Capehart v. Cunningham

Citations

• 12 W. Va. 750
• 1878 W. Va. LEXIS 48

Syllabus

<p>1- When a defendant has not been served with process in the action, and has not appeared to the action, it is error for the clerk to enter office judgment against him for failing to appear and plead, and to award a writ of inquiry of damages; it is also error'under those circumstances for the court to have the damages assessed by the jury, and to enter judgment against the defendant for the damages found by the jury.</p> <p>2. A defendant in such a case has the right under the statute to move the court, after proper notice, to reverse the judgment and correct the proceedings, and upon the court's refusal to do so, then to bring the matter before the Appellate Court by writ of error.</p> <p>3. It is not error for the court to permit the sheriff to amend his return upon a summons even at the hearing of the motion to reverse the judgment, and such amended return relates back to and takes the place of the original return.</p> <p>4. The sheriff made his return in the following language: “ The defendant, Capehart, not being found, and not being at his usual place of abode when in Kanawha county, nor his wife, nor no white member of his family over sixteen years of age found there, I served this writ on the 24th day of August, 1863, by posting an office copy hereof on the front door of his usual place of abode aforesaid, the said house at the time of said service was occupied by D. J. Lewis and his family.” Held:</p> <p>The return is not sufficient to support the judgment, because it failed to show that the summons was served by leaving a copy thereof posted at the front door of the defendant’s usual place of abode at the time of service.</p> <p>5. The meaning of the statute is the usual place of abode eo in-stanti the summons is served.</p>