer in its former decision, and, by bolding tbe service of process upon tbe furniture company void, it left tbe process unserved as to tbe furniture company; andi, on tbe theory that a suit is not commenced until service of process, more than six months bad elapsed since the filing of tbe mechanic’s lien before suit brought, and thus relief to tbe plaintiff was barred. It wholly dismissed tbe bill, and tbe plaintiff, tbe Blowpipe Company, and the Carving-machine Company appealed.

I bold that tbis action of the circuit court in -striking out tbe demurrer and service of process upon the furniture company is erroneous, — clearly so; for tbe circuit court record asserted that tbe furniture company joined others in a demurrer, and, though that demurrer was not signed by it, tbe court held it a demurrer on tbe first bearing, and, though tbe opinion of tbis Court does not, in referring to that demurrer, include tbe furniture company expressly as a demurrant, it does not expressly exempt it from responsibility for that demurrer; and hence we must -say that, when tbis Court passed upon tbe record of tbe circuit court, it, in law, should be held as acting upon tbe demurrer, Stn legal contemplation, as if tbe furniture company were a party thereto, thus binding that company to everything that was decided by this court on the former appeal. Now, on general principles, a decree of a circuit court or 'of this Court is res judicata upon all questions of law and fact comprehended in the record of the decision. They cannot be litigated over again. McCoy v. McCoy, 29 W. Va.794 (2 S.E. 809). When this Court has decided a case, and the principles of law arising therein, it is not open to any bill of review, but is a finality. Henry v. Davis, 13 W. Va. 230. And a decision of this Court binds every party, appellant or appellee, as to whatever is decided by it, whether served with process in the appeal or not. It seems hard to bind a party to an adjudication in this Court where he was not served with process, but Newman v. Mollohan, 10 W. Va. 488, goes that far. This has been .since approved in this Court. Renick v. Ludington, 20 W. Va. 537, and Ferguson v. Millender, 32 W. Va. 32, (9 S. E. 38.) But in this case the furniture company, by an attorney of indisputable authority, accepted service of process in the former appeal, appeared in this Court, argued the case, asked for and obtained a rehearing of the former decision, made no objection to service of process prior to the circuit court decree, said nothing against its demurrer, but claimed the benefit of it here; and now to allow it to ignore all this action, and frustrate the former decision of this Court upon the matters before it, would seem to me to be “marching up the hill only to march down again,” and yield everything to technicality, and take from the creditors of the furniture company the fixed interest which they have under the former solemn decision of this Court. This we cannot allow it to do. It cannot reopen the questions put to rest by the former decision. This Court decided the principles of the case upon that demurrer and service of process. It decided that the blowpipe company had a valid mechanic’s lien upon the property of the furniture company, and that its suit had been brought within, the six months, and we hold those questions as finally adjudicated, as between the blowpipe company and the furniture company, — -beyond recall. This Court, after deciding the bill good and brought in time, and the mechanic’s lien good, by overruling the demurrer did not send the case back to be dismissed on any idea that process was void, and the demurrer and appearance null, but to be further proceeded with on the basis that it was a suit in time, and on appearance to it, and on a valid mechanic's lien. The circuit court could not go behind all this action of this Court. And just here I want to say that I do not claim that service of process on, or appearance by, a person who is attorney in adverse interest to the defendant, is good; I do not claim this, but I think such service and appearance not absolutely void, but voidable on motion in time; and, whether I am right as to this or not, I am firmer yet in the opinion that, as no objection was made on that ground on the former appeal, such service and appearance can be now treated as neither void nor voidable.

The point is made that this suit was barred because not brought within six months, on the theory that service was not within that time. I doubt the correctness of Stone v. Tyree, 30 W. Va. 687, (5 S. E. 878), in its holding that Us pendens dates from the service of subpoena only. In an action at law the suit dates from the writ issued. Newman v. Chapman, 2 Rand. (Va.) 93. Authorities there shown date it, in a chancery suit, from service. This ruling is based on the English chancery practice, from the fact that never till bill filed did writ issue, and the mere filing of a bill before writ was no suit; but now our Code (chapter 224, section 5 )says that “process to commence a suit shall be a writ;” applying to both chancery and actions at law. A suit exists at its date. Lambert v. Manufacturing Co., 42 W. Va. 813, (26 S. E. 431.) And I must assert that, upon a review of authorities, the issuance of the writ, generally speaking, is the beginning of the suit, if no statute controls. Jackson v. Hull, 21 W. Va. 601. There should be no difference, under our statute, between law and chancery, as to this. I refer to Judge ENGlish’s opinion as a fair discussion on this subject. I only advert to it here because it arises in the case, and is a matter of great interest in practice; but really I need not discuss it, because it lies behind our former decision. That settled that the suit was in time. I can by no means agree with 'Judge ENGlish or the circuit court in dismissing the suit outright. Let us suppose that the court had properly struck out the service of process on the furniture company on its demurrer. What then? Should it have dismissed the case? It could not on the idea that the writ was not issued within six months, for it was. It must then dismiss the suit on some theory that there has been a hiatus in the proceedings, or, rather, as Judge English would say, on the theory that there could be no further process, because the statute only provided for alias process in cases where the original is not returned executed, whereas in this case it was returned executed. It seems very strange to me that in one breath it is said that the service is void, and in the next that still no alias can issue. Why, if the return be void and empty, does it not leave the process without return? And, if without return, Code, chapter 124, section 8, says that an alias may issue. The service is null, and yet it has the same effect as the valid service has to prevent alias summons. This cannot be. If that service were held void, it should be treated as no service, and further process awarded in court, or the case sent to rules, in order that it might issue, instead of dismissing the bill and destroying the rights of the plaintiff therein. I do not care whether that section of the code applies or not, but it does on the theory of the nullity of the return; and I assert that, outside of any statute, a court has, under its common-law powers, the right to take any steps by further process to bring the parties before it. The statute is not the full measure of the power. Its provisions are simply cumulative to its common-law powers. It was entirely erroneous to dismiss the bill, even if the court hadl had the power to strike out the return and demurrer, as in that case it should have remanded the bill to rules, to have further process served upon the furniture company.

