7 W. Va. 701 | W. Va. | 1874
This is a bill in the nature of a foreign attachment. The plaintiff commenced his proceeding against his debt- or Absalom Board, and others, in the circuit court of Jackson county on the 8th day of January, 1868, upon the summons issued in the cause, and the clerk at the instance of the plaintiff endorsed thereon, substantially, the order of attachment required by the eleventh section of chapter one hundred and fifty-one the Code of 1860. The plaintiff filed his bill, regularly, against the defendants named in the summons. The sheriff levied the order of attachment upon the interest of the defendant Absalom Board, in certain real estate, situate in said county of Jackson, in the bill and proceedings mentioned. The defendants Absalom Board, Adam Board, and John H. Riley filed their answers. The defendant Adam Board in his answer sets up a claim to the real estate attached in the cause, and at the time he filed his answer he moved to quash the order of attachment, which motion was over
“First. That the endorsement on the summons, issued in the cause, requiring the sheriff to attach the estate of the petitioner’s co-defendant Absalom Board, or to perform any other act in premises, has none of the essentials of a valid attachment, because the order of attachment does not run in the name of the State of West "Virginia, and he cites the Constitution of West Virginia, of 1867, Code of 1868, p. 31. It is true the order of attachment endorsed on the back of the summons, by the clerk, does not, on its face, run in the name of the State of West Virginia, but the summons in the cause on which it is endorsed does.- The question raised by this assignment of error was decided by the Supreme Court of Appeals of this State at the July term, 1871 in the cases M. Gutman & Co., v. The Virginia Iron Company; McClellan & Knox v. Idem, 5 W. Va., 23. In these causes Judge Moore delivered the opinion of the Court in which it is expressly held” that the order of attachment provided for in the act of 1867, chapter one hundred and eighteen, section one, is not a writ, and need not run in the name of the State.” I do not think it proper to disturb this decision, at this time, by expressing dissent therefrom, as a different ruling now might be productive of great injury, and the ruling being upon a constitutional question it ought not now to be de
“Second. Because the court overruled the motion of petitioner to quash said order of attachment.”
“Third. Because the property was not specified in the said order of attachment.”
“Fourth. Because no order of attachment was, in fact, ever issued, and the act of 1867 is cited.”
“Fifth. Because the order endorsed on said summons does not show that the plaintiff had filed his affidavit, as required by law, and said act of 1867, is again cited.”
An order of attachment, endorsed on the summons in the cause, levied by the sheriff on estate of the debtor, not specified in the order, would be as valid and binding, under the eleventh section of chapter one hundred and fifty-one of the Code of 1860,' of Virginia, on the property so levied on, as if levied on the specific property of the debtor mentioned in the affidavit, upon which the order of attachment issued. This is manifest from the provisions of the section on that subject. It must follow, therefore, if the order of attachment does not direct the sheriff to attach the specific property of the debtor, mentioned in the affidavit, in a case like this, but directs the sheriff to attach the estate, both real and personal, of the debtor sufficient to satisfy the plaintiff’s ■demand of $184.85, with interest and costs of the suit ; and the order is duly levied on real estate of the debtor in the county, and due return made thereof, that such
As before stated, this proceeding is not under the act of 1867, cited by appellant’s counsel, but is a proceeding under the eleventh section of chapter one hundred and fifty-one of the code of Virginia, of 1860, and there was an order of attachment, endorsed by the clerk, upon the summons. It is true that the order of attachment does not recite that the plaintiff has filed an affidavit, but it is sufficiently shown by the record that an affidavit was filed by the plaintiff, and it is cei’tified as a part of the record and as being the affidavit of the complainant on which the order of attachment was issued. And the grounds, and only grounds, upon which the appellant moved the court to quash the attachment, as disclosed by the record, were :
Second. That the order of attachment endorsed on the summons did not run in the name of the State.
Third. That the property is not specified in said order.
Certainly the court, in overruling the motion to quash, heard and considered the motion on the affidavit, as well as the other proceedings involved in the determination of the motion. The affidavit was made by the plaintiff before the clerk, who issued the summons and endorsed thereon the order of attachment, and it bears the same date as the summons and order of attachment. The affidavit is full and substantially sufficient on its face, Under the provisions of said eleventh section. However, it is not insisted here by the appellant’s counsel, that the affidavit, appearing by the record, is insufficient. Upon the whole, the grounds of error assigned by the appellant’s counsel, are not. well taken.
There being no errors assigned by the appellant’s' counsel, except those above considered, and no others in ¡any way brought to the attention of this Court, and the •Court seeing none in the decree appealed from, the said ■decree of the circuit court of the county of Jackson, Tendered in this cause on the 3d day of August, 1872, .must be affirmed with costs and $30 damages, in favor of -.the appellee, George S. M. King, against the appellant, Adam Board, and the cause remanded to the circuit ¡court of Jackson county, for the further proceedings therein to be had, according to the rules governing courts of equity in such cases.
Decree Affirmed amd Suit EemaNded.