“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.