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Rehearing

ON REHEARING.

Re-argument has not changed my opinion. I should have more plainly said in the above opinion that the furniture company is not only precluded from raising the ques^ tion of the validity of the lien of the blowpipe company by the sheer force of our former decision, taken alone, fier se but it cannot now say there was no demurrer or appearance, for by appearing in the former appeal and relying upon that demurrer, i't ratified and confirmed that demurrer as though filed by the proper attorney. It sought the benefit of that demurrer on the former appeal, and never, until defeated, did it repudiate that demurrer. It will not do to ask us now how the furniture company could have taken advantage of said demurrer — not being its demurrer — on tbe former appeal. If available at all, there was some process, under tbe bead of showing want of jurisdiction of the person in tbe lower court, or in some way; but no such objection was made, and tbe furniture company went on in this Court just as if it had no objection whatever to tbe demurrer. Most of the cases cited to show that service on tbe president of tbe furniture company is bad, because be is one of tbe attorneys of tbe blowpipe company, are cases where the plaintiff himself was tbe one served as tbe officer of tbe defendant company, whereas in this case be was only attorney.’ Tbe case of George v. Ginning Co. (S. C.), (24 S. E. 41) is a case, where tbe attorney in fact of tbe plaintiff to prosecute the suit was the officer of tbe defend-tlie company served with process, and service on him was held bad; but note that tbe defendant, even before judgment, moved, for that cause, to quash tbe service, and, being refused, carried tbe case, on that very point, to tbe supreme court. Here such is not tbe case. Tbe point was not sought to be used until after tbe decision of tbeformer appeal. Tbe former decision is final, and binding to establish tbe lien of tbe United States Blowpipe Company. It is not, however, final as to tbe claims of tbe Moore Carving Company, as they have not yet been passed on by tbe circuit court. Of course, tbe former decision has no effect as to tbe Page Belting Company, tbe Fairbanks Company, Mayer & Lowenstein, and tbe American Drier Company, as they were not parties till afterwards. Tbe decree is reversed, and tbe case remanded for further proper proceedings, recognizing tbe lien of tbe blowpipe company, and enforcing it, and tbe lawful rights of other parties appearing entitled, against tbe fund in tbe bands of tbe receiver.

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Dissenting Opinion

ENGLISH, Judge,

dissenting.

I cannot concur in tbe opinion of tbe Court banded doAvn in this case by Judge Brannon, for tbe following reasons:

This was a bill filed by tbe United States Blowpipe Company in tbe circuit court of Mason County against J. S. Spencer and others, having for its object tbe enforcement of an alleged mechanic’s lien. Tbe bill was demurred to in said circuit court, the demurrer sustained, and an amended bill filed, which was also demurred to, and tbe demurrer sustained; and the plaintiff, declining to amend, obtained an appeal to this Court, which was decided, and the opinion handed down, on the 17th of April, 1895,. in which, for reasons stated by Holt, PresideNt, in the opinion aforesaid reported in 40 W. Va. 698, (21 S. E. 769), the decree complained of was reversed and remanded, a rehearing granted, and the same conclusion reached. On the 21st day of May, 1895, the cause was again heard upon the mandate from this Court, and upon the papers theretofore read therein, and a rule was awarded against all of the defendants requiring them to answer the bill within thirty days. On the 3d day of September, 1895, the defendants James P. Hayes and J. P. R. B. Smith, trustees, tendered their respective answers, which were ordered to be filed, and the plaintiff replied generally thereto. On the 11th day of February, 1896, several affidavits were presented and filed in support of a motion to correct an interlocutory decree entered in the case on the 19th day of September, 1893, so far as the same showed an appearance by demurrer by the defendant the Point Pleasant Furniture Company to to bill filed by plaintiff in this cause; and the court beii'ng satisfied that said decree was inadvertently entered, so far as the same recited that the Point Pleasant Furniture Company appeared by its attorneys and tendered and filed with the other defendants therein named its joint demurrer to plaintiff’s bill of complaint, said decree was corrected by striking therefrom the name of the Point Pleasant Furniture Company, and, the court being satisfied from the affidavits filed that the said furniture company had in no manner appeared in this suit for any purpose, the said bill, as to it, was taken for confessed, which order was objected to by the plaintiff. The Moore Carving-Machine Company, the Page Belting Company, the Fairbanks Company, Mayer & Lowenstein, and the American Drier Company, all creditors of the Point Pleasant Furniture Company, filed their petitions asking to be made parties defendant to this suit, and they were accordingly made such defendants. The furniture company filed its -special plea in writing claiming that it never had been .served with process commencing this suit; that the process was served upon the attorney for the plaintiff, who at the -same time was president of said furniture company, which company at that time had an attorney of record duly appointed by it to accept service of process, upon whom process could have been served at the time of the institution of this suit, and at the time of the service of the .summons upon the attorney for the plaintiff, who was president of said company,- — and claiming that service of process upon said attorney for the plaintiff was illegal and void, and that said service and return should be quashed. The Page Belting Company, the American Drier Company, the Fairbanks Company, and Mayer & Lowenstein, creditors of -said furniture company, holding liens on the money in controversy, filed separate pleas, in writing, to the same effect. On September 22, 1896, the plaintiff's attorneys tendered an answer for the defendant company, to the filing of which the American Drier Company, the Fairbanks Company, the Page Belting Company, and Mayer & Lowenstein objected and excepted. On February 16, 1897, John E. Beller, under the direction of one of the plaintiff’s attorneys, tendered another answer for the furniture company, which answer so tendered was substantially the same as the one tendered by plaintiff’s attorneys and rejected by the court, which answer was objected to by the same parties for the reasons assigned in the exception to the former answer tendered as aforesaid. The plaintiff took depositions in support of its claim, and on the 16th of February, 1897, a decree was rendered in the cause dismissing the plaintiff’s bill, with costs, and the plaintiff obtained this appeal.

