
    Wynn v. Wyatt’s Adm’x.
    February, 1841,
    Richmond.
    (Absent Brooke and Allen. J.)
    Appellate Practice — Rehearing—Service of Process— Case at Bar.- -After this court had reversed a judgment and remanded case to the court below for further proceeding's there, and certificate of that judgment had been sent by the clerk to the conrt below, a rehearing was, on motion of defendant in error, directed here; whereupon this court revoked the certificate of its former judgment, and directed conrt below to surcease proceedings till further order: and plaintiff in error being now a non-resident, ordered, that service of this order on the counsel who appeared for him on the former argument, should be sufficient service.
    Pleading and Practice — Defective Process — Waiver.— Plaintiff haying sued out a summons against defendant to answer her action, and judgment being entered by default; it does not expressly appear of record, that defendant was a person against whom the summons was the proper process under the statute 1 Rev. Code, ch. 128, § 68, but defendant appeared in term to have proceedings at rules corrected, and did not obj ect to the summons as improper process: Held, the court will presume it was the proper process. But
    Same — Same-Failure to Appear — Quere.—Whether, if defendant had never appeared for any purpose, the summons could be presumed proper process ?
    Same — Summons—Failure to Make Proper Return— Right to Sue Out Attachment. — Upon a summons sued out against defendant to answer plaintiff's action, the officer returns “not found, and copy left &c.” without shewing when the copy was left: Held, upon that return it did not appear that the summons was duly served; and that '*plaintiif should then have sued out alias summons, and not an attachment against defendant's goods to compel appearance, upon the construction of the statute, Ibid. § 61, 68.
    Same — Same—irregular—Special Appearance — Effect. —Plaintilf sues out a summons to defendant to answer her action; the return on the process shews it was not duly served; then au attachment is sued against defendant’s goods to compel appearance, which being returned executed, an office judgment is entered at rules; defendant in term appears and moves that the attachment be quashed as irregular process; the court accordingly quashed the attachment, and sends case back to the rules for further proceedings there: Held, the defendant’s appearance in term to have the irregular process quashed, was not an appearance to the action "which, dispensed with further and proper process.
    In’ assumpsit by Wyatt’s administratrix against Wynn, in the circuit superior court of Dinwiddle, a summons was issued, directed to "the coroner of the county, commanding him to sitmmon the defendant to appear on the return day and answer the plea, dated’ th,e 11th Hay 1835, and returnable the next rule day, namely, the 'first moriday in June. The coroner’s return was, “Not *found', arid a copy delivered át the defendant’s house‘to his son of lawful age,” without stating when the copy was so delivered,- or that -the son was informed of the purport of the process. At' June rules, an -attachment was sued out, directed to the coroner, to attach the defendant’s goods to satisfy, the plaintiff’s demand, returnable to the July rules; which was returned, “executed on a silver candlestick.” At July rules, the plaintiff filed her declaration; and the defendant not appearing to replevy the attached effects, a conditional judgment for the' plaintiff was entered in the office, unless the defendant should appear and plead at thé ’ August rules. The defendant still failing to appear at the August rules, the conditional judgment was then confirmed, and a writ of inquiry-of damages - awarded to be executed at the next term. But at the next term in September 1835, on .the defendant’s motion, the attachment was quashed, the proceedings consequent upon it set aside, 'and,the case sent back to the rules for further proceedings there. .
    The plaintiff, at October rules, sued out an alias summons, returnable the next rule day ;. on which the coroner returned, “not found, and a copy left on the side board in the defendant’s dwelling house on friday the 30th October;” so that the copy of the process was not left ten days before the return ■ daj*-, as the statute in such cases requires. . Yet át November rules,, the defendant not appearing, a con'ditional judgment was entered for the plaiptiff against him, unless he should appear and plead at the next rules; and at Decerpber rules, the defendant still failing, to. appear, the conditional judgment. w.as confirmed, and a writ of inquiry of damages awarded. , The writ of inquiry was executed at April term 1836; the jury assessed the plaintiff’s damages to 277, dollars with interest &c. and the court gave her judgment accordingly. The defendant Wynn applied to,this court for a supersedeas to the judgment,; which was allowed.
