126 S.E. 427 | S.C. | 1925
Lead Opinion
February 12, 1925. The opinion of the Court was delivered by The plaintiff brought his action against the defendant on account for goods and merchandise, for the sum of $226.00. He then took out a warrant of attachment upon the following affidavit:
"Personally comes J.F. Moore, who, being first duly sworn, says that E.B. Roddey Co. is a corporation under the laws of South Carolina, with its principal place of business at Lancaster, in said County and State; that he is president of said corporation; that a cause of action exists against the defendant, J.F. Bell, Jr., in favor of said plaintiff corporation, for the sum of $226.00, on account of goods, wares, and merchandise sold and delivered by the plaintiff to the defendant, and accepted by him, on and between June 5, 1920, and August 4, 1923, at the instance and request of the defendant, and at agreed prices, which aggregate the *139 above sum, which the said goods were reasonably worth; that the defendant is at present a resident of Lancaster County, said state, and has property therein, but, as deponent is informed and believes, the said defendant is about to remove himself and his property to the State of North Carolina, with intent to defraud his creditors, and, as deponent is further informed and believes, he has disposed of, and is about further to dispose of, certain of his property, with intent to defraud his creditors; that deponent derived this information from J.A. Williams.
"[Signed] J.F. MOORE.
"Sworn to before me this 12th day of December, 1923.
"[Signed] ANNIE V. GREGORY.
"N.P. for S.C."
The appellant moved to set aside the attachment because the affidavit was insufficient. This motion was refused and from the order refusing to set aside the attachment, this appeal is taken. The appeal must be sustained.
In the case of Virginia-Carolina Chemical Co. v. Wilkins, 105 S.C. at pages 297, 298;
"The burden was on the plaintiff, not simply to show the shipment, but to prove by testimony facts and circumstances from which a fraudulent intent is reasonably inferable. The bare allegation of the wicked intent will not support the process of attachment; the intent must be proved by testimony. That is so well settled by numerous decisions that it may be assumed as true.
"The plaintiff's testimony does not nearly prove a fraudulent intent; it only proves that the plaintiff sold to the defendant, a probably insolvent man, a large amount of lumber on a credit, and trusted to the defendant for payment. By the words of the contract the terms were these:
"`All stock to be paid for as fast as each car is shipped and dressed and reloaded. To commence moving stock on yard to be removed and shipped in about 30 days.' *140
"The removal of the lumber out of the State is not a circumstance to be weighed against the defendant; the plaintiff's affidavit upon which the warrant of attachment was issued recites that:
"`The defendant further agreed to remove and ship the whole of the said lumber within about 30 days subsequent to the date of the execution of the contract.'"
There was no claim by the plaintiff that there was any lien on the property sold. The bare fact that the defendant sold some of his property and did not pay it on the debt is, under the above case, insufficient to sustain the attachment.
The order appealed from is reversed.
MESSRS. JUSTICES WATTS and COTHRAN concur.
MR. CHIEF JUSTICES GARY did not participate.
Dissenting Opinion
I concur in the conclusion reached by the Circuit Judge, for the reasons stated in his order refusing to vacate the attachment. Let this order be set out in the report of the case.
