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Issues Considered

    • What constitutes a valid service of process under Virginia law;
    • A discussion of void default judgments where there was improper service of process; and
    • A brief discussion of the difference between void and voidable judgments. 

I. Proper Service of Process

A.  How to Achieve a Valid Service of Process

    1. Have a copy of the written complaint served on the party in person.

Have the appropriate sheriff (or private process server) serve the defendant in person with a written copy of the complaint. Va. Code Ann. § 8.01-296 (Michie 2006). This is the preferred method to achieve a valid service of process.

The plaintiff is not permitted to substitute this method of service of process for any other until this method has been attempted. National Trust for Historic Preservation v. 1750 K Inv. P’ship, 100 FRD 483, 38 Fed. R. Serv. 2d 1101 (ED Va. 1984).  

    1. Deliver a copy of the written complaint to a particular person at the defendant’s place of adobe

The second method, known as a substituted or constructive method of service, can achieve valid service of process “If the party to be served is not found at his usual place of abode, by delivering a copy of such process and giving information of its purport to any person found there, who is a member of his family, other than a temporary sojourner or guest, and who is of the age of 16 years or older.”  Va. Code Ann.            § 8.01-296

When a constructive service of process is used in lieu of personal service, strictly follow the terms of the statute. If the service is not performed in accordance with the statute, the service is invalid and the judgment rendered by default is void.  For instance, in one case where there was a judgment by default, the return of service was executed by delivering it to defendant’s wife, “not at his usual place of abode,” instead of the statutory requirement at his usual place of abode. The court ruled that the judgment is void, because of invalid service. Crockett v. Etter, 105 Va. 679, 54 S.E. 864 (1906). 

The service on a stranger non-family member, if contested, will render the default judgment void

In another case, service on the defendant’s son, who was a non-resident of the house and was not considered a member of the family, was not a valid service. Finney v. Clark, 86 Va. 354, 10 S.E. 569 (1889). In this case, the defendant had never authorized the son to accept such service.  Id.  In another case, the Virginia Court explained that service of process on the defendant’s son was also invalid.  Narrows Grocery Co. v. Bailey, 161 Va. 278, 170 S.E. 730 (1933). In that case, the defendant had an illness and the sheriff felt that the illness was sufficient to show inability to serve the him.  Id.  However, the court determined that the defendant’s illness did not prevent him from receiving service of process.  Id.  Thus, the service was invalid and the judgment was void

    1. Service through posting at front door.

The third method of service, which is considered a substitute or constructive method of service, will achieve a valid service when the first and second methods cannot be effectuated.  Under this method, service is permitted by:
…posting a copy of such process at the front door or at such other door as appears to be the main entrance of such place of abode, provided that not less that 10 days before judgment by default may be entered, the party causing service or his attorney or agent mails to the party serviced a copy of such process and thereafter files in the office of the clerk of the court a certificate of such mailing.  Va. Code Ann. § 8.01-296.

         Note that although Virginia Code authorizes a substituted service by posting on the “front door,” a return showing service by posting and leaving on “the door” of defendant’s usual dwelling house does not show a valid service.  King v. Davis, 137 F. 198, aff’d 157 F. 676 (WD Va. 1903). In this case, the sheriff wrote that the defendant had received service through a posting at the “door.”  Because of the omission of the word “front,” the service was invalid and the judgment was void.  Remember that the statutory provisions for a constructive or a substitute service must be strictly construed. 

         If the defendant is temporarily absent from his usual place of abode, the usual place of abode is still the proper place to post the written notice. Parker v. Prince William County, 198 Va. 231, 93 S.E.2d 136 (1956).  Further, in Parker the court stated that a written notice received through the mail was enough to put the defendant on notice and to start the statute of limitations for an appeal.  Id.

    1. Service by publication.

         The fourth method, which is considered a substituted or constructive method of service, is service by publication.  Service by publication is not proper unless the previous three methods of service cannot be effected.  Similar to the other substituted or constructive methods of service of process, the statutory provisions must be strictly construed.  Carlton v. Paxton, 14 Va. App. 105, 415 S.E.2d 600 (Va. Ct. App. 1992).  Generally, an individual who was served by publication may petition to have the case reheard within two years of the judgment, decree or order.  Va. Code Ann.                  § 8.01-322

If one chooses to effect service by publication, one must first exercise “diligence” to ascertain the location of the party to be served.  Va. Code Ann. § 8.01-316.  Many cases arise out of whether the level of diligence (sometimes referred to as due diligence) required by the statute was performed. In one case, the Virginia Court of Appeals states that “diligence” requires a devoted and painstaking application to accomplish an undertaking. Khanna v. Khanna, 18 Va. App. 356, 442 S.E.2d 924 (Va. App. Ct. 1994). 

In another case, the Supreme Court of Virginia explained that Plaintiff’s mere informal contacts with defendant’s unnamed friends at two governmental agencies were not devoted and painstaking efforts to locate defendant and did not satisfy requirement of “diligence” to obtain order of publication after leaving process with Commissioner of Department of Motor Vehicles; plaintiff could have located defendant by calling listed number, paying small fee to DMV, or obtaining subpoena for records of electric utility or U.S. Postal Service. Dennis v. Jones, 240 Va. 12, 393 S.E.2d 390 (1990).                

B.  Where service of process is invalid, the judgment is void.
The general rule is that a judgment that is void cannot be cured by subsequent proceedings. 46 Am. Jur. 2d Judgments § 30 (2006). Thus, a judgment that is void when entered is not retroactively validated where a party enters a subsequent general appearance, but instead remains voidId.  The defect cannot be waived by the defendant appearing to contest the validity of service. Fowler v. Mosher, 85 Va. 421, 7 S.E. 543 (1888). Likewise, because a judgment entered by default without personal jurisdiction over a defendant who has not appeared is void, a default judgment entered without personal jurisdiction cannot be deemed valid if the defendant filed an untimely responsive pleading asserting that defense. Id.

