Hall v. Ocean Accident & Guarantee Corp.

Riley, President: This is a motion for judgment proceeding instituted in the circuit court of Nicholas County by James E. Hall, administrator of the estate of Lutiaschie Wilkinson, deceased, against The Ocean Accident & Guarantee Corporation, Ltd., oh a policy of public liability insurance. Defendant prosecutes error to a judgment in plaintiff’s favor based upon a jury verdict. ' A truck of Belmont Distributors, Inc. (hereinafter called Belmont), driven by an employee, Frank Wardell, struck and killed Lutiaschie Wilkinson in Nicholas County. An action was brought in that county by J. É. Hall, as her administrator, against Belmont and Warded to recover damages for her alleged wrongful death. A summons in that action, issued Tuesday, March 8, 1938, returnable at Rules to be held bn the first Monday in March, was served in Nicholas County on H. E. Hamilton, president of Belmont. This summons was not served oh Warded. A summons styled “alias summons” was' also' issued in that action March 22, directed to the sheriff of Harrison County, returnable at April Rules, ánd was served on Warded in Harrison County March 24. At the trial, Belmont and Warded'each appeared specially, and severally craved oyer of the two summonses and moved to quash them; Belmont because the summons served oh *190 it “was issued on Tuesday, the 8th day of March, 1938, returnable to the first Monday (March 7, 1938,) in March, 1938, and that therefore said summons is void”; Wardell because the summons of March 22 was served on him in Harrison County “and that the Circuit Court of Nicholas County has no jurisdiction upon said defendant.” Their several demurrers and motions were overruled and they excepted. Then they pleaded the general issue, the case was tried, and a verdict and judgment against them of $10,000.00 resulted. The judgment became final. An execution directed to the sheriff of Nicholas County was returned “No property found.” Thereupon, this proceeding, by notice of motion for judgment, was brought by Hall in Nicholas County against The Ocean Accident & Guarantee Corporation, Ltd. (hereinafter called defendant), which had issued to Belmont an insurance policy agreeing to pay on behalf of the “insured” — and by express definition in the policy the word included Wardell— whatever sum the insured should become obligated by law to pay for damages by reason of personal injuries inflicted. Hall recovered a judgment, and defendant prosecutes this writ of error. Counsel for defendant question the right of Hall to proceed here by notice of motion for judgment. The agreement of the insurer to pay lawful damages on behalf of the insured constituted a contract for the benefit of the person injured. We recognized that such a contract could be enforced by notice of motion in Hawkins v. Glen Falls Ins. Co., 114 W. Va. 287, 171 S. E. 645. The main contention advanced on behalf of defendant is that the judgment against Belmont and Wardell, upon which the instant proceeding is based, was void. Code, 56-3-11 provides that process “may be executed on or before the return day thereof.” The summons on Belmont, issued after and served after the return day, was a nullity; and since this appears on the summons itself, Belmont’s motion to quash should have been sustained. So we are of opinion that the contention is well taken as to the judgment against Belmont. *191 • Counsel say as to Wardell, first, that the' summons on Belmont being void, the alias summons on Wardell would also be void citing Code, 56-3-21 and Gorman v. Steed, 1 W. Va. 1, 14; and, second, that the service of process on Wardell in Harrison County “raises at least a strong presumption” that he resided there. The statute cited provides that an alias process may issue if, at the return day of an original process, the latter be returned unexecuted. The statute now is the same as the Virginia Code of 1860, Ch. 170, Sec. 3. Referring thereto, this Court in the case cited (p. 14), said that as an alias was “but the continuation of the original, and dependent upon it, it must stand or fall with it * *”. No authority was referred to and the saying could not have been meant to be taken literally. If so, no mistake or error in an original process could ever be corrected. The essential reason for employing a second process is because the original has failed its purpose. It matters not whether that failure is due to defective form or service. “An alias summons is issued when the original summons has not produced its effect. * * * It is employed in cases where the original summons is defective in form or manner of service, and cannot be held to have performed its function. An order of record that an alias summons be issued' necessarily must constitute an abandonment of the original service. * * * When