In the main I am in agreement with the dissenting opinion of Judge Fox, but I find no authority in the Reports of this State for the proposition that the truth of an officer's return of service of process may be challenged by plea in abatement, if the defendant alleges he has a just defense to the suit or action.
It is my view, subject to the exceptions hereinafter noted, that in the absence of fraud, collusion or deception on the part of plaintiff, the officer's return of process cannot be controverted by any plea, regardless of the allegations therein contained. The exceptions above referred to are as follows: (1) If the case comes within the narrow exception to the "verity rule" stated in the case of Nuttallburg Smokeless Fuel Co. v.Bank, 89 W. Va. 438, 109 S.E. 766, the return may be challenged; and (2) the facts assumed by the officer in his return of process may be controverted by a proper plea.
The general rules relative to the conclusiveness of an officer's return of service of process are in conflict. Some authorities hold that if the officer's return of service of process is regular on its face, and there is no evidence of fraud, collusion or deception, the return cannot be controverted by the defendant in the same action by plea or otherwise. Other authorities hold that the officer's return of service of process is not conclusive but is only prima facie evidence of proper service. See note 124 Am. St. Rep., page 756et seq., and 42 Am. Jur., Process, Sections 126 and 127.
In our neighboring state of Virginia, the rule that return of service of process by an officer is conclusive has long been accepted and enforced. See Goodall v. Stuart, 2 Hen. M. 105;Smith Rickard v. Triplett Neale, 4 Leigh 590; Preston v.Kindrick (Va.), 27 S.E. 588; Ramsburg v. Kline (Va.),31 S.E. 608; Sutherland v. Peoples Bank (Va.), 69 S.E. 341;Caskie v. Durham (Va.), 147 S.E. 218. Nor can the return be disputed by a plea in abatement. Sutherland v. Peoples Bank,supra. *Page 291
In this jurisdiction, the first discussion of this principle that I have been able to find appears in Hinton v. Ballard,3 W. Va. 582, wherein a defendant offered evidence to disprove the truth of an amended return in two particulars: (1) That the summons was not left at the defendant's usual place of abode, and (2) that it was not explained to the person to whom it was delivered. In the Hinton case, the question considered was whether it was proper for a defect in the return of service of summons to be raised by motion or by a plea in abatement. The Court held: "A defendant can only take advantage of a defective return on a summons by a plea in abatement." The holding just quoted would seem to indicate that any defect in a return of process may be taken advantage of by plea in abatement. The same Judge who wrote the opinion in the Hinton case later holds that on a motion to quash the return of an officer's service of a summons, the truth of the return could not be questioned.Lewis v. Botkin, 4 W. Va. 531.
We have a long line of cases commencing with the case ofBowyer v. Knapp Martin, 15 W. Va. 277, 290, wherein the Court stated the rule, possibly by way of dictum, to the effect that the law was settled that a return made by an officer upon process emanating from the court or its officer by a sworn officer in relation to facts which it was the legal duty of the officer to state is conclusive as between the parties and privies to the suit. It is true that in the Bowyer case the Court had before it the question of return of a notice to take depositions, and it was held therein that the return of the officer on such notice was only prima facie evidence of the truth of the facts stated in the return. It is to be noted that in the Bowyer case the Court made the following statement: "But we do not mean to decide whether under our statute the return of a sheriff upon process may or may not be contradicted by plea in the suit at the proper time. Where the sheriff makes a false return of process, he is liable, of course, to the party injured, who may proceed against him for such false return." *Page 292
The next case in which this question was considered isStewart v. Stewart, 27 W. Va. 167, 178, wherein the Court held: "It has been repeatedly held that a defendant will not even in the same return or suit be permitted to contradict the return of the sheriff upon the summons issued in the cause." In theStewart case the Court again adverts to the Bowyer case, stating that it was not meant to decide whether the return of the sheriff on the return of service of process could be contradicted by a plea in abatement. In Rader v. Adamson, 37 W. Va. 582,16 S.E. 808, this Court restated the principle adverted to in the Bowyer case, and held that the plea in abatement was not available to defendant to contradict the return of service of process made by a sworn officer. McClung v. McWhorter, 47 W. Va. 150, 34 S.E. 740, is to the same effect, wherein Judge Brannon in discussing the "verity rule" said: "It is a long-established rule with us, and based on sound principles and policy. Its reason, drawn from the United States Supreme Court, is ably defended in Preston v. Kindrick * * * refusing relief in equity against a decree by default where relief was asked on the ground of false return." It was further stated that the doctrine of verity did not apply to a notice to take depositions.
The next case in which this Court considered the "verity rule" is Talbott v. Southern Oil Co., 60 W. Va. 423, 426,65 S.E. 1009, wherein Judge Poffenbarger, speaking for the Court said: "No plea or proceeding for the putting in issue such a matter could be more positive, direct and free from embarrassment, by the principles of waiver, than a plea in abatement. If the proof of the facts stated in the return cannot be inquired into upon such a plea, it is impossible to conceive, for any reason, why it would be allowable upon a mere motion." The Court further says in reference to the declarations of the Court in the Bowyer and Stewart cases that it was not meant to decide whether a return of service of process could be contradicted by a plea in abatement, and says in explanation of said declarations: "However, if we could say the ruling in Rader v. Adamson, appears to have been inadvertent, there is much authority to sustain it." In MillingCo. v. Read, 76 W. Va. 557, *Page 293 568, 85 S.E. 726, a return made by a constable of service of process was held to be conclusive, and it was therein stated that the holding was the settled law of this State. The principle was again referred to and approved in Lumber Co. v.Mays, 81 W. Va. 46, 52, 94 S.E. 42.
