CHARLESTON.

#### Damron *v.*Williamson Construction & Engineering Co.

(No. 6594)

Submitted April 29, 1930.

Decided May 6, 1930.

*123*Molt & Holt*and *William B. Hogg,*for plaintiff in error.

*James Damron,*for defendant in error.

Maxwell, Judge :

On the 17th day of March, 1925, the Ira Webb Construction Company, a corporation, sold to the Williamson Construction & Engineering Company, a corporation, certain road building materials, equipment, and machinery, and assigned certain contracts, for the sum of $29,600. After certain portions of the said purchase price had been paid and discharged, the said Ira Webb Construction Company was adjudged a bankrupt and B. L. Damron, plaintiff herein, was constituted trustee of the estate of the bankrupt. Thereafter the said trustee, claiming that there was a substantial balance due from the Williamson Company to the Webb Company on the purchase money aforesaid, instituted this action, a proceeding by notice of motion for judgment, against the Williamson Company. The defendant took the position that the Webb Construction Company had failed to deliver to the purchaser all of the property which was included in. the sale and purchase aforesaid, and therefore that the defendant was entitled to a rebate against the Webb Company or its trustee in bankruptcy.

The notice of motion for judgment was returnable the 15th day of November, 1926. Plaintiff’s counsel did not appear in court on said date to prosecute said motion, but did appear' for that purpose on the 17th day of the same month. The defendant thereupon appeared specially and moved the court to quash the said notice and the return of service thereon, which motions being overruled by the court, the defendant thereupon filed its counter affidavit and entered its plea of *124nil debet, and the said action was continued generally. No further proceedings were had in said action until the following November, when the Williamson Construction & Engineering Company filed in open court a bill in chancery against the said Damron, trustee, and others, alleging that the account between the Williamson Company on the one hand, and the Ira Webb Company and its trustee in bankruptcy on the other hand, were extensive and complicated, and prayed that a further prosecution of the said action at law might be enjoined and that a reference be had in the said chancery cause to a commissioner in chancery for the purpose of settling the accounts between the parties. The court declined to entertain the said bill in chancery as such and ordered the same be filed and .treated as an affidavit in said action at law in support of the motion of the Williamson Company for reference to a commissioner in chancery. Thereupon the court referred the said action at law to a commissioner in chancery for the purpose of taking, stating, and reporting an account between the parties. In due time the commissioner completed and filed his report wherein he found that the Williamson Company had in fact overpaid the Webb Company in the amount of $1,619.81, but did not allow a recovery in favor of the Williamson Company against the trustee in bankruptcy of the Webb Company for said amount or any other amount. At a later time, both the trustee in bankruptcy and the defendant excepted to the said report of the commissioner in chancery. The case came on to be heard on its merits before the cpurt in lieu of a jury, and the court found for the plaintiff and against the Williamson Construction & Engineering Company and assessed the damages at $3,551.64, and entered judgment accordingly. To that judgment the defendant prosecutes this writ of error.

To recur now to certain procedural matters: On the 17th day of November, 1926, defendant appeared specially and moved to quash the notice and the return of service thereof : First, because the plaintiff had not appeared and prosecuted its notice of motion on the 15th day of November, 1926, ■the return day thereof, and had not caused its said notice *125to be docketed on that date; and, second, on tbe ground of tbe insufficiency of tbe return. Tbe said notice was served on tbe defendant on tbe 15tb day of October, 1926, and was docketed in tbe office of tbe clerk of tbe circuit court of Mingo county on tbe 18tb day of October, 1926. Under tbe provisions of section 6, chapter 121, of tbe Code, as amended by chapter 39 of tbe Acts of tbe Legislature of 1929, a notice of motion for judgment need not be docketed on its return day. Tbe second ground of tbe motion which was made under tbe special appearance is predicated on tbe fact that although tbe suit was brought in Mingo county, being tbe county wherein tbe cause of action arose, tbe notice was served on tbe defendant in Taylor county, W. Ya. It seems that subsequent to the above-mentioned transaction between tbe Webb Construction Company and the defendant the defendant transferred its operations from Mingo county to Taylor county. The return is challenged because there is no recital therein that tbe secretary of tbe corporation, being the official upon whom service was bad, resided in Taylor county. It is tbe personal view of tbe writer of this opinion that under tbe provisions of section 2, chapter 124, of tbe Code, it is not necessary, under circumstances such as exist in this case, for tbe return of service upon an officer of a corporation to recite that tbe officer, resided at tbe time of tbe service in tbe county wherein tbe service was made. But however that may be, it is clear that tbe defendant’s active defense of tbe suit, after tbe motions which were made under tbe special appearance bad been overruled, was such as to constitute a waiver of the points raised under tbe special appearance. Where a defendant enters a general issue plea and goes to trial on tbe merits of tbe case, be is deemed to have abandoned tbe objections which be made under bis special appearance. See numerous cases cited in Miebie’s Digest of Virginia and West Virginia Reports, 1929, vol. 1, p. 586 et seq.

Now, as to tbe merits of .the ease, we find that on an issue of fact the commissioner in chancery and tbe trial court did not agree. Upon exceptions to tbe commissioner’s report and upon a full hearing of the-whole case, tbe court made a finding *126of fact at variance with the finding of the commissioner. On an issue of fact a trial court, if dissatisfied with a finding of one of its commissioners in chancery, may disregard the finding of the commissioner and make its own finding. If the rule were otherwise, we would have the anomalous situation of a mere arm or instrumentality of the court being greater and more powerful that the court itself. And upon review of such case, where the trial court has made its own finding, in disregard of the finding of its commissioner, the appellate court will follow the finding of the trial court unless such finding is plainly at variance with a preponderance of the evidence. In the case of *State*v. *King,*64 W. Va. 546, 63 S. E. 468, 469, the rule is thus stated in point 7 of the syllabus : ‘ ‘ The finding of a commissioner in chancery on a question of fact has not the force of the verdict of a jury in a law case nor on an issue out of chancery. Though entitled- to peculiar weight, the chancellor, if dissatisfied with it, may set it aside on exception and adopt his conclusion as to what the evidence proves; and on appeal the finding of the commissioner will be.regarded merely as a circumstance of more or less weight to be considered with the evidence in testing the correctness of the finding of the court.”

The issues of fact in this case involve many items. No practical purpose would be subserved by a detailed discussion thereof. It is sufficient to say that in our opinion the finding of the trial court on these numerous controversial matters should be sustained. We therefore affirm the judgment.

*Affirmed.*