Builders Supply Company of Hopewell, Inc. v. Piedmont Lumber Co.
Builders Supply Company of Hopewell, Inc. v. Piedmont Lumber Co.
Opinion of the Court
delivered the opinion of the court.
These two cases, present precisely similar questions, and by stipulation of counsel have been argued together. The Piedmont Lumber Company, Inc., and the Peerless Lumber Company, Inc. (hereinafter called the plaintiffs), instituted separate actions against the Builders Supply Company of Hopewell, Inc. (hereinafter called the defendant), in the Corporation Court of Hopewell, Va., which resulted in separate judgments against the defendant.
No authorities precisely in point have been cited by counsel, and the question appears to be one of first impression in this State. As to its proper determination, however, we have no doubt. The severing of the territory from the county of Prince George, just as it changed the citizenship of every natural person then domiciled within the area thus severed, so it also changed the location of the principal
The question, then, is one of fact—that is, whether the office of the defendant company was located at the time of
There is another point in the cases requiring attention. The defendant moved to quash the returns of the officer upon the writs. These returns were in these words: “Executed on the 12th day of August, 1916, by delivering within the city of Hopewell, Virginia, a true copy of the within summons to W. I. Gilkeson, clerk of the Corporation Court of the city of Hopewell, in person, none of the officers or directors of Builders Supply Company of Hopewell, Inc., being residents of the city of Hopewell or the county of Prince George and no person having been designated, upon whom service of process may be made in accordance with the provisions of section 14, chapter 1 of the act concerning corporations.”
It will be noted that the process was served upon the clerk of the Corporation Court of the city of Hopewell, and this by authority of section 14 of chapter 1 of the act concerning corporations (Acts 1902-04, c. 442 [Code 1904, § 1105a, subd. 14] as amended by Acts 1910, c. 35). This section requires every corporation of this class, where all of its officers and directors are non-residents of the city or county
These returns are defective, in that they fail to show that the principal office of the defendant was in the city of Hopewell. The reference in the returns to the county of Prince George may be treated as surplusage, because the sergeant of the city of Hopewell had no jurisdiction in the county; but the returns should affirmatively show that the principal office- of the company sued is within the county or city in which the action is instituted, for the rule is that where constructive service of process is allowed in lieu of personal service, the terms of the statute by which it is authorized and prescribed must be strictly followed, or the service will be invalid and the judgment rendered thereon by default void. Staunton Perpetual Bldg. & L. Co. v. Haden, Trustee, et al., 92 Va. 201, 23 S. E. 285; 1 Va. L. Reg. 655, with note thereto by Judge E. C. Burks.
The court, in this case, should have required the sergeant of the city of Hopewell to amend his returns so as to show whether or not the principal office of the defendant company was within the area of the corporate limits of the city of Hopewell. It is established, however, in this State, that it is not too late now to make such amendments, and if the returns shall be amended so as to show the jurisdictional fact required, the cases should be affirmed. Goolsby v. St. John, 25 Gratt. (66 Va.) 146 ; Stotz v. Collins, 83 Va. 423; 2 S. E. 737; Shenandoah Valley R. Co. v. Ashby’s Trustee, 86 Va. 232, 9 S. E. 1003, 19 Am. St. Rep. 898; Finney v. Clark, 86 Va. 354, 10 S. E. 569; Commercial, etc., Co. v.
The cases will, therefore, be remanded with leave to have the returns amended in accordance with the facts, within sixty days from this date.
Remanded.
Reference
- Full Case Name
- Builders Supply Company of Hopewell, Inc. v. Piedmont Lumber Company, Inc. Builders Supply Company of Hopewell, Inc. v. Peerless Lumber Company, Inc.
- Cited By
- 4 cases
- Status
- Published
- Syllabus
- 1. Municipal Corporations—Jurisdiction of Corporation Court—. Place of Business of Corporation.—In the certificate of incorporation of the defendant company, the place wherein its principal office was to be located was designated as “Hopewell, Prince George county, Virginia.” Afterwards the community known as Hopewell was severed from the county and incorporated as the city of Hopewell. Held: That, the severing of the territory from the county of Prince George, just as it changed the citizenship of every natural person then domiciled within the area thus severed, so it also changed the location of the principal offices of all corporations which were located within that area. And if defendant corporation’s principal office was located in the territory incorporated as the city of Hopewell, the Corporation Court of that city had jurisdiction of an action against it. 2. Abatement and Revival—Presumptions and Burden of Proof.— Upon a plea to the jurisdiction, or in abatement, just as is the 'case with other affirmative pleas, the burden of proof is, as a general rule, on the defendant: 3. Service of Process—Corporations.—Section 14 of chapter 1 of the act concerning corporations (Acts 1902-04, chapter 442 [Code 1904, section 1105-a, subdivision 14] as amended by ‘ Acts 1910, chapter 35) requires every corporation of a certain class, where all of its officers and directors are nonresidents of the city or county where its principal office is located, to appoint an attorney in fact residing in such city or county, upon whom all legal process against the corporation may be served, and provides that if the company fails to appoint such attorney in fact, then all legal process against the corporation may be served upon the clerk of the court of such county or city wherein, is located such principal office, having jurisdiction of such action or proceeding. Held: That, under this statute returns of service of process against such corporations upon the clerk should affirmatively show that the principal office of the company sued is within the county or city in- which the action is instituted, for the rule is that where constructive service of process is allowed in lieu of personal service, the terms of the statute by which it is authorized and prescribed must be strictly followed, or the service will be invalid and the judgment rendered thereon by default void. However, returns defective in this respect may be amended to show the jurisdictional fact even after judgment and removal on error to the Supreme Court of Appeals.