The first error assigned and relied on by the 'appellant is claimed to have been in permitting the affidavits to be filed, and in allowing the furniture company to wthdraw its demurrer after it had been passed upon by the Supreme Court of Appeals. In considering the question raised by this assignment of error, it is material to inquire whether the furniture, company did file its demurrer to the plaintiff’s bill. Said company certainly did not join in the demurrer to the original bill, for, by reference to said demurrer, it is perceived that said furniture company neither signed said demurrer by counsel, nor is its name mentioned in any portion of the demurrer. In the demurrer to the amended bill, however, the name of said furniture company is mentioned in the body of the demurrer, but its name is not signed to it, by counsel or otherwise. The decree of December 19, 1893, contains this language: “This day came again the plaintiff, by its attorneys, and the defendants, Buss Machine Works, Lane & Bodley Company, the Laidlaw & Dunn Company, James P. Hayes, J. S. Spencer, Point Pleasant Furniture Company, and J. P. R. B. Smith, trustee, by their attorneys; and thereupon said defendants tendered and filed their joint and several demurrers to the plaintiff’s amended bill,” etc. This demurrer appears as part of the record in this cause, and does not appear to have been signed by the Point Pleasant Furniture Company or J. P. R. B. Smith, by counsel, while it does appear to have been signed by the other parties named therein by their counsel. The question whether the furniture company joined in said demurrer is rendered material by the fact that the president of saild company, as counsel for the appellant, instituted this suit, and had process in the same served upon himself, as president of said company. This question was brought to the attention of the court by pleas filed by said furniture company, the Buss Machine Works, the Page Belting Company, and the Fairbanks Company, all of which pleas aver that the process in this case, as to said furniture company, was served upon Rankin Wiley, Jr., its president, who at the same time was the attorney for the plaintiff, which instituted this suit. The action of the circuit court in sustaining this plea, and holding that the service of the process commencing this suit upon Rankin Wiley, Jr., president, etc., one of the attorneys for the plaintiff, was void and of no effect, was made the ground of the second assignment of error relied on by the appellant.

Now, as to the first assignment of error, when we look to the record it is at once apparent that the demurrer to the amended bill was not signed by the Point Pleasant Furniture Company, either by counsel or by its president, The company appears to have been a corporation, and for that reason could not have appeared and demurred in person, and must have appeared by counsel, or its president, if the plea had been to the jurisdiction. So, in the case of Quarrier v. Insurance Co., 10 W. Va. 518, GreeN, Presi-pent,delivering the opinion of the court, says: “The first question to be decided is, did the court err in rejecting the plea to the jurisdiction? The first objection to this plea urged is that the defendant should have appeared by attorney.” In support of which he cites 1 Chit. PI. (7th Eng. 16th Ana. Ed.) 577, 588, who says, “A plea by a corporation aggregate, which is incapable of personal appearance, must purport to be by attorney;” also, Osborn v. Bank, 9 Wheat. 829, 830, in which Chief Justice Marshall says, “It is admitted that a corporation can only appear by attorney,” and, again, “A corporation, it is true, can appear only by attorney, while a natural person may appear for himself.” Judge GrebNúo. his opinion, further says: “If, then, a plea to the jurisdiction cannot be by attorney, and a corporation cannot appear but by attorney, the consequence would be that a corporation could not plead at all to the jurisdiction, — a result contrary to our sense of common justice. The solution of this difficulty is that while it is necessarily true that a corporation aggregate cannot appear in any case in propria persona, and cannot, in a plea to the jurisdiction, appear by attorney, — for in so doing it would admit the jurisdiction of the court, — it may in such case appear by its president, just as an infant, who could not appear in propria persona nor by attorney, must appear by guardian ad litem." Now, while it is true that the decree rendered in this cause on the 19th of December, 1893, contains the recital that the Point Pleasant Furniture Company came, with others therein named, by their attorneys, and filed their joint and several demurrer to the plaintiff’s amended bill, etc., yet it is apparent that this is a misrecital, the demurrer filed not haying been signed in any manner by said furniture company; and, that a demurrer is required to be signed, see Story, Eq. Pl. 448, section 461, where it is said: “In order to prevent delays by putting in frivolous demurrers, it is required by the rules that the demurrer should be signed by counsel;” citing Beames, Orders Oh. 172; Hinde, Ch. Prac. 148; Mitf. Eq. Pl. (by Jeremy) 208; Coop; Eq. Pl. 114, etc. It moreover appears, by affidavits filed, how this mistake and misrecital occurred; the name of the said furniture company having been interlined, after said joint demurrer had been prepared, by counsel for the Buss Machine Works, which interlineation was made in the order filing said demurrer, by the same attorney, at the instance of counsel for plaintiff; said attorney having no authority whatever to appear for said company. Thus, it is made to appear that said company did not appear by attorney. Prof. Minor, in the first volume of his Institutes (page 570), under the head of “Disabilities of Corporations,” says: “The disabilities of corporations are thus summed up, not with entire accuracy, by Sir William Blackstone (1 Bl. Comm. 470, 477): (1) 'It must appear by attorney, for it cannot appear in person; being, as Sir Edward Coke .says, invisible, and existing only in intendment and consideration of law.”

