In Charleston, West Virginia, The West Virginia Record reports:
- In a case with no lawyers and no plaintiff, the defendant won. On April 1, the Supreme Court of Appeals relieved Barry Dailey of liability from a car crash at a Charleston intersection 10 years ago. The Justices reversed Kanawha County Circuit Judge Paul Zakaib, who ordered Dailey to pay Samantha Beane more than $2,000.
- Dailey, pleading his own case, told the Justices in January that Beane served the suit on his mother in Dunbar[, West Virginia] when he lived in Missouri. Beane didn't appear for oral argument. Her former lawyer, Henry Wood, told the Justices in November that he couldn't find her and wouldn't represent her.
- The Justices reached back to 1909 for authority to void any decree based on substitute service that doesn't strictly comply with requirements. "Moreover, our case law is clear that a court that enters a judgment where there has been insufficient service of process is without jurisdiction to enter said judgment," they wrote.(1)
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- "From the outset it is important to note that there is absolutely no evidence whatsoever in the record showing that Mr. Dailey resided at his mother's home," they wrote. The return of service could have indicated that her home was his "usual place of abode," they wrote, but it didn't. "Mr. Dailey's mother was not a party to this case and evidence that service was left at her home, in and of itself, is insufficient to effectuate proper service of process," they wrote.(2)(3)
Source: Defendant wins with no lawyers, no plaintiff.
(1) In the court's ruling, Beane v. Dailey, No. 34630, 2010 W. Va. LEXIS 25 (W.V. April 1, 2010), the court made this observation:
- In Jones v. Crim & Peck, 66 W.Va. 301, 66 S.E. 367, 368 (1909), this Court held that:
“Before substituted service can take the place of, and be equivalent to, an actual personal service, all the requirements of the statute regarding the manner of such substituted service must be strictly complied with. . . . Such want of service renders the decrees based thereon absolutely void.”
- (Citations omitted). Moreover, our case law is clear that a court that enters a judgment where there has been insufficient service of process is without jurisdiction to enter said judgment, “and a void judgment or decree is a mere nullity and may be attacked at any time.” Dierkes v. Dierkes, 165 W.Va. 425, 430, 268 S.E.2d 142, 145 (1980). See Syllabus Point 7, Aldrich v. Aldrich, 147 W.Va. 269, 127 S.E.2d 385 (1962) judgment rev'd on other grounds by 378 U.S. 540, 84 S.Ct. 1687, 12 L.Ed.2d 1020 (1964); Syllabus Point 1, Cable v. Cable 132 W.Va. 620, 53 S.E.2d 637 (1949). See also Desmond v. Brennan, 639 A.2d 1351 (R.I.1994); In re Schmidt, 436 N.W.2d 99 (Minn.1989); In re Hall, 173 Mont. 142, 566 P.2d 401 (1977); Smith v. Hatgimisios, 233 Ga. 354, 211 S.E.2d 306 (1974), aff'g 229 Ga. 475, 192 S.E.2d 270 (1972); Shaddrix v. Womack, 231 Ga. 628, 203 S.E.2d 225 (1974); Webster v. Clanton, 259 S.C. 387, 192 S.E.2d 214 (1972).
(Editor's Note: In the context of foreclosure actions, I still can't help wondering:
- how many foreclosure judgments are floating around out there that are "mere nullities" that "may be attacked at any time," and
- how title insurance agents can sleep at night having to insure these crappy land titles coming out of recent foreclosure actions where judges have lacked jurisdiction, whether by reason of a foreclosing lender's: (a) failure to properly serve a defendant with process, or (b) lack of standing to bring the foreclosure action.)
(2) The story goes on to set forth these details that led to the judgment against Dailey. Beane sued Dailey in 2002, over an auto collision that happened in December 2000. His mother, Cheryl Dailey, received a summons at her home in Dunbar, WV. Beane filed a default motion three months later, with an affidavit from Wood attesting to return of service. Judge Zakaib granted the motion but took two years to hold a hearing and three more to decide how much Dailey owed. In 2008, he awarded $1,600 in general damages and $449.86 in reimbursement of medical expenses, plus five years interest. Dailey appealed, writing that he was unaware of any hearing, trial or verdict. He wrote that as of May 2000, he lived at Whiteman Air Force Base in Missouri. He wrote that he was not a West Virginia resident at any point in the proceedings. As a matter of procedure he should have moved to set aside judgment before appealing, but the Justices let it slide because he lacked counsel, the story states.
(3) Since the Court reversed the default judgment entered below based upon insufficient service of process, it stated in its ruling that it was unnecessary to address any potential issues surrounding the Federal law known as the Servicemembers Civil Relief Act (SCRA) in regard to Mr. Dailey's contention that he was a member of the United States Armed Forces. The Court nevertheless issued a reminder to West Virginia trial courts that they are obligated to observe any applicable requirements of the SCRA, found at 50 App. U.S.C.A. §§ 501 et seq., which, according to the court, was enacted on December 19, 2003, as a recodification of the Soldiers' and Sailors' Civil Relief Act of 1940.
