Mahany v. Kephart

Citations

• 15 W. Va. 609
• 1879 W. Va. LEXIS 49

Syllabus

<p>Tbe object of service of process is to bring tbe party into court. A judgment by default -with process badly executed -would not be legal.</p> <p>2. By appearance to tbe action in any case, for any other purpose tban to take advantage of tbe defective execution, or non-execution, ’ of process a defendant places bimself precisely in tbe situation in which be would be, if process were executed upon him, and be thereby waives all objection to tbe defective execution or non-execution of process upon him.</p> <p>3. In an action at law against a non-resident, in which an attachment has been sued out, if tbe absent defendant does not appe'ar in tbe ease and has not been served with process, there should not be a personal judgment against him, but tbe attached effects should alone be subjected. But if he does appear to the action, for any other purpose than that above indicated, there may be a personal judgment only against him, or there may be both a personal judgment and an order and judgment éubjecting the attached effects.</p> <p>4. K. was on the 6th day of April, 1878, indebted to S. in the sum of $106.00, and for that sum'made his promissory note to'S. payable one year after date. At that time K. and S. were both citizens and residents of the city of Baltimore in the State of Maryland, and from that time until the final judgment of the court below rendered in this cause continued to be citizens and residents of the same city and State, and not elsewhere. In the month of May in the year 1878, after said promissory note became due and payable, the said S. assigned and transferred the said promissory note to M., the plaintiff, who at the time of the said assignment was and still is a citizen and resident of the State of West Virginia. At the time of the commencement of this suit by M. as assignee of S. in the circuit court of Harrison county, West Virginia, and suing out the attachment therein, the Baltimore & Ohio railroad company ■was indebted to the said defendant,