46 W. Va. 590 | W. Va. | 1899
Lead Opinion
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 every
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
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
Dissenting Opinion
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 de
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,
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
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
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 conclu
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,
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 furni
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
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 par
Reversed.