173 S.E. 570 | W. Va. | 1934
This is an appeal from a decree of the circuit court of Kanawha County sustaining a demurrer to a bill and dismissing it.
The plaintiffs were tenants under a lease, and, falling in arrears in the payment of rent, the landlords caused a distress warrant to be issued by a justice of the peace and a levy thereunder to be made by a constable upon personal property of the lessees. The personal property thus seized was advertised and sold publicly by the constable, at which sale the defendant became the purchaser. By this suit the plaintiffs seek to have said proceeding held for naught, to enjoin the defendant from the removal of any more of said personal property from the leasehold, and to require him to replace such of said personal property as he has already removed. The plaintiffs allege certain irregularities in the distress as basis of their suit. *692
As a general rule equity does not have jurisdiction in such circumstances as there is complete remedy at law.Hancock v. Whitehall,
If the plaintiffs' rights were violated, they should have vindicated them at law where remedies, full, adequate and complete for the purpose are afforded. No reason appears in this case why the plaintiffs did not so proceed. The simple and time-honored method available for lessees in such circumstances is to give a forthcoming bond and then in defense of an action thereon to raise such matters as operate to challenge the right of the landlord under the distress proceedings.Hedrick v. Pack,
The fact that the amount laid in a distress warrant exceeds $300.00, which is the limit of jurisdiction of justices in civil matters, is not material, because a distress warrant does not operate as a writ to initiate a proceeding for juristic determination of the rights of the parties. There can be no trial on such warrant. Anderson v. Henry, supra, page 323. In line of this thought, attention should also be given to a new subsection of Code 1931,
But the giving of a forthcoming bond and defense of an action thereon is not the only avenue open to a tenant whose goods have been seized under a distraint for rent. He has right of action for damages. Code 1931,
Being of opinion that the trial chancellor was plainly right in sustaining the demurrer to the bill and dismissing the same for want of equity, we affirm the decree.
Affirmed.