United States Blowpipe Co. v. Spencer

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 every 592 thing 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 593 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 594 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.