46 S.C. 39 | S.C. | 1896
The opinion of the court was delivered by
It seems that this appeal comes up on this state of facts: W. R. Doty & Co., a mercantile firm doing business in the town of Winnsboro, in the county of Fairfield, in this State, made large advances to one J. W. Boyd, taking from him, as security for such advances, three liens on all his crops to be raised during the year 1894. Doty & Co. had their liens indexed in the office of the clerk of court for Fairfield County. The liens were not fully paid, and some differences having arisen between the lienor and the lienees touching the payment of said advances, W. R. Doty, for the firm of W. R. Doty & Co., applied to the clerk of court, R. H. Jennings, Hsq., for a warrant directed to the sheriff of Fairfield County, to seize the crops of J. W. Boyd, alleging that said Boyd had sold a bale of cotton covered by the liens held by Doty & Co. without the consent of said firm, and without applying the proceeds of such sale to the pro tanto payment of his indebtedness.
1. That the said warrant was irregularly issued, as the affidavit upon which the same was issued does not state facts sufficient in law to justify the issuing thereof.
2. That the said warrant was improvidently issued, as the statements contained therein are not true.
3. That it appears upon the face of the original papers that there was no sufficient affidavit made and sworn to before any officer authorized by law to administer an oath, and signed by such officer.
4. That no sufficient and legal bond, signed by the said W. R. Doty & Co., was executed and delivered to the clerk before the issuing of the said warrant.
5. That the original undertaking, affidavit (or what purports to be an affidavit), and other papers were not filed in the office of the clerk of court within ten days after issuing the same, as required by section 250 of the • Code of Procedure of this State, and rule 69 of the Circuit Coirrt of this State.
At the hearing before Judge Benet, affidavits relating to the foregoing defects were submitted on behalf of J. W. Boyd. W. R. Doty & Co. submitted affidavits that although the affidavit of W. R. Doty was signed by him, and no name of the officer before whom such affidavit was •made, yet in fact it was sworn to before R. H. Jennings, Esq., as clerk, who issued the warrant of attachment, and that this omission of the officer’s name to the affidavit was unintentional; and W. R. Doty & Co. also submitted an
When the motion came on to be heard before Judge Benet, he refused the motion in a written order to that effect. From this order J. W. Boyd now appeals, on six grounds, which need not be set out, but the effect thereof maybe thus stated:
First. That the Circuit Judge erred in not holding that the clerk of court could not have jurisdiction to issue the warrant, in the absence of an affidavit duly signed by W. R. Doty before an officer whose name should have been signed thereto as the person before whom the affidavit was made.
Second. That the Circuit Judge erred in holding that it was not fatal to the warrant, and all proceedings thereunder, when the affidavit of W. R. Doty and the undertaking by him were not filed in the office of the clerk of court for Fairfield Couuty within ten days after the issuing of the warrant, as required by section 250 of the Code of Procedure, and the 69th. rule of the Circuit Courts of this State.
Third. That his honor erred in holding the undertaking to be sufficient.
At the hearing before us The third ground was abandoned.
Lastly. We have had brought to our attention some elements of a settlement between these parties here contesting, and, therefore, we deem it important to such parties that we say very frankly that nothing we have said in
It is the judgment of this court, that the order of the Circuit Judge appealed from be vacated and the cause remanded to the Circuit Court, with directions to that court to make an order vacating the warrant of attachment and all the proceedings thereunder.