issued and served, the second writ supersedes the first and defects in the first cannot be pleaded in abatement of the second.” Pacific Mutual Life Ins. Co. v. Mansur, 136 Mo. App. 726, 118 S. W. 1193. Moreover, a court has inherent power, in addition to that named in the statute; to have such further process issued as may be requisite to bring the parties properly before it. United States Blowpipe Co. v. Spencer, 46 W. Va. 590, 594, 33 S. E. 342. We are therefore of opinion that the invalidity of the first process did not affect the second, and further that since the first was a nullity, the second may be treated as an original process. Dunaway v. Lord, 114 W. Va. 671, 173 S. E. 568. Code, 56-4-30 makes a- sharp distinction in the practice regarding process which is merely defective, and process *192 which is void. Under that statute, a defendant can take advantage of a defect in the writ or return only by plea in abatement; but the statute preserves his common law right to move to quash a void process. Upon the motion, however, the court will consider only the record itself. Ru ffner v. Cunard Steamship Co., 94 W. Va. 211, 217-18, 118 S. E. 157, 30 A. L. R. 262n, 279n; Looney v. West Virginia Hardwood Co., 113 W. Va. 385, 168 S. E. 138. When Wardell made his motion to quash, the record consisted of the declaration and the first and second summonses. The declaration pleaded a cause of action arising in Nicholas County. Upon the declaration, venue lay in that county. Neither the declaration nor the summonses mentioned the residence of Wardell. Although he testified in the instant proceeding that he resided in Harrison County at the time the alias summons was served upon him, such fact cannot now be considered, because it was not in the record when his motion to quash was made.' So the motion depended upon his one proposition, that because the summons showed service on him in Harrison County, the service was fundamentally void. While our statute Code, 56-1-1, says an action “may” be brought in the county where the defendant resides, the action must be brought there even where the cause of action arises in a different county, unless the defendant is sued and served with process therein, as provided by Code, 56-1-2. We cannot concede that service of the summons on Wardell in Harrison County raised a presumption that he resided there and not in Nicholas County. We will concede that this service might have raised some question in the mind of the court as to his residence in Nicholas County, but that concession would not sustain Wardell. It is not enough that on his motion thé regularity or even the validity of the process was questionable; its absolute facial invalidity must have been apparent. Code, 56-3-5 authorizes process to be directed to the sheriff of any county; situations sometimes' arise where it is expedient to havé process served on a defendant outside the county of his residence. Consequently, we cannot view this summons as void — as *193 no process at all — because of what appeared on its face; and unless so viewed, the motion to quash was futile. Furthermore, the right of a defendant touching the county of trial is not primarily jurisdictional, but is a personal privilege which may be waived. Moore v. Norfolk & W. Ry. Co., 124 Va. 628, 634, 98 S. E. 635; 67 C. J. Venue, sec. 212. Where the court has jurisdiction of the subject matter, the failure of a defendant to claim the privilege in the próper manner implies a waiver. 22 Ency. Pl. and Pr. 815-16; 25 Stand. Ency. of Proc. 912. The proper manner of claiming the privilege here would have been by plea in abatement (under 56-4-30) alleging the residence of Wardell in Harrison County. But instead, he moved to quash, excepted to the adverse rulings of the court on the motion to quash, pleaded the general issue, went to trial, and sought no writ of error to the judgment against him. The essential purpose of a summons is to bring a defendant into court. Wardell not only came into court because of the summons, but remained, and had his full day in court. If his motion to quash the process against him had been effective in the first instance, his exception to the trial court’s rulings would not have been waived by this general appearance. Fisher, Sons & Co. v. Crowley, 57 W. Va. 312, 50 S. E. 422, 4 Ann. Cas. 282. But such is not the case here, and we cannot see that he was in fact prejudiced by the manner in which the process was served on him. For the reasons hereinbefore stated we are of opinion that the judgment against him was valid. Counsel finally protest the allowance of interest on the judgment in the first case, in the judgment of the instant case. Code, 56-6-31 warrants the allowance of interest upon the first judgment. • - The judgment against defendant is affirmed. Affirmed.