Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-05-02
COURT DECISIONS.
Notes of Cases Recently Decided,
Which are Of Interest to
Our People.
DIGESTED BY W. B. MARTIN,
Exclusively FOR virginian-Pllot.)

ADKINS v. GLOBE FIRE ms. CO.
Supreme Court of Appeals, West Va
November 80, 1898.
IN SUIT AGAINST ~ CORPORATION
THE RETURN ON THE SUMMONS
SHOWING SERVICE ON ITS At
TORNEY IS BAD, UNLESS TT
SHOW THAT HE Is THE ATTOR-
NEY APPOINTED TO ACCEPT
SERVICE OF PROCESS FOR THE
COMPANY.
ACCEPTANCE OF SERVICE BY THE
ATTORNEY IN SUCH a CASE IS
BAD IL IT IS SIGNED BY HIM IN
DIVIDUALLY AND NOT AS AT
TORNEY.
This was an action of assumpsit upon
policy of fire insurance by Adkins and
Shoemaker against the Globe Fire In
surance Company, The defendant not
appearing in defense. II jury tried the
case. and found n verdict for the plain
lifts, OH which the court entered judy
ment. Afterwards, during the term, the
defendant appeared, and moved for Il
now trial. but the court refused and
the defendant comes to this court for
relief.
The court says:
We now examine the grounds for n
new trial. One is SURPRISE. This is
based OH The claim that The company
had no notice OF the suit. did not know
that such n suit existed until The day of
trial, when, after the case was called
for trial. II telegram was sent from
Charleston TO the agent at Wheeling. in
forming him of the suit and likely this
did not reach the agent until the YER
dict had been rendered, and perhaps
tho Judgment Process was served in
Ohio county upon Aft. Paul, as attor-
ncy in fact and of record for the COM
pany, and he accepted service besides.
Paui makes affidavit that he has no
recollection of service upon him. or of
acceptance by him, and he is sure no
copy was ever given him. The return
OF an officer unon process cannot he so
contradicted. II we recognize this re-
turn. it follows that the alleged sur
prise is no ground for n new trial as a
party must not neglect or forget but
mus; appear and defend. But is the
return good on its face? ] think not.
II says that tho summons was served
by delivering a copy to &if Paul. at
torney III fact and of record for said
Globe Insurance Company" Attorney
In fact for what purpose? To make {.
deed, or sell property, or accept service
OF process? The return does not saw
stiiutionary service. not personal. the
clements 10 make the service good IN
law must appear. The facts making
the substitute Il Droper person for ser
vice under the law must appear. If ne
is president, director. cashier. or mayor,
II must be 50 stated. This return
should have stated that Paul was at
torney appointed by the company To ac-
ccpt service of process. The sheriff
must necessarily hunt and find the
proper 9orson for service and be able
TO state that he is such We cannot
assume therefrom that he was attor-
ncy 10 accept service.
The Code provides that the return
Of service in suits against corporations
must show ION whom" The service was.
This does not mean merely his name.
but his character or relation TO the
company pointed OUT as authorizing
service. an acceptance Is on TIC pro-
cess. reading: Service accepted. sen
temher 6. 1897. All. Paul" Who is he?
We do not know by judicial cos,nizancc
that he is this company's attorney -
accept service. and he does not say so.
This being Il Judgment by default. the
return is as part of the record. and
for its defect the Judgment could. after
the term lie reversed on motion. The
court ought to have given new trial.
Reversed.