King v. Board

7 W. Va. 701 | W. Va. | 1874

HaYMOND, PRESIDENT :

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 overruled by the court. The debtor Absalom Board did not move to quash the order of attachment. Such proceed-" ings were afterwards regularly had in the cause as that the court, on the 3rd day of August, 1872, decreed in favor of the plaintiff against the debtor Absalom Board for the sum of $162.22, with interest from the 6th day of April, 1872, till paid, and the costs of the suit; and also decreed that the land attached by the sheriff in the cause be sold, &c., to pay the debt and costs, and appointed a special commissioner to make the sale &c. From this decree the defendant Adam Board has appealed to this Court; and, by his counsel, assigns the following grounds of error in said decree, viz :

“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 departed from, for slight cause. The cases above cited were “actions at law, and the proceedings by order of attachment were had under chapter one hundred and eighteen of the acts of the Legislature of 1867, page one hundred and forty-seven. This chapter is entitled “An act to amend and re-enact sections one and three of chapter one hundred and fifty-one of the Code of Virginia” and was passed 27th February, 1867. The proceedings in the present cause were had under the provisions of the eleventh section of chapter one hundred and fifty-one of the Code of Virginia of 1860 which was not repealed or affected by the said act of 1867.

“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 order and levy are valid and binding This proceeding is had against the debtor as a non-resident of this State,' and the proceeding could only be had in a county where the debtor has estate. It is, therefore, proper that the bill should show that the debtor had estate in the county where the proceeding or suit is had. But it is not essential to the validity of the attaching order, and the levy thereof, that the property, mentioned in the affidavit, is not mentioned in the order in a proceeding of the character of this. This is not a suit in equity for the recovery of specific property from ne defendant, Absalom Board, but, as before stated, it is for the recovery of a debt, from the absent debtor, by subjecting'his estate, by order of attachment in the cause, to the payment thereof. Where the suit is for the recovery of specific property, it is then, perhaps, material that the specific property, sought to be recovered, should be mentioned in both the affidavit and order. The attaching order in this case was levied by the sheriff on the real property of the absent debtor, mentioned in the affidavit, situate in Jackson county. Proceedings in cases of this kind, under said eleventh section, are the same as in other suits in chancery.

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 :

.First That the affidavit on which the attachment, is "founded is insufficient.

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.

Baull and Moore, Judges, concurred. Absent, Hoffman, Judge, by reason of sickness.

Decree Affirmed amd Suit EemaNded.