46 S.C. 517 | S.C. | 1896
The opinion of the Court was delivered by
This was a motion, notice of which was served on the 5th of November, 1895, to vacate a warrant issued by a trial justice on the 25th of September, 1895, to enforce an alleged agricultural lien held by plaintiffs upon the crops of the defendant to secure advances for the year 1895. The motion was based “upon the ground that the said lien warrant was improvidently issued, and for such other and further relief as the justice of the case may demand.” The motion was based upon affidavits tending to show that no advances were made during the year 1895 by the plaintiffs to the defendant, but that the paper purporting to be an agricultural lien was given to secure an old debt contracted by defendant to plaintiffs in the year 1894. The plaintiffs submitted an affidavit tending to show that the agricultural lien was to secure the payment of sixty dollars, the price of 100 bushels of corn sold to defendant for agricultural purposes on the 25th of April, 1895, the day the agricultural lien was executed. This affidavit further stated that the lien was payable on the 25th of October, 1895, and that the crops were seized by the constable of the trial justice on the 27th of September, 1895. The motion was heard by-his Honor, Judge
Prom this order the defendant has appealed upon three grounds which are set out in the record, which make substantially these questions: 1st. Whether there was error in holding that the lapse of the ten days precluded defendant’s right to make this motion. 2d. Whether there was error in not holding that the motion was in the nature of a motion to vacate an attachment, which could be made at any time while the property seized was in the custody of the Court. 3d. Whether there was error in refusing to consider and decide the issue raised by the proceedings, viz: whether the warrant was improvidently issued.
The plaintiffs, according to proper practice, gave notice that they would insist that the order refusing the motion should be sustained upon the following additional grounds: 1st. Because the Circuit Judge had no jurisdiction, as the case was then pending in the trial justice court. 2d. Because under the facts proved the defendant was not entitled to the relief asked for.
What has been said practically disposes of the defendant’s third exception, and it may be dismissed from further consideration.
It is the judgment of this Court, that the order appealed from be reversed, with leave to the appellant lienor to renew his motion to vacate the warrant of seizure before any proper tribunal, as he may be advised.