42 W. Va. 526 | W. Va. | 1896
Goodman Bros. & Co. brought an action in the Circuit Court of Mercer county against Henry & Linkous, and issued an attachment, which was levied on a stock of store goods; and, on the next day after the levy, Henry & Linkous conveyed the goods by deed of trust for the benefit of all their creditors.
Afterwards Henry & Linkous confessed judgment in said action, and the goods were sold under the court’s order, as perishable, and, while the fund from their sale was yet in the sheriff’s hands, Meyer, Reinhard & Co. and several other firms filed their petition, stating themselves to be creditors of Henry & Linkous, entitled to participate under said trust in the assets by it conveyed; alleging that the affidavit on which the attachment issued was insufficient, and the attachment also; and praying that they be admitted to defend the attachment, as provided in .section 23, chapter 106, of the Code, and that the affidavit and attachment be quashed. The court refused leave to file statements of supplemental facts. They were quashed, and Goodman Bros. & Co. sued out this writ of error.
Plaintiffs next say that these creditors could not unite in one petition. This is but a technical objection, at most, and this being an informal statutory proceeding, nota formal pleading in a formal suit, we must treat it as remedial, and not overthrow it on technical grounds; but, indeed, I see no objection to the union of these creditors in this attacking petition, because they all united in a common attack on one ground common to all, and all derived rights under one and the same deed of trust. Is it not preferable they should unite, under such circumstances?
Next, the plaintiffs say that these creditors are estopped by the deed of trust itself from contesting the attachment, since, as they claim under it, they must obey it, and that it recognized the attachment lien by the provision securing all creditors “according to the respective rights and priorities of said creditors giving no priority or preference to any.” The plaintiff’s lien is not, by name, preserved. I
Plaintiffs complain that the court quashed the affidavit on which the attachment issued. The affidavit specified two grounds of attachment — Eirst, the non-residence of one of the two members of the debtor firm. His non-residence would not sustain the attachment against social assets, to the prejudice social creditors. Andrews v. Mundy, 36 W. Va. 22 (14 S. E. 414). The other ground of attachment is that Henry & Linkous were about to convert their property into money or securities with intent to defraud their creditors; and, as material facts to sustain this ground of attachment, the affidavit states that “the defendant Moses Henry has already sold his real estate in Mercer county, and said defendants Henry & Linkous have, made an effort to sell and convert their personal property in said county into money or securities with intent to defraud their creditors.” I am forced to the conclusion that this affidavit in the statement of the material facts is bad. In the first place, an attachment is a harsh proceeding, governed by strict tests, and not treated with liberality. The material facts required to be stated in the affidavit by section 1, chapter 106, of the Code, are the evidence to prove the ground of attachment. They must, regarded as evidence, be sufficient to prove the proposition asserted as a ground of attachment; here — the fact that defendants were about to convert their property into money or securities with intent to defraud their creditors; and, failing to show that fact, the attachment must be quashed, from the face of the affidavit alone,by the letter of
Lastly, plaintiffs complain that the court refused to give leave to file a supplemental affidavit stating other facts coming to their knowledge since the filing of the affidavit, to show the ground of attachment. Section 1, chapter 106, Code, gives “right” to file this supplemental affidavit. Notice that “right” is the word used, not “the court may grant leave,” or such words. The law of attachments, unrelieved by statute, is rigid — especially so as to affidavits on which they stand. It is easy to make á slip. And attachments are generally sued out in haste, before the affiant has had time or opportunity to find out all the facts touching the action of the fraudulent debtor. His affidavit as to those facts, dependent always on inquiry and dilligent investigation, requiring time, may be often short of the measure of the law. The legislature has stepped in with an indulgence here, to save the effort of a just and dilligent creditor to secure his debt from total failure, and generally his debt from loss. We must apply this indulgence with liberality, as said by Judge Holt in Crim v. Harmon, 38 W. Va. 604 (18 S. E. 753) “to advance the remedy and suppress the mischief intended to be remedied.” It was moved by a desire to mollify the rigor of the rule above stated. The request for leave to file this supplemental affidavit was not too late. On 21st February the plaintiff demurred to that petition, and the demurrer was overruled 22d February; and on the latter day the plaintiffs raised the question whether the creditors could defend against the attachment, and the court held that they could; and then came a motion to quash the affidavit, which was that day sustained; and next day, before entry of judgment quashing the attachment, this motion to suspend judgment and allow time to file the supplemental affidavit was made. Now, the demurrer and right of plaintiffs to contest the affidavit were not settled till 22d-February. Till then, the plaintiffs could not tell what would be the ruling of the court. The motion to
But upon this question, whether the supplemental affidavit can give continued priority of lien to the attachment over the deed of trust creditors, the court is evenly divided; Judge Holt and myself holding that it does, and Judges English and Bent holding that, while'the amendment continues the lien as against the debtor, it does not to the prejudice of the deed of trust creditors.
By equal division of the Court the judgment is affirmed.