Process Corp. v. Rothwell , 117 W. Va. 709 ( 1936 )

I dissent from the ruling of the court for the reason that the case, in my opinion, is controlled by Pereira v. Davis,146 Va. 215, 135 S.E. 823. The plaintiff, in that case, proceeded by notice of motion for judgment, in the circuit court of Albemarle County, Virginia, against the defendants, Davis Financial Agency, a domestic corporation, with its principal office in Albemarle County, and John S. Davis, residing in Fluvanna County, to recover judgment on two promissory notes, executed by the corporation as maker and indorsed by the individual defendant. The notice was served on Davis in Fluvanna County in his individual capacity and as secretary and treasurer of the corporation. Judgment was entered by default in favor of the plaintiff against both defendants. The Supreme Court of Appeals of Virginia held, on writ of error, that the judgment was valid against the individual, but void as to the corporation, because the notice had not been served on it in the county in which its principal office was located, as required by section 6063 of the Virginia Code. Likewise, the Virginia action involved in this case was by notice of motion against a natural person and a corporation in the county in which its principal office was located. The notice was served upon the defendant Rothwell (in his individual capacity and as president of the corporation), outside the county in which the principal office of the corporate defendant was located. It will, therefore, be observed, as seems to be conceded, that there is no difference in the legal facts (except as to the nature of claims sued on) of thePereira case and the action in which the judgment involved in this case was rendered. This distinction, I believe, is unimportant.

The opinion of the majority of the court is, substantially, that the defendants in the Pereira case were jointly liable and therefore properly joined, whereas, the defendants in the action here involved were not jointly liable and were, consequently, improperly joined. The answer to this reasoning is that a misjoiner, under section 6103 of the Virginia Code, must be taken advantage of by plea in abatement, and does not render a judgment in the action void for want of jurisdiction.

Judge Kenna concurs in this note of dissent.