71 W. Va. 494 | W. Va. | 1912
Lead Opinion
The petition of plaintiff, a subsequent attaching creditor of Watson in the circuit court, filed before a justice, pursuant to sections 151 and 152, chapter 50, Code 1906, against Loeb Shoe Company, a prior attaching crédito]', of the same debtor, in an action begun before another justice, was dismissed, and on appeal to the intermediate court it was dismissed there, and the circuit court having denied an appeal from that judgment, the petitioner has brought the case here for review.
The first question is, is the matter in controversy, exclusive of costs, sufficient to give this Cort appellate jurisdiction? According to plaintiff’s original and amended petitions the amount for which defendant attached on August 19, 1901, was sixty dollars and twenty cents, with interests and costs.' Defendant insists that the jurisdiction must be tested by the original amount in controversy in his suit, exclusive of costs, and that it does not affirmatively appear from the record, as he insists it must to give appellate jurisdiction, that the principal and interest exceeds the sum or value of one hundred dollars. This was not' a suit to recover a specific sum of money, and the general rule in such cases is, that it is not necessary that the record should show the amount in controversy. That may be shown by affidavit or other evidence presented here. Hannah v. Bank, 53 W. Va. 82. This was properly done, by a certified copy of the final judgment in favor of the defendant in the intermediate court, with taxation of costs, exhibited with plaintiff’s petition. This shows judgment $60.20; interest to date of the judgment July 11, 1910, $31.75; costs before the justice, $14.70, total $106.65; to which, if we add, the costs incurred in the intermediate court on appeal, $27.40, the total would be $134.05. If as insisted the costs incurred on appeal by the garnishee can not be included, there still remains the original judgment, interest and costs incurred before the justice amounting to $106.65.
AVhat then is the real amount in controversy? If the Loeb Shoe Company succeeds in maintaining its attachment, as
The next question is, is the petitioner a claimant, with right to' contest the validity of the attachment of the Loeb Shoe Company?' 11 is insisted that no one but the owner or one with title, and right’ of possesson of the property attached, can do this. This argument is based mainly on said section 151, saying, that upon the filing of the petition and giving the bond, the order of the justice-shall direct the officer “having such execution, order of sale, or attachment * ■ * * to deliver up the property to said claimant,”' and that this could not mean another attaching creditor. Opposed to this narrow construction it is insisted for the petitioner, first, that the language of section 151, specifying what the petition shall contain, indicates the intention of the legislature that anyone, who has “such a claim to or interest in the property levied on, or about to be sold, as entitles him to have the same released from such levy, or to prevent the sale thereof (as the case may be) ” may file such petition, and that this language is comprehensive enough to include a subsequent attaching creditor, with superior right. Another argument is based on analogy to section S3, chapter 106, Code 1906, relating to proceeding upon attachment in the circuit court. That section provides tfiat “Any person interested may file his petition at any time before the property attached, as the estate of a defendant, is sold under the decree or judgment, or if the proceeds of the sale have not been paid over to the plaintiff, or his assigns, within one year after such sale, disputing the validity of the plaintiff’s attachment thereon, or stating a claim thereto, or an interest
The language of said section 151, relating to the delivery of the property to the claimant, constitutes no obstacle to the practical application of section 152 to the case at bar. By proceeding under that section, without bond, the justice is not authorized to turn over the property attached to the claimant; under that section the justice makes no order as to the possession of the property until after the trial of the issue; then he may either “dismiss the claim or order the officer to deliver the property to the claimant, as the right shall appear.” And where, as in this case, the property or money is attached in the hands of a garnishee, under section 197, of chapter 50, Code, unless under section 198 the garnishee voluntarily surrenders the property attached to the officer, it remains with him until after the trial of the issue; and if plaintiff obtains judgment, then by proceeding according to sections 205, 200 and 207, he may have judgment against the garnishee for the property or money attached in his hands sufficient to satisfy his judgment as thereby prescribed. We see nothing in the language of section 151 calling for such a narrow construction as counsel would give it. Section 23, chapter 106, gives clear right to plaintiff in the circuit court to intervene and contest the validity of a prior attachment in the circuit court. No stronger reason can be assigned for limiting claimant of the property, under sections 151 and 153, to owner or title claimant, than for so limiting substantially the same language of the Virginia statute involved in M’Cluny v. Jackson supra, and the answer to the proposition made by the court in that case is applicable here. Indeed the language of our statute, considered in the light of the other sections referred to, presents a stronger case for its application than was presented in that case. We hold, therefore, that under said sections 151 and 152 a subsequent attaching creditor may contest the validity of a prior attachment, as claimant, or as one having right to have the property attached released from the prior attachment.
