Defendant wins with no lawyers, no plaintiff

CHARLESTON – 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 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.

Beane sued Dailey in 2002, over a collision that happened at Seventh Avenue and Beatrice Street in December 2000.

His mother, Cheryl Dailey, received a summons at her home on Perkins Avenue.

Beane filed a default motion three months later, with an affidavit from Wood attesting to return of service.

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.

"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.