Munroe v. Williams

37 S.C. 81 | S.C. | 1892

The opinion of the court was delivered by

Me. Justice McGowan.

These two cases were writs of attachment, and heard together. They were issued against the property of the defendants as non-residents of the State. The property was seized in the counties of Marlboro and Darlington. The following is the affidavit upon which the first above case is based:

“The State oe South Gaeolina, County of Marlboro. Personally comes before me, Neill C. Munroe, who, being duly sworn, says, that the defendants, Williams & Turley, are justly indebted to him, the plaintiff above named, in the sum of eighty-two dollars and eighty-two cents ($82.82), for. lumber sold and delivered to said defendants. That the same is now due, and no part thereof has been paid, and said defendants refuse to pay the same. That said defendants are both non-residents of the State, but are here only temporarily working on the Charleston, Sumter, and Northern Railroad, the said Williams being a resident and citizen of the State of Virginia, and the said Turley being a resident and citizen of the State of North Carolina, so deponent is informed and believes; but that said defendants own property in this State, to wit: a lot of mules, lumber, railroad tools, wagons, moneys, in the counties of Marlboro and Darlington, all of which deponent washes to attach as security for the said debt now due said plaintiff, and to this end has issued a summons in the above action. Wherefore, defendant craves a warrant of attachment for the purpose of attaching Said property to secure said debt. (Signed) N. C. Muneoe.

“Sworn to before me, this December 19, 1890.

“(Signed) C. M. Weatheesby, Clerk.”

The second attachment above was issued upon an affidavit in terms identical with the foregoing, except that it alleged that the defendants owed plaintiffs the sum of five hundred and seventy-three dollars and sixty-two cents ($573.62), for lumber sold and delivered.

On January 15,1891, the defendants served notice of motions to vacate the attachments, upon a number of affidavits, which can not be reproduced here on account of their great length, but they are all printed in the Brief. The following grounds were taken to set aside the attachments: (1) Because the warrants of attachment are not countersigned by the plaintiffs’ attorney, as is required by law. (2) Because the sureties on the attachment bonds or undertakings in both cases have not justified as required by law. (3) Because the affidavits on which said attachments were issued have not been filed according to law. (4) Because in the case of Munroe & Everett, there is no statement of the individual names of the plaintiffs nor allegations of partnership. (5) Because there is no statement in either of said cases showing the individual names of the defendants, and no allegation of partnership between them. (6) Because the defendants, Williams & Turley, are not non-residents of the State of South Carolina, but residents in said State, and are not subject to attachment as non-residents. (7) Because there is no proof of the execution of the bonds or undertakings in said cases, as is required by law. (8) Because the claims upon which the attachments issued are not sufficiently stated in the affidavits made to obtain the attachments. (9) Because there has been no service of summons, nor order for publication, nor for such further order as may bej ust. And for the cost- of this motion.

The motions to vacate were made before his honor, Judge Hudson, upon numerous affidavits pro and con; and he held that he regarded West Virginia as the home and residence of the defendants, and found from all the evidence that they are not residents in this State, but only tarrying here until their contract is ended, when they will go hence, and he refused the motion to vacate the attachments. From this order the defendants appeal to this court, upon the following grounds: First. Because his honor erred in holding that the failure of the sureties on the undertaking given by the plaintiffs (to justify), and upon which the warrant was issued in each of the cases, was not fatal to the validity of the writs, but amendable. Second. Because his honor erred in holding that the failure to prove the execution of said undertaking by the subscribing witness, as required bjr law, was an amendable defect. Third. Because his honor erred in holding that the defendants were not residents of the State. Fourth. Because his honor erred in not vacating said attachments, on the grounds that the sureties on the undertakings upon which the same were issued failed to justify, and the execution of said undertakings was not proved.

The argument here was elaborate and instructive, but from the view which the court takes, it will not be necessary to consider the alleged irregularities in the proceedings. We think the cases must be determined by the conclusion reached upon the third ground of appeal, which charges that his honor erred ■in holding that the defendants were non-residents of the State of South Carolina, in the sense of the attachment act. There was in the cases no allegation of fraud, in removing or attempting to remove the property, or otherwise. The defendants were not absent, but present within the jurisdiction of the court, and there was ho obstacle to their being served with process in the usual way. The single ground for the attachment was, that the defendants were non-residents.