    ..The cause was first arg.ued jn December 1839, by Spooner for the .plaintiff in error, and Allison for fhe defendant; and the court then reversed the judgment, .and remanded the case ,t.o the circuit superior court to be there further proceeded in; but in March 1840, on the motion of C. and G. N. Johnson for the defendant in error, the court set aside the judgment of reversal, and directed another argument.. In the mean time, however, the certificate of the judgment of reversal had been sent by the clerk of this court to the circuit superior court, and thus the case was now. in that court. Whereupon this court made the following order — -“On the motion of the defendant in error by her counsel, and .it appearing to the court, that the judgment of reversal rendered in this court in December 1839, was, by a subsequent order made in March last, set aside, for the purpose of having a rehearing of the whole matter in the cause, and it further appearing that before the last recited order was made, the transcript of the judgment aforesaid was improvidently certified to the said circuit superior court, and the cause remitted to the said court, it is ordered, that the same be .recalled and revoked, and it is further ordered, that the said circuit superior court from all further proceedings in the said cause under the judgment aforesaid do áltogether 'surcease, until the further order of this court. And it further appearing to the court, that the plaintiff in error is not an inhabitant of this state, and that at the former hearing he was represented by counsel, it is further ordered, that a service of this order upon his said counsel shall be deemed and taken to be a sufficient service.”
    Upbn the second argument, Spooner, for the plaintiff in error, objected, 1. That it nowise appeared by the record, that the summons was the proper process in the action; in other words, that Wynn, - the defendant below, was a person against whom the statute authorized the proceeding by summons; and‘if the summons was illegal, the defendant was not bound to appear upon it;’ and the proceedings should, therefore, be reversed 'from the beginning. 2. That the proceedings at June rules 1835, upon the return of the first summons, were altogether irregular; for the coroner’s return thereupon did not shew, that the summons was served ten days before the return day, or indeed that it was duly served at all according to the provisions of the statute; and instead of an attachment against the defendant for failing to appear, an alias summons should have been sued out., The attachment was therefore properly quashed. 3. That the subsequent proceedings at the rules were also irregular; because upon the Alias summons then issued, the coroner’s return' shewed distinctly that the process was not served ten days before the return day: the copy •of it was left at the defendant’s dwelling house on the 30th October 1835, and the return day was the next rule day, namely, the first monday in November. Therefore, instead of entering a conditional judgment, for the defendant’s failure to appear at November rules, a pluries summons should have been issued.
    C. and G. N. Johnson, for defendant in error,
    said, 1. That the court must, in* this case, presume, that Wynfi was" a person against whom Wyatt’s administratrix might commence her action by summons; for as he appeared in court to have the proceedings' at the rules corrected, and 'could then have objected to the summons, and had that process quashed if it was irregular, but only objected to the attachment and 'the proceedings thereupon, it was plain enough that the propriety of the summons could not have been contested. Besides, if the summons was not the proper process, the error was in the defendant’s favour; it allowed him a privilege to which he was not entitled. He had no reason, and therefore no right, to complain. '2. They admitted that the proceedings at the riiles on the return of the first summons were irregular; and whether they were so or not, they were set aside by an interlocutory order of the court, from which no appeal lay, and which the defendant in error could not now question here. But, 3. they contended, that Wynn in fact appeared to the action. He appeared in court to have the proceedings at the rules corrected: he had, therefore, full notice of the action. The only purpose of the summons was to give him such notice. After he had appeared in court, and had the case sent back to the rules, there was no necessity to issue a new summons to give him ' notice of *the action which he already had ; and the plaintiff might have proceeded against him at the rules,' as against a defendant who had appeared but failed to plead, and so might have taken judgment against him by nil dicit. The conditional judgment was, indeed, entered by the clerk for the failure of the defendant to appear and plead; but the failure to plead after appearance equally warranted the conditional judgment; and the mistaken entry of the failure to appear could not vitiate the proceeding. This was, in effect, a judgment by nil dicit, and all erro'rs were cured by the statute of jeofails, 1 Rev. Code, ch. 128, l 103, p. 512.
    Spooner,' in reply,
    maintained that Wynn’s appearance in term, to have the proceedings at the rules corrected,' upon the ground of the irregularity of the process, could not be tantamount to regular process, nor could an appearance in term be an' appearalice to the action at' the rules. But’ if the appearance in term could be so regarded, it might have authorised a rtile upon him to plead, but ■ not this office judgment against him for • default of appearance and plea.
    
