Opinion
No. 6212
Submitted September 25, 1928.
Decided October 2, 1928.
Error to Circuit Court, Marion County.
Action by the F.C. Welch Company against the Barrett Machine Company. Judgment of dismissal on appeal from justice court, and plaintiff brings error.
Reversed.
Coffman Morris, for plaintiff in error.
This action was instituted before a justice of the peace. There was no appearance by the defendant and the plaintiff recovered judgment. Defendant perfected an appeal to the circuit court and then "specially appearing" moved to quash the return. The court sustained the motion and dismissed the case.
The ruling of the court was erroneous. The appeal was a voluntary submission to the jurisdiction of the court. It constituted a general appearance and was a waiver of any defect in the service of process. Snyder v. Lyons, 94 W. Va. 489; Smith v. Thompson, 85 W. Va. 364, 366. "If, in an action pending before a justice of the peace, a judgment is rendered as upon default against a defendant who has not been duly served with a summons, and such defendant appears within ten days from the rendition of the judgment and presents an appeal-bond to be filed and approved by the justice, which is accordingly done, he thereby appears in the action, and submits to the jurisdiction of the court, and cannot afterwards be allowed to deny such jurisdiction." Haas Co. v. Lees, 18 Kan. 449; Swingly v. Haynes, 22 Ill. 214; Fee v. Iron Co., 13 Ohio St. 563; Cohn v. Clark, 48 Okla. 500, Hauptman Co. v. Unverferth, 288 Mo. 52, 35 C. J. section 480, p. 784.
The judgment of the circuit court is accordingly reversed.
Reversed.