Now, although there are several parties defendant to this suit, it is indispensible that the Point Pleasant Furniture Company should have been before the court, for the reason that is is the property of that company against which the mechanic’s lien was asserted, and from which the various liens claimed by different parties in the suit were seeking satisfaction. In order that the validity of the mechanic’s lien asserted in the plaintiff’s bill should be passed upon and enforced by the circuit court, it was necessary either that process should have been served upon said company, or that it should have appeared gratis; yet it does not seem to have appeared by attorney, — the only way it could have appeared. Was it served with process? The circuit court held that the service was void for the reason that it was served upon the attorney for the plaintiff, who was also president of the defendant company. Can it be thaf service of process upon the plaintiff’s attorney would constitute notice to the defendant? If such was the case, the plaintiff’s attorney might direct process to issue, and either accept service, or appear to the suit by demurrer or answer, and thus waive notice for the defendant; and an opportunity would be afforded him to file an answer admitting the plaintiff’s claims, and thus deprive the defendant of all opportunity of having a day in court, and it might thus be deprived of its property without due process of law.

Again, the duties of the attorney for the plaintiff in this case are utterly incompatible with his duties as president of the defendant furniture company. As plaintiff’s attorney it was his duly to assert and enforce the alleged mechanic’s lien; and, representing the furniture company, it was his duty to make .such defense as was legal and proper, or at least give the directors of said company notice of ■the suit, and the benefit of bis testimony, advice, and any information he was possessed of, bearing upon the matter in controversy. TJpon the question as to the consequences of an attorney’s representing- conflicting interests, the law is stated in 3 Am. & Eng. Enc. Law (2d Ed.) p. 299, as follows: “The effect of an attorney’s acting for parties whose interests are conflicting is to render all acts and consents voidable at their option, if not absolutely void. Thus, where the attorney for certain executors and devisees in a proceeding against a decedent’s estate to sell lands for the payment of the decedent’s debts also represents a claimant against the estate, and procures judgment for her, the judgment will not be allowed to stand, although there may not have been fraud, actual or intended.” So, in the case of Arlington v. Arlington, 116 N. C. 170, (21 S. E. 181), the court, by Montgomery, Judge, held: “It is not necessary that there should have been actual fraud in the procurement of those judgments, in order that they might be set aside, by motion. * * * The rule which forbids the same attorney from representing both parties in adversary proceedings rests upon the broad principle of public policy which precludes persons occupying these fiduciary relations from representing conflicting interests that may tempt them to disregard duty, and lead to injury on one side or the other. The law will not permit its licensedattor-neys to assume relations that will subject them to its temptation, upon grounds of public policy, and it is for this reason that an attorney will not be permitted to represent both sides in any litigated matter;” citing Gooch v. Peebles, 105 N. C. 411, (11 S. E. 415). Agai'n, where the lien of a mortgage was sought to be enforced, in the case of Annely v. De Saussure, 12. S. C. 507, it was held that the positions of executor for the estate of a mortgagor and attornety for the mortgagee are inconsistent, and the same party cannot properly fill both. So, in the case of Spinks v. Davis, 32 Miss., 154, in which an attorney, who was administrator of a. decedent, took a claim for collection against the estate, the court, in its opinion, said: “It was the duty of the attorney diligently to prosecute the claim according to law, and to collect it, if it could be done by legal means. It was the duty of the administrator to scrutinize the claim rigü'dly, and to refuse payment, if there was any dou'bt about its justice in fact, or its validity according to strict legal rules; to defend upon tbe ground of the statute of limitations, the illegality or want of consideration of the claim, or any other bar which was a sufficient defense to it in law. And all such defenses it was the plain duty of the attorney to resist. In short, the attorney was bound to protect the interests of his client, and the administrator was primarily bound to protect the legal interests of the estate. Under such circumstances, the attorney could not have performed his duty to prosecute the claim, if its validity had been doubtful, consistently with his duty to defend the estate against its collection.” The case of George v. Ginning Co. (decided by the supreme court of South Carolina March 9, 1896) (24 S. E. 41), which is cited by appellees in their brief, holds that no valid service of process upon a foreign corporation can be had by serving the papers upon one of its officers, who is himself plaintiff in the action, or attorney in fact for the plaintiff. The court, in the course of its opinion, says: “The question, then, resolves itself into an inquiry whether a person can legally commence an action against a foreign corporation, of which he happens to be an officer or agent, by serving Mmself with the process or summons necessary to commence such action. So far as we are informed, there is no authority in this State upon the point, and we do not think any is needed to show that such a proposition, so utterly at variance with any proper conception of the due and orderly adminstration of justice, cannot for a moment be entertained. To