46 W. Va. 67 | W. Va. | 1899
This is a contest between two creditors of a common debtor tinder attachments on the same property. Miller brought assumpsit in the circuit court of Mason County againts White, and levied an attachment upon certain personal property; and later Carney brought a chancery suit in same court against White, and levied an attachment on the same property, and some days later filed another affidavit, and sued out and levied on the property another attachment, and then field a petition in the Miller action, under Code 1891, c. 106, s. 23, disputing the validity of Miller’s attachment, and setting up his own second attachment as a superior claim to Miller’s attachment; and he filed a plea in abatement, denying the ground stated by Miller in his affidavit for attachment, namely, that White fraudulently contracted the debt on which Miller’s attachment was based. The property was sold, under order of the court, as perishable, and the fund awaits decision of this litigation. A jury tried the case, and found that Carney’s second attachment lien was superior to Miller’s attachment lien, and that the grounds stated in Miller’s affidavit for his attachment did not exist, and the court gave judgment of preference for Carney, and Miller appeals by writ of error.
Miller claims that Carney’s attachment is invalid, and does not affect his attachment. Carney’s first affidavit is bad. It is not relied on by counsel, nor is the attachment under it. Carney’s second affidavit is attacked because it does not state who is the payee of a draft and negotiable notes given by White, and does not say that plaintiff is entitled to them as holder. It gives dates, amounts and maturity of the draft and notes, and says that White made them. It does not say to whom executed, but it states that they were given for logs sold by Carney to White, and this justifies the conclusion that Carney was payee in the draft and notes, and owned them; and this denies the application to this case of Sommers v. Allen, 44 W. Va. 120, (28 S.
It is contended that there can be no second attachment in the same suit. The Code allows several orders of attachment, to go to different officers, to be issued at the same or different times, but I understand this to mean several orders of attachment on one affidavit for the same ground or grounds of attachment; and so this clause does not justify a second affidavit on a different ground of attachment, and a second attachment on that ground. Nor does that clause of the statute allowing an amended affidavit to show additional facts to sustain a ground of attachment before stated in an affidavit. But the Code says that “the plaintiff, at the commencement of the action or suit, or at any time thereafter before judgement, may have an order of attachment” on filing an affidavit stating that “some one or more of the following grounds exist for such attachment” (naming eight grounds). Now, assume a suit properly in court, and an attachment on one ground, and the plaintiff later discovers another ground. Why shall he not sue out a second attachment upon a second affidavit,' stating the second ground of attachment? In this case Carney alleged grounds of attachment other than that of non-residence in his first affidavit, and seeing that it was bad, and discovering that White was, or had since become, a non-resident, why not say that the Code intends to allow him the benefit of non-residence for attachment? See Crim v. Harmon, 38 W. Va. 603, (18 S. E. 753). Such second attachment does not, for lien, relate back to the first, but is a lien only from its levy as to personalty, or its date as to land.