      
      Court of Appeals — Deeres—Finality of. — In Reid v. Strider, 7 Graft 83 (see also, foot-note), the ca.se of Bank of Va. v. Craig, 6 Heigh 399. where'the court overruled a motion for a rehearing, on the ground, that it could not set aside its decree entered at a former term, whether it was prematurely decided, or whether it was obj ectlonable on the merits or not, was approved. The court further said the decision is not in conflict with Wynn v. Wyatt, 11 Leigh 584. It is true in this case a judgment of this court of one term was set aside at its next and a rehearing directed; but as is suggested by the reporter the motion was made at the previous term and held under advisement. See also, citing the principal case on this question, Hall v. Bank, 15 W. Va. 330. See Glass v. Baker, 6 Munf. 212.
    
    
      
      Pleading and Practice Detective Process — Waiver. —For the proposition that, where the defendant appears and pleads to the action he waives defects in the summons and return, the principal case is cited and approved in Mahany v. Kephart, 15 W. Va. 618; foot-note to Hickam v. Larkey, 6 Gratt. 210. See also, Lockridge v. Lockridge. 1 Va. Dec. 61; Pulliam v. Aler, 15 Gratt. 54, and note.
      
    
    
      
      Same — Same—Special Appearance. — It is well settled that an appearance on a motion to quash an attachment, because of irregular execution of process is not an appearance to the action whereby its alleged defects are waived. Petty v. Frick Co., 86 Va. 503, 10 S. E. Rep. 886, citing Daniel on Attachments, sec. 183; Wynn v. Wyatt, 11 Leigh 584; Harkness v. Hyde, 98 U. S. 476. See also, citing the principal case for this proposition, Pulliam v. Aler, 15 Gratt. 62; Hickam v. Larkey, 6 Gratt. 212; foot-note to Harvey v. Skipwlth, 16 Gratt. 410; Chapman v. Maitland, 23 W. Va. 846.
      Same — Same—Effect.- -In Capehart v. Cunningham, 12 W. Va. 758, it is said: “Under the principles laid down in Wynn v. Wyatt. 11 Leigh 584. the defendant was under no obligation to appear to the action, since process was not served according to law: and the entering of office judgment at rules, and directing the writ enquiry against him by the clerk, upon the supposed default of appearance, were without warrant, and were therefore clerical errors.’’
      See also, citing the principal case, Fowler v. Lewis, 36 W. Va. 126, 14 S. E. Rep. 451.
    
    
      
      It did not appear by tbe record, why tbe plaintiff proceeded-by summons instead of suing out a capias ad respondendum, or why tbe process was directed to the coroner Instead of tbe sheriff. But the reason no doubt was, that the defendant was the sheriff. The coroner was, therefore, the proper officer to serve the process, by the statute 1 Rev. Code, ch. 81, p. 292-3. And by another statute, Id. ch. 128, § 68, p. 606, it is provided, that “in all actions or suits which may be commenced against the governor of the commonwealth, any member of the privy council, any of the judges of the superior courts, or the sheriff of any county during.his continuance in office, instead of the ordinary process, a summons shall be directed to the sheriff, or other proper officer, reciting the cause of action, and commanding him to summon such defendant to appear and answer the same on the proper return day; and if such defendant, being summoned, or after a copy shall be left at his usual place of abode, ten days before the return day, shall not appear.to answer the .same, the court shall proceed against such defendant in the same manner as if he had been taken upon a capias ad respondendum. — Note in Original Edition.
    