concede such a proposition would open the door to the grossest fraud, which would be a reproach to the administration of justice. Of course, we do-not mean to intimate that any fraud was intended in this particular case; but we cannot assent to a proposition which, if established, would afford such an easy mode of perpetrating frauds,” — citing Buck v. Manufacturing Co. 4 Allen, 357; Behm v. Institution, 125 Ind. 135, (25 N. E. 173.) In the former case it was held that it is not sufficient service of a writ against a corporation to serve the same upon the plaintiff, as president of the corporation, and a default which has been entered in an action in which the writ was thus served will be stricken off by the court, of its own motion, whenever the facts are brought to its attention; and in the latter case it was held that a statute providing for tbe service of process upon any agent of a foreign corporation, wben sued, need not contain an exception, as to actions brought against it by its agent, that process shall not be served on such agent, to render such service void. Counsel for the appellant seek to- draw a distinction between the case of George v. Ginning Co. supra, and the case at bar, in this: that the service in that case was upon an officer of the defendant corporation, he at the same time being the attorney in fact of the plaintiff for the commencement and prosecution of the action, while in the case at bar the officer upon whom the process was served was the attorney at law of the plaintiff. But it occurs to us that the powers of the attorney in fact would be more limited than those of the attorney at law. The attorney in fact would be confined to the specifications of his power of attorney, while the attorney at law would be clothed with the general powers conferred by law upon the profession, and interested in the result, to the extent of his fees. And if process could not be served upon an officer of a defendant company who was an attorney in fact for the plaintiff, and who was expressly authorized and empowered to bring- the suit, how could such process, with any degree of propriety, be served upon an officer of such defendant company who was-attorney at law for the plaintiff, with all the powers incident to that relation? An attorney at law is so closely identified with the interests of his client in the prosecution of his suit, and his interest is such in the result, that I cannot think that process served upon such attorney, who was at the same time president of the defendant corporation, should constitute adverse notice to such defendant; and process thus served would not authorize a judgment of decree. That service of process executed in this manner is absolutely void, see 22 Am. & Eng. Enc. Law, p. 119, note 1 ; Rehin v. Institution, 125 Ind. 135, (25 N. E. 173); 6 Thomp. Corp. section 8047; Mining Co. v. Edwards, 103 Ill. 472.

Having arrived at this conclusion, we next inquire whether there has been such appearance on the part of the defendant furniture company as would constitute a waiver of notice. This question has already been considered, in determining whether a demurrer wasfiledtotheplaintiff’sbill bythePoint PleasantFurniture Company; and the conclusion was that said company did not appear and demur in the only manner it could bare appeared, to wit, by counsel, and that there was plainly a misreeital in said interlocutory decree, which the court had a right to correct on motion. We may cite, in support of the right of the circuit court to correct misrecitals in interlocutory decrees, 5 Enc. Pl. & Prac. p. 1041, where it is said. “It is well settled that interlocutory orders adjudicating no question raised by the pleadings may be amended or vacated at any time before the case is disposed of by final decree;'’ citing Ryon v. Thomas, 104 Ind. 59, (3 N. E. 653), where it is held that “an interlocutory order entered in a matter of purely equitable jurisdiction is within the control of the court making it, until the proceeding in which it is made is finallydisposed of; and it may be amended, modified, or set aside, as the right of the case requires, either upon direct and summary proceedings fo<r that purpose, or by the court upon its own motion. See, also, Steenrods's Adm'r v. Railroad Co., 25 W. Va. 135, where SNydee, Judge said, “The same court has the power, before the final decree, to correct any error it may have committed.” To the same effect, see Miller's Adm'r v. Cooks' Adm'rs, 77 Va. 806 (Syl., point 3); Wright v. Strother, 76 Va. 857 (Syl. point 1). See, also, Kendrick v. Whitney, 28 Grat. 652, 653, as to the manner of making such corrections. If, then, the Point Pleasant Furniture Company was not .served with notice and did not appear in the cause before this case was before this court on the former appeal, it follows that the rights of said company were in no manner adjudicated or passed upon by the conclusion reached in the opinion reported in 40 W. Va. 968, (21 S. E. 769); and while it is true the defendant company was a necessary party to this suit, and, when the appeal was awarded, was cited at the instance of the appellant, yet unless said company had been properly summoned before the circuit court, or voluntarily appeared and pleaded, this Court,, in reviewing the decision of the circuit court, could not have passed upon the rights of said furniture company with reference to the matter in controversy; and, as far as the appearance of said company in the court below is concerned, it will be seen, by reference to the opinion of this Court (40 W. Va. 710, 21 S. E. 769), that the demurrer in the cause was not treated and considered as the demurrer of tbe Point Pleasant Furniture Company, but was expressly considered as tbe demurrer of other parties, and tbe action of this Court in overruling said demurrer in no manner affected or concluded tbe question as to tbe mechanic’s lien asserted by tbe plaintiff.

