Raub v. Otterback

Citations

• 89 Va. 645
• 16 S.E. 933
• 1893 Va. LEXIS 84

Syllabus

<p>1. Practice at Law—Writ—Rules.—A writ which summoned defendants “ before the-of our circuit court ” is meaningless.</p> <p>A writ returnable at rules “ on the first day of the next term—June term, 1889,” that day being the second Monday in June, whereas there was no rules until the third Monday, was invalid. Code* § 3220.</p> <p>Where defendants are non-residents, and the process is not executed on them in the county where suit is brought, and the writ was not executed at least ten days before the return day, the service was illegal. Code, §§3215, 3220.</p> <p>Where service on one of the defendants, outside of the state, by private individual, is not made fifteen days before the return day, such service is not only not equivalent to order of publication, but is illegal.</p> <p>Where the affidavit of service outside the state by private individual fails to show that the affiant was not interested in the suit, such service was also illegal.</p> <p>Held :</p> <p>In each of the above cases the writ and service are quashable.</p> <p>2. Idem—Scire facias—Personal judgment.—Where a writ of scire facias to revive a decree describes a judgment, and there is no demand for an attachment against property, and no indication that the defendants have property in the state, and the writ has only been served outside the state by private individual (such service being equivalent only to an order of publication)—</p> <p>Held :</p> <p>Such will not warrant a personal judgment.</p> <p>3. Jurisdiction—Service—Appearance.—Courts cannot acquire, jurisdiction over a party without personal service of process against him, or appearance by him in person or by his authorized attorney; and the testimony of defendant is admissible that he never knew nor employed the attorney who appeared for him in the suit, nor ever heard of him until recently.</p> <p>4. Evidence—Sufficiency.—Where the facts, as well as the law, are submitted to the court, its finding as to the weight and sufficiency of the e