86 W. Va. 599 | W. Va. | 1920
This action of trespass on the case to recover damages for personal injuries claimed to have, been sustained by the plaintiff, because of the negligence of the defendant, was instituted in the circuit court of Berkeley county, returnable to.RTovember Rules, 1919. An affidavit was filed by the plaintiff at the time of the institution of the suit showing that the defendant was a nonresident corporation, created and existing under the laws of the State of ETew York, with its principal place of business at Elmira, ETew York, and an order of attachment was issued against the said' defendant suggesting that the City of Mar-tinsburg, a municipal corporation, was indebted to the defendant, or had funds or monies belonging to the defendant in its
Another order of attachment was likewise sued out, and upon a suggestion that John T. Wolford, Treasurer of the City of Martinsburg, a municipal corporation, was indebted to, or had monies or funds in his possession belonging to, the defendant, such process was executed upon him as garnishe,e. The defendant again appeared specially for the purpose, and for the purpose only, of moving to quash the returns of service made by the sheriff of Berkeley county, and by the sheriff of Kanawha county, as above indicated, and also to quash the garnishee pro
As to the propriety of the ruling in quashing the garnishee' process against the City of Martinsburg, a municipal corporation, it would seem that there can be no doubt. In the ease of Welch Lumber Company v. Garter Bros. & Bird, 78 W. Va. 11, it was held that municipal corporations, on principles of public policy, are not liable to garnishee: process, and that such exemption from such process is not a personal privilege which may be waived.
Could the plaintiff make the treasurer of the City of Martins-burg a garnishee so as to reach funds in his hands owing by the city to the defendant? It is suggested by the plaintiff, and the answer of the garnishee shows this to be the fact, that the city council of the City of Martinsburg has directed the payment to the defendant of the sum of twenty-five hundred dollars on account of money due it by said city, but the treasurer still has that fund in his hands. The plaintiff insists that under the authority of the case of Boylan v. Hines, 62 W. Va. 486, the, garnishee process against the treasurer should be sustained. It is held in that case that where a special commissioner had funds in his hands which the court, whose officer he was, directed him to pay to a particular party, the creditor of that party could garnishee the fund, and it is argued here that because the council of the¡ town of Martinsburg has directed its treasurer to pay twenty-five hundred dollars to the defendant the plaintiff can garnishee that 'fund in the hands of the treasurer. Of course it is admitted that ordinarily public officers are no more thq subject of garnishee process than public corporations, but it is attempted to avoid this rule by the answer of the garnishee that the fund has bee,n directed to be paid by the council. The reason that public officers cannot be made the subject of garnishee
The defendant insists that the circuit court erred in overruling its motion to quash the return of service made by the sheriff of Berkeley county upon an agent of the defendant, for the, reason that it does not show that such service was made in the county in which such agent at the time resided. It is admitted by the plaintiff that prior t.o the enactment of the amendment of 1903 to § 34 of ch.. 50 of the Code, this service would be bad, for the reason above stated, but he contends that since the amendement of that
The remaining question is, was the service had upon the auditor of the state good? This service was made upon the auditor under-the provision of § 24 a (1) of ch. 54 of the Code. The defendant contends that service upon the auditor is limited under the provisions of ch. 54 of the Code to such foreign corporations as are authorized to do business in this state under the provisions of that chapter. It will be found that its provisions require foreign corporations to file certain papers; that a list of such corporations be kept with their post office addresses; and that when such process is served upon the auditor he shall send the same to such corporations at the post office addresses furnished to him as aforesaid. Now, if this section contemplated that any foreign corporation that, might come within the state and have a single transaction, or that might be doing business in the state without having been admitted regularly for ■'■that purpose under the provisions of ch. 54, could be served with
We are of opinion, therefore, that the circuit court was right in quashing the, garnishee process against the City of Martins-burg and the treasurer thereof, but that his judgment in overruling the motion to quash the returns of service made by the sheriffs of Berkeley and Kanawha counties was wrong, and we answer the questions certified accordingly.
Affirmed in part. Reversed in part.