We come now to consider tbe last assignment of error, which claims that tbe court below erred in dismissing tbe plaintiff’s bill. This bill was filed, as we have said, for tbe purpose of enforcing a mechanic’s lien. It is claimed said lien was filed on tbe 12th of July, 1892. On December 19, 1892, tbe plaintiff caused tbe subpoena to be issued, returnable to January rules, 1893. On December 26, 1892, R. Wiley, Jr., as attorney for tbe plaintiff, caused said subpoena to- be served upon himself, as president of tbe Point Pleasant Furniture Company, and at February rules, 1893, tbe bill was filed. For reasons hereinbefore stated, and following what we regard as tbe law bearing upon tbe question, we have held that such service was contrary to tbe policy of tbe law, and void. Was tbe Point Pleasant Furniture Company before tbe circuit court, then, either by service of process or by voluntary appearance? For reasons above stated, we have concluded that said above company did not join in tbe demurrer, and was not in that way made a party to tbe suit; and if we are correct in saying that, in the circumstances, process could not be served upon Rankin Wiley, Jr., as president of said company, surely Wiley, as such president, would-not be authorized to appear and answer for tbe company, as be attempted to do in this case. Tbe appellant, in bis brief, relies upon tbe case of Newman v. Mollohan, 10 W. Va. 448, which was an attachment case against several defendants, among whom was Newman. A joint judgment was rendered against the defendants. One of them, who bad pleaded, took an appeal, and tbe court of appeals affirmed tbe judgment. Newman, against whom tbe joint judgment was rendered (a nonresident), after due notice, moved tbe circuit court which rendered tbe judgment to reverse and annul tbe same because tbe order of publication against him bad not been made in tbe manner prescribed by law, and because there bad been a personal judgment against him, though be bad never been served with process, etc. It was held that tbe circuit court properly overruled bis motion, as, after the affirmance of the judgment by the court of appeals, defendant could not make a motion in tbe circuit court to reverse or modify the judgment, though the record of the case in the court of appeals failed to show that the defendant making the motion was notified of the appeal; it being conclusively presumed he was so notified, and that all questions raised by his motion had been considered and decided by the court of appeals when it affirmed the joint judgment. This case is very different from the one at bar. Here there was no joint judgment. Part of the defendants (not including the furniture company) demurred to the plaintiff’s amended bill, which demurrer was sustained; and, the plaintiff declining to amend, it was decreed that the plaintiff’s bill and amended bill be dismissed, and the plaintiff appealed.

When the writ issued from this Court, it is claimed that H. E. Howard, attorney for the defendant company, accepted service of such process. This process and its return, however, are not part of the record in this cause. It appears that H. E. Howard was the attorney appointed to accept service for said furniture company, and, if he did so, it would have no further effect than it would if such process had been served on him, as such attorney, by an officer.

The difference between this case and that of Newman v. Mollohan, is that, although the furniture company was no party to the demurrer, the judgment thereon was in its favor, and not against it, as it was against Newman. And the question here is whether, with a decree in its favor, of which it had no inclination to complain, the plaintiff could, on an appeal from a decree entered in a cause in which the furniture company was not served with process and did not appear, obtain a decree in this Court binding and conclusive upon said company, which never was before the circuit court by process or otherwise, and which has not as yet had an opportunity of being heard as to any judgment of which it could complain. In the case of Newman v. Mollohan, Newman was before this Court, praying the reversal of a judgment against himself in a cause in which he was a joint defendant, and a joint judgment had been obtained against him and others. In the case at bar, no judgment or decree had been obtained against the furniture company, and the appellant was seeking to show that it was entitled to a decree against said company, and that its suit had been improperly dismissed. In order to do this, the burden was upon the appellant to show that it had properly acquired jurisdiction by service of process upon said company, or by its voluntary appearance. The presumption that everything had been properly done to confer jurisdiction does not come to the aid of the appellant in this case, as it would if a decree had been obtained against said furniture company, and it was appealing from said decree. When the United States Blowpipe Company obtained this appeal, and cited the furniture company to appear, it undertook to show to this Court that it was entitled to a decree against said company, and that the circuit court had improperly dismissed its bill. It could not do this unless it made it appear that the furniture company had either been summoned or voluntarily appeared. This could only be shown by the record. The law is thus stated (2 Enc. PI. & Prac. 368, 364): "In the review of questions on appeal, the appellate court is bound by the record, and matter outside of it cannot be considered. It follows that all errors must be fully presented thereby.” In the 'celebrated case of Underwood v. McVeigh, 23 Grat. 418 et. seq. Christian, Judge, in delivering the opinion of the court, so clearly and concisely states the law bearing upon this question, that I may be pardoned for quoting his expressive language. He says: “The authorities on this point are overwhelming, and the decisions of all the tribunals of every country where an enlightened jurisprudence prevails are all one way. It lies at the very foundation of justice' that every person who is to be affected by an adjudication should have the opportunity of being heard in defense, both in repelling the allegations of fact, and upon the matter of law; and no sentence of any court is entitled to the least respect in any other court, or elsewhere, when it has been pronounced ex f arte, and without opportunity of defense. An examination of both sides of the question, and deliberation between the claims and allegations of the contending parties have been deemed essentially necessary to the proper administration of justice by all nations, and in every stage of social existence. A tribunal which decides without hearing the defendant, or giving him an opportunity to be heard, cannot claim for its decrees the weight of a judicial sentence,”- — citing 1 Smith, Lead. Cas. (Ed. 1872) pt. 2 pp. 1118-1120; also, Bloom v. Burdick, 1 Hill, 130-140, where it is held that: “It is a cardinal principle in the administration of justice that no man can be condemned or devested of Ms rights until he has had the opportunity of being heard; and, if judgment is rendered against him before that is done, the proceeding will be as utterly void as though the court had undertaken to act where the subject-matter was not within its cognizance.” And numerous other authorities are there cited. .