Being so authorized to intervene, and being properly in this Court, on a writ of error, we reach the next point, namely, is the summons of the justice, issued August 19, 1901, and made returnable August 24, 1901, at 9 o’clock A. M., in the Loeb Shoe
The next point made against the validity of the summons is, that the manner of its direction and of its service, render it void on its face. It is directed as follows: “G. T. Grass. To H. C. Smith, or any Constable of said County.” Section 30, of chapter 50, Code 1906, in force at the time, and relied on, provides: “When it shall satisfactorily appear to a justice issuing a summons, attachment or warrant of arrest in a civil action, or a warrant in a criminal proceeding, that a necessity exists therefor, ho may appoint a special constable to execute the same, either by
The next question is, is the Loeb Shoe Company’s affidavit so defective as to render its attachment absolutely void, or merely
Now, may the validity of that attachment be assailed collaterally, as attempted in this case, or by a proceeding under sections 151 and 152 of chapter 50, Code? We hold that a subsequent attaching creditor may do so; that any creditor with title to or lien upon the property attached may do so. Miller v. White, 46 W. Va. 67; U. S. Baking Co. v. Bachman, 38 W. Va. 84, 3rd syl.; Pendleton v. Smith, 1 W. Va. 16. Independently of the statute where the attachment proceeding is purely ex parte, as in this case, the defendant not being personally served with process and not appearing to the action, the attachment may be collaterally impeached for jurisdictional defects in the affidavit, and unless the affidavit be lawfully sufficient to support the jurisdiction to pronounce judgment thereon it is void. Failure to state the nature of plaintiff’s claim, as required, is not, as we hold, a mere irregularity; it goes to the very life of the writ, rendering it void and quashable. Drake on Attachment (6th ed.), § 87a to § 89b, both inclusive. See on the subject of stating the nature of plaintiff’s claim, and supporting our cases cited, Van Fleet on Collateral Attack, § 263.
But the petitioner, a subsequent attaching creditor, claiming right to attack the prior attachment of defendant, must of course himself show a valid attachment. Without this he can have no standing in court. 4 Cyc. 646. A prima facie case is made, according to the authorities, by showing valid process and war
The judgment complained of simply dismissed plaintiff’s petition, on motion of defendant. The case was not allowed to come to trial on its merits. Por the reasons given we think there is error in that judgment and that it must be reversed, and the case remanded to be further proceeded in according to the principles enunciated herein and further according to the rules and principles of law governing the trial of like casos, and we will so order.
Reversed and Remanded.
Dissenting Opinion
(dissenting):
I am compelled to dissent from the views of the majority of the Court upon the only proposition upon which the decision is fatal to the right of the defendant in error, namely, the insufficiency of the affidavit respecting the nature of the demand. Our decisions are not uniform as to the character of the statement required by the statute. Kesler v. Lapham, 46 W. Va. 293, requires a statement showing all the essential elements of a right of recovery, not merely an indication of the nature of the claim. It is the only case that does require so much detail and certainty in an affidavit for an attachment in a justice’s court, and it fails to overrule others clearly inconsistent with it. Lively v. Loan Association, 46 W. Va. 181, applies a more liberal rule. In the former case the action was for the amount due on certain loan association stock, standing on the books of the association in the name of a person other than the plaintiff, or at least originally issued to such other person. The affidavit did not expressly state any assignment thereof. It showed only that the plaintiff was suing as an assignee. Nevertheless the court held it sufficient. In Todd and Smith v. Gates, 20 W. Va. 464, the affidavit