    
      
       The rules are held in the clerk’s office on the first Monday in every month; .1 Rev. Code, ch. 128, § 69. — Note in Original Edition.
    
    
      
      The plaintiff, apparently, considered the coroner’s return as simply a return of non est inventus, and therefore sued out the attachment against the defendant’s goods to compel an appearance, instead of an alias summons, supposing she had the option to do so under the statute 1 Rev. Code, ch. 128, § 61. But a return of non est inventus is not a due return of a summons of this kind; for if the defendant cannot be found, the proper service of such process is to leave a copy at the defendant’s dwelling ten days before the return day. Id. § 68, which see in the preceding note. — Note, in Originlal Edition.
    
    
      
      *Tbe reporter supposes, that though the rehearing was not allowed till March 1840, the motion for it had been made at the previous term, and held under advisement. — Note in Original Edition. ,
    
    
      
      These two points Rad occurred in another case, Jeter v. Hyde, which was heard before four judges of this court, who were equally divided in opinion, and so the judgment there was affirmed. Ih that case, Tuo.KEK, P.', said — "If the defendant was a private individual, it was not competent to sue him by summons, and he could not be in default for failing to appear upon illegal process. The ’ judgment being by default, the process is part of the record; and as it does not appear, that the' defendant was an officer who must be sued by summons,'we cannot' presume him to have been so; and if' not, then he •was not bound to appear. But suppose we may presume him to have been a privileged person within the statute, then the service of the process ten days before the return day ought to have appeared; else, he was in no default. But this does not appear. Therefore, the judgment is erroneous.” But it did not appear in that case (as it did in this)'that the defendant had appeared in the cause, in.any way or for any purpose. — Noté in Original Edition.
    
   STANARD, J.

I think the objection, that it does not expressly -appear by the record that' Wynn was a person against whom it Was proper to commence the action by summons, is of no avail. The substitution of the summons instead' of the ordinary process of capias, is a privilege given by statute to certain officers, when they are sued. If a defendant be not strictly entitled to the privilege, no ■ wrong can be done him by conceding it to him, but rather a favour. A defendant'.not entitled to the privilege might probably object to the extension of it to him, and by declining it, have' the process set aside for irregularity : ' but if he suffers the case to proceed upon the summons, he must be considered as admitting that he' is a person liable to be sued by su'ch process, or if not, as Acquiescing in the privilege it concedes *to him. In either view, the objection to the process ought not to be regarded as just cause to impeach the judgment rendered upon it. Besides, in this case,' Wynn, the defendant below, having expressly objected to 'the regularity of the process of attachment, without making any objection to the summons, the implication is inevitable, either that he was a person against whom the summons was the proper process, or if he was not, that he waived objection on that head.

The award of the attachment on1 the return made upon the first summons, ánd the proceedings at the rules upon the return of the attachment, were confessedly irregular; nor is it to be doubted, that the court was right in quashing the attachment, setting aside the proceedings consequent upon it, and sending the cause back to the rules for further proceedings.

In the subsequent proceedings at the rules, an alias summons was issued, the return upon which shewed, clearly, that the process was not duly executed, and yet an office judgment was entered against the defendant for failing to appear and plead, and a writ of inquiry of damages was awarded. The writ of inquiry was executed at the ensuing term. There could be no default of appearance, unless the summons was returned duly served. The clerk, I presume, through mistake, supposed that the return upon the summons shewed that it was duly served, and entered the office judgment, and the award of the writ of inquiry, in consequence of that mistake. But as the summons was not duly served, there was no warrant for entering the office judgment and awarding the writ of inquiry; and those proceedings are erroneous, if there be no other foundation for them than the supposed default of appearance at the rules.