It is the duty of the appellant to present the record to the appellate court, and, if it appears from an examination thereof that necessary any proper parties were not before the circuit court, this Court will reverse and remand the cause, in order that they may be convened. My conclusion, from an examination of the entire record, is that the defendant the Point Pleasant Furniture Company has never been before the circuit court, either by proper service of process or by voluntary appearance. It is true that, after the appeal was taken, process emanating from this Court was'accepted by H. R. Howard, the attorney for said cor-, poration, appointed, under the statute, to accept service for it, the effect of which was to avoid the expense of having it served. When the cause was thus brought into this Court, it could only act upon the record presented and complained of by the appellant; and, in referring to the opinion of this Court, 40 W. Va. 704, (21 S. E. 771), it will be seen that Holt, President, speaking ■ for the Court, says, “Each one of these four defendants who demur is a proper party, and they have no right to complain for other people, who do not themselves complain that such other persons are not proper parties defendant.” When we look to the conclusion of -said opinion, it is perceived that he ■designates what parties are meant when he speaks of the “four defendants who demur,” thus: “From the view* of the case here expressed, it results that the demurrer of the defendants, the Buss Machine Works, the Lane & Bodley Company, the Laidlaw & Dunn Company, and James P. Hayes, to plaintiff’s amended bill, should have been overruled,”- — showing clearly that this Court, in passing upon the demurrer, did not consider and treat it as tbe demurrer of tbe furniture company; and, sucb being tbe case, can we say tbat tbe rights of tbe company; but, while tbat return was upon tbe summons, manner adjudicated or concluded by tbe ruling and decision of this Court upon tbe demurrer of other parties? We have attempted to show that said furniture company was not before tbe circuit court by reason of tbe service of tbe summons on Rankin Wiley, Jr., as president of said furniture company; but while tbat return was upon tbe summons, no alias could issue under tbe statute. So held in tbe case of Gorman v. Steel, 1 W. Va. 1, in which tbe Court, in its opinion (page 14), says: “Tbe -statute (section 8, chapter 170, of tbe Code of 1860) only authorizes tbe clerk to issue an alias where tbe original has not been executed, and not where it has been, as in this case, returned executed, and was therefore functus officio.” This section is identical with section 3, chapter 124, of tbe Code of 1891. It does not anywhere appear tbat an alias was asked for. Section 11, chapter 75, of tbe Code, provides tbat “unless suit to enforce a lien is commenced within six months after the person desiring to avail himself thereof shall have filed bis account in tbe clerk’s office as hereinbefore provided sucb lien shall be discharged; but a suit commenced by any person having sucb lien shall, for tbe purpose of preserving tbe same, inure to tbe benefit of all other persons having a lien under this chapter on tbe same property.” And tbe latter portion of section 10 provides tbat, “Should tbe party bringing tbe suit from any cause fail to establish bis claim, tbe suit shall not for tbat cause be dismissed, but it may be prosecuted by any other party thereto having such lien in tbe same manner as if it bad been commenced by him.”