Another question: I have no idea that, if there is no jurisdiction for the suit at its start, a second attachment can impart jurisdiction. Jurisdiction, at the start of Carney’s suit, rested on the charge that White had absconded and concealed himself from process, and that the debt was fraudulently contracted; and, it being a suit in equity on a legal demand, jurisdiction rested solely on the attachment; and, as the first affidavit was bad, the question arises whether there was jurisdiction, — that is, whether the bad affidavit gave the court jurisdiction, so as to warrant a second attachment. For such a question we must distinguish
Another question: It was proper for the court to pass on the legal effect of Carney’s attachment papers, to determine whether Carney had a valid lien; but had the jury anything to do with them? Carney asked to contest the validity of Miller’s attachment, and he made a motion to quash it, which was overruled, and then filed- a plea in abatement to Miller’s attachment, denying the right of attachment, to which Miller replied generally, and issue was joined under that plea. No other issue of fact was in the case. The jury was sworn to try “the issues joined, and inquire into the petitioner’s claim,” ' and rendered a verdict that Carney, by his second attachment, had a lien prior to Miller, and that the grounds of attachment stated in Miller’s affidavit did not exist. This feature of the case presents perplexing questions. There was nothing proper to go to the j ury but the issue on the plea of abatement. The jury, however, was sworn to inquire into Carney’s claim. It is true, the Code does say that a jury shall inquire into the claim of the party claiming right over the plaintiff; but that means where an issue of fact is developed, and does not mean that where, as in this case, the contestant’s claim is based on the legal effect of documents, a jury is to pass on that. Therefore it was wrong to swear the jury to try anything but the issue on the plea in abatement, and wrong to put before it the attachment and affidavit, and especially the bad affidavit and attachment. Of this I feel sure. But I do not feel so sure of the effect of this error. Does it prejudice, or is it harmless? I conclude that swearing the jury to pass on Carney’s claim is simply surplusage, so to call it, immaterial; and so with the introduction as evidence of the attach
From what I have said, it follows that the court, not the jury, should have found for or against Carney’s lien. The court has not done so, except inferentially, by rendering judgment on the verdict. Is this reversible error? I think not. We find, on the papers, Carney’s lien good; and the circuit court, having, bjr overruling the motion for a new trial and rendering judgment, done what it should have done, had it properly passed on Carney’s lien, we conclude that this omission to find as to Carney’s lien is not reversible error.
Contention is made that Miller cannot question the effect of Carney’s attachment documents, as he did not incorporate them in a bill of exceptions; but their legal effect would arise on a motion for new trial.
Miller excepts because he was refused an instruction that every person is presumed to anticipate and intend the probable consequences of known causes and conditions; hence, if White, who purchased logs of Miller, was insolvent (that is, did not have money to make good his promises of payments), and White knew of his insolvency and inability, to pay, then his intention not to pay should be presumed; and if, when he purchased logs from Miller, he had no means by which he could meet the cash and other payments which he proposed and agreed to make, he was guilty of perpetrating fraud on Miller, and thereby fraudulently contracted the debt, and the jury should find for Miller. This involved the law question of what is a fraudulent contraction of debt under our statute making that a ground of attachment. This question is touched, but not decided, in Wickham v. Martin, 13 Gratt. 436. The law is that, where one buys property with intention not to pay for it, it is a fraudulent purchase, whether he make false
The last question is whether the verdict, finding that the purchase was not fraudulent on White’s part, is to stand. White came to Mason County from Indiana, where he resided, in June, 1896, stayed over night at a hotel, and could not pay his bill of seventy-five cents. He himself says that when he arrived he “may not have had a dollar.” That month he purchased a mill at five thousand two hundred dollars, agreeing to pay one thousand dollars down, the balance later; but, though put in possession, he paid nothing. He expected money from parties, as he says, but was disappointed. That month he borrowed little amounts from Kisar. After he purchased the timber, he bid on building a boat for five thousand six hundrerd dollars, on which there would be a loss of'eight hundred dollars; and yet this is a source from which he hoped to pay for the timber. He boarded with Mrs. Loomis, paying only a part of the board, and left the State in July in debt to her for board, and to her husband for work. He told this lady that he had money in a safe in Indiana, and had written to his daughter to send it, but she could not open the safe, and he would write to her to break it and send the money. The money did not appear. In June he offered to buy of Miller fifteen thousand dollars worth of timber, without a dollar to pay for it, and did buy a lot of timber, coming to three thousand seven hundred and thirteen dollars and forty-three cents, and agreed to pay one thousand dollars cash, balance in thirty and sixty days, but paid nothing. He promised to send Miller a check for one thousand dollars, but failed. Oral evidence and his letters show this. He then wrote Miller to draw a sight draft for it, which he did, but it was not paid. He then wanted Miller to take a time note for it. He had no money in bank at Point Pleasant, where he carried on milling, or elsewhere, to pay a check or draft. When negotiating with Miller, he told Miller that he had one thousand dollars to pay cash, but wanted time for the balance. He
Reversed.