Generally, Virginia Code § 8.01-428 specifies the remedies and procedures available to a party who seeks to have the trial court set aside or correct an error on a judgment absent the issue of proper service. In particular, § 8.01-428(D) provides for the availability of “an independent action to relieve a party from judgment at any time.” Va. Code Ann. § 8.01-428(D) (Michie 2004). Because this section creates an exception to Rule 1:1 and the finality of judgments, the courts have consistently construed it narrowly. Basile v. American Filter Service, Inc., 231 Va. 34, 37, 340 S.E.2d 800, 802 (1986).  Va. Code Ann. § 8.01-428 provides four grounds for correcting a final judgment.  Va. Code Ann. § 8.01-428(D) does not give a defendant a right to petition, but rather permits the Court to entertain a party's independent action if appropriate.

According to the Supreme Court of Virginia, an independent action is appropriate if an applicant can prove:

    • that a judgment should not, in equity and good conscience, be enforced;
    • that it had a good defense to the alleged cause of action on which the judgment is founded;
    • that fraud, accident, or mistake prevented it from obtaining the benefit of its defense;
    • that there was an absence of fault or negligence by the defendant; and
    • that the applicant for relief under this Code section was without an adequate remedy at law.

Charles v. Precision Tune, Inc., 243 Va. 313, 317-18, 414 S.E.2d 831, 833 (1992). To prevail in an action under § 8.01-428(D), all five elements of the independent action must be established. Id.

The defendant may enter an appearance (“special appearance”) to argue insufficient service of process in a default judgment without waiving service of process. Further, the defendant is permitted to argue other substantive issues without waiving service of process. Lyren v. Ohr, 271 Va. 155, 623 S.E. 2d 883 (2006).  Where a service of process was invalid and the plaintiff knew of the defect in the service and failed to establish the validity of the judgment or to take any steps to correct the service, the plaintiff will not be given an opportunity to do so on remand. Crockett v. Etter, 105 Va. 679, 54 S.E. 864 (Va. Ct. App. 1906).

Challenging Service
Va. Code § 8.01-277 states: “A person, upon whom process to answer any action has been served, may take advantage of any defect in the issuance, service or return thereof by a motion to quash filed prior to or simultaneously with the filing of any pleading to the merits.”  This rule only applies if service has been actually served on the defendant.  Lyren v. Ohr, 271 Va. 155, 160, 623 S.E.2d 883, 885 (2006). In instances where the defendant has not been served, this rule does not apply and thus the defendant cannot appear to both file a general appearance and assert protection of the statute and claim he was not served with process.  Id

Thus, when a person is served with service of process, even though the service is invalid, the person must make an appearance or suffer a default judgment.  However, in this case, the defendant is not entitled to raise the defect in service of process if he has already entered a general appearance.  Id.  Va. Code § 8.01-277 requires the defendant to assert any defect in service of process by a motion filed prior to or simultaneous with the filing of any pleading to the merits.  Thus, if the defendant failed to take advantage of that defect in a motion filed prior to or simultaneously with his pleading to the merits, he has waived all defects in the issuance, service, or return of process. Id. At 885. 

The actual phrase “special appearance” is not determinative of whether a special appearance as opposed to a “general appearance” is being made.  Brown v. Burch, 30 Va. App. 670, 677, 519 S.E.2d 403, 406 (Va. App. 1999).  However, the phrase “special appearance” does prove intent.  Id.  “Special appearance” was required at common law; however, the phrase is no longer required under the Virginia Code.  Id.      

However, a default judgment achieved through an invalid service of process is not always a windfall for the defendant. Virginia courts have provided plaintiffs with many opportunities to cure the defect. For instance, where the court has ruled that service of process was invalid and therefore a default judgment is void, provisions of Va. Code Ann. § 8.01-380 still permit the plaintiff to take one nonsuit as a matter of right. The plaintiff must do so before a motion to strike the evidence has been sustained, or before the jury retires from the bar or before the action has been submitted to the court for decision.  Berry v. F&S Fin. Mktg., Inc., 271 Va. 329, 626 S.E. 2d 821 (2006). 

 The defendant realized that a car dealership had been awarded a default judgment in a case in which he  had failed to pay for a purchased vehicle from the plaintiff.  Id.  Defendant appealed the judgment and succeeded on a claim that he was not properly served.  Id. The Plaintiff then moved for a nonsuit.  Id.  The court explained that after the general district court announced its ruling that the default judgment was void for lack of jurisdiction, the parties were restored to their original positions as if a default judgment had never been entered.  Id.

C. Difference between Void and Voidable Judgment
Generally, a judgment is not void merely because it is erroneous, it is void only if the court that entered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with the due process of law.
Plogger v. IMC Mortg. Co. (In re Plogger), 240 Bankr. 243 (W.D. Va. 1999.

II.  Conclusion
Each of the four methods of service of process have strict requirements which must be followed, and defendants have the opportunity to challenge the method of service and a default judgment for lack of personal jurisdiction. Generally, a judgment is not void just because it is flawed. It is void only if the court that entered it lacked jurisdiction of the subject matter, or of the parties, or if the court acted in a manner inconsistent with the due process of law

Researched and prepared by Meghann Proie, Esquire. She is a North Carolina attorney employed by the U.S. Department of Justice.  January 2007



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