Opinion

Leslie Equipment Co. v. Wood Resources Co.

  • 224 W. Va. 530
  • 687 S.E.2d 109
Court
West Virginia Supreme Court
Filed
Oct 30, 2009
Status
Published
Author
Ketchum
On the bench
McHugh, Davis, Workman, Ketchum
Cited by
19 cases
Authority
More cited than 12.9%

“In contrast to the legislative schema of West Virginia Code § 56–3–33 (Supp.2009), Rule 4 of the West Virginia Rules of Civil Procedure does not provide that constructive service on a nonresident defendant has the same force of law as personal service effected in state. As a result, in personam jurisdiction does not arise by operation of law when a nonresident defendant is constructively served with process pursuant to the provisions of Rule 4 of the West Virginia Rules of Civil Procedure.”

How later courts described this case

  • “In contrast to the legislative schema of West Virginia Code § 56–3–33 (Supp.2009), Rule 4 of the West Virginia Rules of Civil Procedure does not provide that constructive service on a nonresident defendant has the same force of law as personal service effected in state. As a result, in personam jurisdiction does not arise by operation of law when a nonresident defendant is constructively served with process pursuant to the provisions of Rule 4 of the West Virginia Rules of Civil Procedure.”
  • “In contrast to the legislative schema of West Virginia Code § 56–3–33 (Supp.2009
  • “‘To enable a court to hear and determine an action, suit or other proceeding it must have jurisdiction of the subject matter and jurisdiction of the parties; both are necessary and the absence of either is fatal to its jurisdiction.’”
  • “Once void, always void.”

Written by the judges who cited it.

The opinion

KETCHUM, Justice,

concurring:

I concur completely with the majority opinion. I write to express my concern that Rule 60(b)(4) requires that a motion to set aside a void judgment must be filed within a reasonable period of time after entry of the void judgment.

What is a reasonable period of time? If a defendant learns 10 years later that a void judgment has been entered against him or her, is it too late to set aside the void judgment under Rule 60(b)(4)? What constitutes a “reasonable time” is not subject to precise definition. Savas v. Savas, 181 W.Va. 316 , 319 n. 2, 382 S.E.2d 510 , 513 n. 2 (1989) (The term “reasonable time” is not susceptible of a precise definition). Different circuit judges will apply different definitions to the term “reasonable time.”

There should be no time limit to set aside a void judgment. Once void, always void. Although Rule 60(b) indicates that relief from a judgment may also be sought through an independent action, Rule 60(b) should be amended to eliminate any time limit for setting aside a judgment that is void.

I, therefore, concur in the decision of this Court.

I am authorized to state that Justice WORKMAN joins me in this concurrence.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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