Fisher & Bro. v. March

Citations

• 26 Va. 765
• 26 Gratt. 765

Syllabus

<p>1. F recovers judgment against M, on which execution is issued, but is stayed by order of plaintiffs’ attorney. It appears, however, that some shares of stock were sold by the officer to satisfy the judgment; but there is no return of such sale by the officer. It appearing further, that the stocks did not sell for enough to discharge the judgment, F may have another execution, or bring another action for the balance still due.</p> <p>2. In an attachment suit by F against M, there is no service of process on M, or order of publication; but there is a declaration in assumpsit with a special and general count; and counsel appears for him and pleads, and the cause is tried by a jury and judgment for F. The record affords at least prima facie evidence, that the counsel was authorized to appear for M, and defend the action.</p> <p>3. In a suit by attachment, if the plaintiff recovers judgment against the defendant, without his appearance, such judgment will have no effect in another State, as a personal judgment against the debtor. But if the defendant appears and defends himself in person or by attorney, then the judgment will have the same force and effect everywhere, as a judgment recovered in an ordinary suit.</p> <p>4. In such a case the record may show upon its face that the debtor did or did not appear; and if it does, the judgment will have effect accordingly. If the record does not show whether he did or did not appear, the presumption is in favor of the validity of the judgment.</p> <p>5. But in such case, if the record does not state that the debtor did or did not appear, or even if it states that he did appear, in a suit upon this judgment in another state, the defendant may by his pleading and evidence aver and prove the contrary.</p> <p>6. In a foreign attachment in chancery, the affidavit required by the statute may be made by the agent of the plaintiff, and it may be made after the suit is brought.</p> <p>7. If in such affidavit the affiant swears that