It has, however, been earnestly insisted, that Wynn’s appearance in term, to have the attachment quashed and the proceedings consequent upon it set aside, was *an unqualified appearance to the action, which superseded the necessity of other process; and that when the case returned to the rules, the plaintiff below, without further process, was entitled to judgment for the defendant’s failure to plead. It might be a sufficient answer to say, 1. that, if the defendant’s appearance in term to have the previous proceedings at the rules corrected, dispensed with the necessity of further process, the plaintiff, by suing out the new process, waived the benefit of that dispensation; and 2. that the judgment entered at the rules was not a judgment for the defendant’s failure to plead after his appearance, but for his failure to appear after process served. But, apart from these considerations, was the defendant’s appearance in term for such a purpose, and appearance to the action, which dispensed with further process, and subjected him to a judgment by nil dicit, and to the consequences of such a judgment? It was not so understood by the plaintiff, by the clerk, by the defendant, or by the court: not by the plaintiff, for upon the return of her case to the rules, she sued out new process: not by the clerk, for he founded the subsequent proceedings at rules upon the return of the alias summons, under an erroneous opinion that the return shewed due service of that process: not by the defendant, else he would hardly have let judgment pass by nil dicit, and a writ of inquiry be executed, whereby any claim which the plaintiff might have setup, however inconsistent with that mentioned in the process, might have been conclusively charged upon him: not by the court, for it set aside the previous proceedings, because the attachment was irregular process, and when, after quashing the attachment, it sent the case back to the rules for further proceedings, the further proceedings plainly indicated, were such as the plaintiff o->ght to have taken instead of suing out the attachment; that is, as the first summons was not duly served, the issuing of an alias. *The argument then is, that the defendant’s appearance in term, and motion to quash the attachment, though not so intended by him, nor so understood by the plaintiff, or by the clerk, or by the court, was, proprio vigore and necessarily, an unconditional appearance to the action which dispensed with further process. The proposition is not sustained by any principle or analogy. It is of common occurrence, that a motion for award of execution on a forthcoming bond, is resisted on the ground that due notice of the motion has not been given; yet, in my experience, it has never even been pretended, that such an appearance dispenses with due notice of the motion, to be made at a subsequent term: but if the argument for the defendant in error here were well founded, then in every such case, the court would treat the appearance to resist award of execution for want of due notice of the motion, as dispensing with further notice, at least in respect to a motion to be after-wards made; and when the actual notice was found defective, though execution might not be presently awarded upon it, the motion would yet be docketed as one to be afterwards made, as upon notice dispensed with by the party’s appearance. The argument presents the singular dilemma, that a party cannot free himself from the present or past effect of erroneous process, without forfeiting his right to exemption from judgment until proper process shall be sued and duly served upon him. It would subject him to judgment without any future regular process, as the consequence of his objecting the nullity and irregularity of past process.

My opinion is, that the appearance of the defendant in term, and his motion to quash the attachment irregularly issued, and to set aside the proceedings at rules founded upon it, was not an appearance to the action, dispensing with further and proper process; that the award of the alias summons was proper *and necessary; and that the proceedings on that subsequent process cannot be sustained, since, confessedly, it was not duly served,

CABEEE, J., concurred.

TUCKER, P.

It is conceded, that the first proceedings were irregular, and that the office judgment which had been entered at September term 1835, was properly set aside. The plaintiff then sued out a new summons, but that never was- duly served; and yet she proceeded against the defendant for not appearing, and took a common order against him by default for want of an appearance. This was wrong, because the defendant was under no obligation to appear, since the process was not served in due time according to law. The common order then being wrong, the office judgment founded upon it was also erroneous, as were also the subsequent proceedings. But it is now contended, that the motion to quash the attachment and send the cause to the rules, was an appearance. I think not, for the reasons given by judge Stan-ard. But if it was, the plaintiff waived her first process and the proceedings under it, 'when she took out the second process; and moreover, if there was an appearance, there could have been no common order for want of one, but a rule should have been given to plea. In every aspect of the case, then, the proceedings are erroneous and the judgment must be reversed.

The proceedings up to the return of the alias summons must be set aside; and the cause remanded to the circuit superior court, to be sent back to the rules, where the plaintiff may sue out a pluries summons, if she shall think proper so to do.

Judgment reversed.  