Was this suit commenced within six months after the plaintiff filed its account in the clerk’s office? • Now, while there is some diversity of opinion upon this question, the weight of authority appears to be that tbe -suit or action is commenced when tbe writ issues. So, in Ross v. Luther, 15 Am. Dec. 341, 4 Cow. 158, it was held that the issuing of the writ is the commencement of the action. The authorities are collated in a note to that case, and we find it there stated that it is undoubtedly the general rule in the United States, except when it is otherwise provided by statute, that an action is deemed commenced, as far as the parties to it are concerned, from the time that the summons or other process is issued and delivered, or put in the course of delivery, to the officer, with a bona fide intent to have it served; and the authorities fro and con are numerously cited. The question, however, has recently come before this Court, and was passed upon in the case of Lambert v. Manufacturing Co. 42 W. Va. 813, (26 S. E. 431), where it was held (Syl., point 2) that: “The process, in this State, to commence a suit, is a writ commanding the officer to whom it is directed to summon the defendant to answer the bill or action, and must be returnable within ninety days after its date to the court, on the first day of the term, or in the clerk’s office to the first Monday in a month, or to some rule day; and if, at the return day of any process, it be not returned, an alias etc., may be issued, etc.” And in point three it is held that the suing out of the writ of summons is the commencement of the action, but the date of the writ is not conclusive, but isfrima facie evidence of the commencement of the action. Now, while it is true this suit was commenced within sis months after the plaintiff’s account on which it claims a mechanic’s lien was filed in the clerk’s office, as we have seen, the process was not served on the furniture company before the return day; and, when the, rule day came to which the process was returnable, no alias was asked for. What, then, was the effect of this failure on the part of the plaintiff to ask for an alias summons? In Lambert v. Manufacuring Co. 42 W. Va. 816, (26 S. E. 431,) Holt, President, delivering the opinion of the court, said: “When oyer of the writ is craved, it becomes part of the record of the suit, for certain purposes, — as, for example, to show when the action was commenced.” This suit was commenced in time, as is stated above, but it was not followed by successive processes; and it could not have been served after the return day, because the officer was commanded to make his return as to the manner of execution to the rule day. In the case of Etheridge v. Woodley, 83 N. C. 11 (a state in whi ch the statute is the same as ours), it was held that: “Where an original summons issued August, 1871, which was not served, and was not in three years followed by appropriate successive processes in order to constitute a continuous single action, the suit cannot be made to relate to the is-guanee of the original process, and so avoid the bar of the statute of limitations, by taking out a second summons neither in form am alias nor purporting to be such. The foregoing rule is not varied by the fact that an order was made by the court for the issuance of an alias, which was neglected or disregarded by the clerk.” The court, in its opinion (page 13), says: “If the failure to sue out the proper and successive processes of an alias and fluries summons works a discontinuance, and prevents the application of the rule of relation to the first, the statutory bar prevails, and defeats the action. The cases cited in the argument for the defendant seem conclusively to settle the question, and to determine that the original summons must be followed by appropriate successive processes, in order to a continuous action referable to the date of its issue,” — citing Fulbright v. Tritt, 19 N. C. 491; Governor v. Welch, 25 N. C. 249; Hanna v. Ingram, 53 N. C. 55. In the last case (an action for slander) the first writ, issued in February, 1857, •returnable to spring term following, was not executed. A term then intervened, and the second writ, in form an alias which was served, was returnable to spring term, 1857. The defamatory words were uttered within six months of the date of the first writ. It was held that the latter writ was the initiation of the action, and it was barred. “This latter, although denominated an ‘•alias’ does not connect itself with the other so as to make one continuous suit, — a term having intervened from which no process issued.” In the same case it was held that, while a general appearance by attorney will dispense with process to bring a defendant into court, such appearance has no retrospective effect, and is not equivalent to service in time to avoid the statute of limitation, when the statute period has elapsed before the entry of appearance. Again, in Hazleton v. Morris, 28 Md. 68, it was held that where a party institutes a suit, and the summons proves ineffectual to bring the defendant into court, and is returned by the sheriff in order to keep the suit alive, the summons must be regularly renewed from term to term, until the defendant is taken, and the omission so to do operates a discontinuance of the action. See, also, Soulden v. Van Rensselaer, 3 Wend. 476, where the court says: “I think all the cases show that the process subsequent to the first must be founded upon it, in order to effect a continuance of the suit.” And in Baskins v. Wilson, 6 Cow. 471, it was held: “To save the statute of limitations on the ground of unexecuted process within the six years, the plaintiff must reply that process was sued out and returned non esi inventus, and connected by continuances with the intermediate process on which the de-fedant was arrested, and this replication must be sustained by evidence. See, also, Koonce v. Pelletier, 115 N. C. 233, (20 S. E. 391), where the court holds that a failure to keep up a chain of summonses issued against a party by means of an alias and joluries summons is a discontinuance as such party, and, if a summons is served after a break in the chain, it is a new action as to him, and the running of the statute of limitations is not arrested until the issuance of the summons so served. In the case at bar no> summons was ever served on a party on whom service would have been proper, and no alias was ever issued; and, under the authorities above quoted, I hold that the suit was discontinued, and, even if an alias could have been properly issued after the rule day at which the process was returnable, more than the six months had elapsed at the date of the February rules, 1893. No alias was, however, then asked for, nor at any time since; and, as we have seen, if one was now issued, the suit would commence from the date it was so issued, and it would not relate back to the commencement of the suit. This was the attitude presented by this case when it came before the circuit court for final action. The plaintiff was seeking to enforce an alleged mechanic’s lien against the furniture company, which could not be done unless that company had been brought before the court by proper process, which had not been done, and it was then too late to serve process upon it. The plaintiff, in its amended bill, had asserted several judgment liens against said furniture company, but they had been obtained since the original bill was filed, by the same attorney who' had served process upon himself as president of said company in the proceeding to recover the judgment, and, even if the character of the suit could have been changed to this extent by amendment, these judgments could not have been sustained and enforced, and my conclusion is that the circuit court committed no error in dismissing the plaintiff’s bill and amended bill. The decree complained of, in my opinion, therefore, should be affirmed.

Reversed.

Case Details

Case Name: United States Blowpipe Co. v. Spencer

Court Name: West Virginia Supreme Court

Date Published: Apr 22, 1899

Citation: 33 S.E. 342

Court Abbreviation: W. Va.