Valley Camp Coal Co. v. E. M. Wichert Co.
Valley Camp Coal Co. v. E. M. Wichert Co.
Opinion of the Court
Under section 1, chapter 106, Code, plaintiff instituted a suit in equity in the circuit court of Marshall County to recover from defendant The E. M. Wichert Company, the sum of $1010.51. An attachment was issued on the ground that defendant is a foreign corporation, and was levied on certain property in that county. No personal service was had upon the defendant, but an order of publication was awarded, published and posted. Defendant appeared specially and moved to quash the order of publication, the return thereof, and the affidavit upon which the order was awarded. The motion was overruled, and the questions arising thereon were certified to this court.
“On affidavit that a defendant is not a resident of this state; or that diligence has been used by or on behalf of the plaintiff to ascertain in what county he is, without effect; or that process directed to the officer of the county in which he resides or is, has been twice delivered to such officer more than ten days before the return day, and been returned without being executed; or that the defendant is a corporation, and that no person can be found in the county upon whom the process can be legally served, an order of publication may be entered against such defendant. ’ ’
The affidavit states that “the defendant; E. M. Wichert Company, Pittsburgh, Pa., a corporation, is a non-resident of the State of West Virginia;” but does not state “that no person can be found in Marshall County upon whom the process can be legally served.” Because of this omission, defendant’s counsel insists that it is fatally defective and the order of. publication equally so. Counsel seems to have misinterpreted our recent holding in State v. Young, 94 W. Va. 7, 117 S. E. 688, where we said:
“Under section 11, chapter 124, Code, an order of publication against a natural person may issue in a cause upon the plaintiff filing an affidavit with the clerk that (1) the defendant is not a resident of this state; or (2) that diligence has been used by or on behalf of the plaintiff to ascertain in what county of this state the defendant is, without effect; or (3) that process, directed to the officer of the county in this state in which the defendant resides or is, has been twice delivered to such officer more than ten days before the return day, and been returned without being executed.”
There the question was whether a natural person had been properly summoned by publication. Service on a corporation was not involved. We were careful there to confine
A partial review of the history of our statutes regulating service upon corporations will enable us to inquire into the reasons for the insertion in section 11 of the fourth ground and to see whether that provision at all affects or modifies the first. In the Virginia Code, 1860, section 10, chapter 170, the provision reads:
“On affidavit that (1) a defendant is not a resident of this state, or (2) that diligence has been used by or on behalf of the plaintiff to ascertain in what county or corporation he is, without effect, or (3) that process directed to the officer of the county or corporation in which he resides, or is, has been twice delivered to such officer more than ten days before the return day, and been returned without being executed an order' of publication may be entered against such defendant. And in any suit in equity, where the bill states that the names of any persons interested in the subject to -be divided or disposed of, are unknown, and makes such persons defendants by the general description of parties unknown, on affidavit of the fact that the said names are unknown, an order of publication may be entered against such unknown parties. Any order under this section may be entered either in court or at the rules. In a proceeding by petition, there may be an order of publication in like manner as in a suit in equity. ’ ’
This continued to be the law of this state down to the adoption of our Code of 1868. Some slight but temporary.
But the amendment was not adopted without reason. Prior to its adoption, so far as we can find, there was no way provided for obtaining an order of publication against a resident corporation, unless it be found in the second and third grounds, which are inconvenient and cumbersome. Personal service could only be had by service on some designated or ■chief officer, or by service on an agent and publication of the summons. Code 1860, ch. 170, sec. 7. If all its officers and agents were beyond the state, process could not be served upon them there, nor could an order of publication be awarded against it because of its being a non-resident. Because its officers might migrate to another state, this did not effect a migration of a corporation incorporated in this state. It still remained a resident corporation so far as process from our courts was concerned. Whether an order of publication might issue against it upon either the second or third grounds we need not decide. If it could not, then the amendment was absolutely necessary to enable plaintiff to have an order of publication issue against resident corporation in cases where personal service on its officers or agents could not be had. But if it could be awarded upon either the second or third ground, as already stated, these were inconvenient and cum
We therefore affirm the ruling of the circuit court and it will be so certified.
Ruling affirmed.
Reference
- Full Case Name
- The Valley Camp Coal Company v. The E. M. Wichert Company
- Status
- Published