Smith v. Chilton

Citations

• 77 Va. 535
• 1883 Va. LEXIS 87

Syllabus

<p>1. Attachments in Equity-Service out of the state.-Under Code 1873, ch. 148, g 27, defendants in foreign attachment may appear pending the suit, tender security for costs and have it reheard. The exception of a defendant served with a copy of the attachment, or with process in the suit, does not refer to a service thereof outside the proceedings in the suit or outside the state. And such service can have no greater effect than an order of publication duly posted and published. Vide Anderson v. Johnson, 32 Gratt. 558. This rule applies to acknowledgments of such services made outside the state.</p> <p>2. Idem-Idem-Case at bar.-In 1878, C. sued out foreign attachments against S. & W., non-residents, and L., home defendant. The original summons was served on L., and as to S. & W., was returned “ S. & W. non-residents.” After the return day another summons was returned endorsed, “ hereby we acknowledge legal service of the within,” which acknowledgment was made in the District of Columbia. In 1879, sale of the attached effects was decreed. In 1880, before the decree was executed, S. & W. appeared and petitioned that the cause be reheard. The circuit court dismissed the petitions.</p> <p>Held:</p> <p>1. The acknowledgment by S. & W. of legal service within the District of Columbia, must be treated as equivalent to an order of publication duly posted and published, and no more.</p> <p>2. Such acknowledgment did not give the court jurisdiction over the persons of the defendants so as to entitle it to render personal decrees against them, but it had the effect of substituted service'under Code 1873, ch. 166, § 13, and brought these causes within the purview of § 27, ch. 148, Code 1873, and entitled the 'defendants at any time within five years from the date of the decree to have the cause reheard.</p> <p>3. The acknowledgment of the service more than sixty days before the date of the decrees complained of, does not militate against the defendants’ right to have the cause