The law so remained in this State until the opinion of this Court in the Nuttallburg case, wherein this Court defined and approved an exception to the rule as to conclusiveness of an officer's return on service of process in the following language: "Upon a proceeding to vacate a judgment taken by default in a case in which the defendant had no notice of the pendency of the action in any manner or form, the return of the officer endorsed upon the summons is only prima facie evidence of service and may be overthrown by proof of such lack of notice." Also the holding in the Nuttalburg case requires a defendant seeking to set aside a default judgment or decree, to allege and prove that he had a just defense.
Subsequent to the decision in the Nuttallburg case, this Court in applying the "verity rule", as modified by that decision, rigidly adhered to former decisions until the decision of the instant case. See the cases of Stepp v. RoadCommissioner, 108 W. Va. 346, 151 S.E. 180; Transfer StorageCo. v. Jarrett, 110 W. Va. 97, 157 S.E. 46; Looney v. HardwoodCo., 113 W. Va. 385, 168 S.E. 138; Lanham v. Auto Co.,115 W. Va. 415, 176 S.E. 604; Anderson v. Anderson, 121 W. Va. 103,1 S.E.2d 884; Coal Corp. v. Silman, 125 W. Va. 58,22 S.E.2d 873.
Another modification of the verity rule relating to an officer's return of service of process will be found in the holding of this Court in Ruffner v. Steamship Co., 94 W. Va. 211,118 S.E. 157. In that case the officer assumed that the defendant was doing business in the State of West Virginia, and it is strongly intimated in the opinion in that case, that a plea in abatement would be available to dispute such assumption. In Williamson v. Taylor, 96 W. Va. 246,122 S.E. 530, relied on in the majority opinion, the question at issue and challenged by the plea in abatement *Page 294 was the assumed fact defendant's usual place of abode was in Cabell County, West Virginia. Likewise in Crouch v. Crouch,124 W. Va. 331, 20 S.E.2d 169, the officer assumed that the defendant's place of abode was at a certain place.
This Court has drawn a distinction between the physical acts of an officer making a return of service which lie in his own knowledge and the facts assumed by him. Hatfield v. Coal CokeCo., 111 W. Va. 289, 292, 161 S.E. 572. See Higham v. IowaTravelers Assn., 183 F. 485. Again in Lanham v. Auto Co.,supra, this Court emphasized the difference in the following language: "The next case to take note of the pronouncement in the Nuttallburg case was Hatfield v. Coal Coke Co., * * * wherein emphasis is laid on the fact that in the first named case [Nuttallburg] the return 'was not false in the recital of the fact that it had been served upon the individual named, but was untrue in the assumption that he was an officer of the corporation.' " The distinction so made in the Hatfield and Lanham cases is valid, but it is to be noted that in the instant case the return is to the effect that it was served on Hugh Jarvis, president of the defendant corporation, and the verified plea in abatement is signed by "R. Hugh Jarvis", and states that the said R. Hugh Jarvis is president of the defendant corporation. In this case we have an actual dispute of a physical act of the officer in serving process, evidenced by his return, which shows that he served the process upon the person who admittedly is the president of the defendant corporation. In other words, there is no assumed fact disputed by the plea in abatement herein.
Of course, there are exceptions to the general statement of the rule as exemplified in Slingluff v. Gainer, 49 W. Va. 7,37 S.E. 771, wherein the process was served on a person who had the same initials as the person for whom the process was intended. Moreover, the service of original process by a credible person is not conclusive. Peck v. Chambers, 44 W. Va. 270,28 S.E. 706; Lynch v. West, 63 W. Va. 571, 60 S.E. 606. *Page 295
We are here confronted with the single question: May a fact stated in a return of service of process about which the officer has first hand knowledge be disputed by a plea in abatement.
With deference to the majority opinion, all cases I have examined in Virginia and in this State disclose that there is no authority for the decision herein that a plea in abatement may be used to dispute the return of service of process of an officer in the circumstances disclosed herein.
The opinion of the Court has rendered vulnerable the return of an officer on process emanating from a court in practically all cases. The only requirement is that the plea in abatement challenging the return be timely filed. The case ofNuttallburg Smokeless Fuel Co. v. Bank, supra, was the first inroad on the well established "verity rule." Under the opinion of the Court in the instant case the last vestige of the verity rule is virtually destroyed, and no longer obtains as a part of the jurisprudence of this State. The reasons for the verity rule are well supported by reason, authority and sound policy. It is true that Judge Lively in the Nuttalburg case criticized the rule. Nevertheless, the rule has long been accepted and acted upon in this State. Now the principle is set aside by this Court for light and transient reasons, and upon authority which in no wise is applicable. The facts in the cases ofWilliamson v. Taylor, supra, and Crouch v. Crouch, supra, are only faintly similar to the facts in the instant case. The established and undoubted law of a jurisdiction should not be changed on the basis of conjecture, guess-work, supposition, or impulse.
The rule announced in the Court's opinion herein not only impinges upon the "verity rule", as modified by theNuttallburg case, but on the contrary strikes at the rule as modified, and virtually destroys it.
I do not think in the instant case any question of notice or whether defendant has a just defense, can be raised. The simple proposition of law is that defendant had no *Page 296 right to controvert the return of service by the officer by a plea in abatement.
I would affirm the judgment of the Circuit Court of Preston County.