1 In section 250 of the Code it is provided, that “the warrant may be issued, whenever it shall appear by affidavit that a cause of action exists against such defendant, specifying the amount of the claim and the grounds thereof, and that the defendant is either a foreign corporation or not a resident of this State,” &c. Were these defendants “non-residents” of the State, within the meaning of this provision, at the time these attachments issued? It seems that there is not in this State any case—at least, none was cited—in which the phrase “non-resident” has received judicial interpretation, but there are decisions upon the subject in other States. We do not think that residence and domicile are identical and convertible terms. “In determining whether a debtor is a resident of a particular State, the question as to his domicile is not necessarily always involved; for he may have a residence which is not in law his domicile. Domicile includes residence, with an intention to remain; while no length of residence, without the intention of remaining, constitutes domicile. A resident and an inhabitant mean the same thing. A person resident is defined to be one ‘dwelling or having his place of abode in any place.’ These terms are, therefore, used synonymously.” Drake Attach. (7 edit.), §§ 58, 59, and notes.

Were, then, the defendants non-residents of the State when the attachments were issued? That is a mixed question of law and fact. It is quite impossible, within proper compass, to review all the affidavits, some of which are very long, but we have read them carefully, and we think the substance correctly expressed by the statement at the bar as follows, viz : “Frank Williams, a native of West Virginia, left that State several years ago, and has been engaged in railroad contracting. He left his native State never to return to it as a home. He is married, but, owing to incompatibility of temper, was separated from his wife, and has lived for several years, and expects to continue to live, separate from her. Williams and Turley came to South Carolina in May, 1890, with the intention of remaining at least one year, and for further time indefinitely, and have resided here continuously ever since. They entered into a binding contract with the Central Carolina Land and Improvement Company, which would take very near a year, if not longer, to complete, and have invested largely, and own property in Marlboro and Darlington counties. They have resided steadily in this State since their arrival, and expect, after the completion of their contract with the said company, to engage in the timber business in South Carolina and remain permanently. They announced their intention to settle permanently in the State, and go into the timber business on the Pee Dee, to several parties, months before these attachment proceedings were begun; some of whom were T. E. Lupo, W. R. Busbee, .1. W. Reynolds, A. F. Cumber, and contracted to purchase from J. W. Reynolds all the timber on his land on the Pee Dee. The statement is made positively by Williams that this is his place of residence—that he has no home, if not here; that he left West Virginia years ago with no expectation of returning to it as a home—and this is uncontradicted. There is no evidence that Turley has a residence any where else than South Carolina.”

It is universally conceded that attachment is a very strong and rigid process, and this court has often held, that, before it issues, giving the great powers which it confers, the case in which it is issued should be plain, and every pre-requisite of the law complied with. This is required by the nature of the remedy itself, which, as we understand it, was intended to afford the means of making an absent debtor a party by seizing his property, when the court could not acquire jurisdiction of his person by the ordinary service of summons. As was said by the late Chief Justice Simpson, in the case of Whitfield v. Hovey, 30 S. C., 119: “Our Code provides that an attachment may issue against a non-resident under certain circumstances, and his property seized thereunder as a security for such judgment as the plaintiff may recover. This is, doubtless, because the defendant being a non-resident, the court can not obtain jurisdiction of the person of the defendant, and his creditors would be without remedy, unless jurisdiction could be acquired over his property in some way. Hence the attachment. It would seem, therefore, that where jurisdiction may be acquired without au attachment, the reason of the rule ceasing, the rule itself would not exist.”

In Garden v. Garden, 107 N. C., 216, Shepherd, Justice, said : “Without deciding who in law is a non-resident in other respects, but confining the decision to a construction of the statute, the conclusion is that where one voluntarily removes from this to another State, for the purpose of discharging the duties of an office of indefinite duration, which required his continued presence there for an unlimited term, such a one is a non-resident of this State for the purposes of an attachment; and that, notwithstanding he may occasionally visit this State, and may have the intent to return at some uncertain future time. The prominent idea is that the debtor must be a non-resident of the State, where the attachment is sued out; not that he must be a resident elsewhere. * * '•'* The essential charge is that he is not residing or living in the State—that is, he has no abode or home within it, where process may be served, so as effectually to reach him. In other words, his property is attachable, if his residence is not such as to subject him personally to the jurisdiction of the court, and place him upon an equality with other residents in this respect,” &c. See Hanson v. Graham, 82 Cal., 631; Long v. Ryan, 30 Grat., 720; Frost v. Brisbin, 19 Wend., 11, reported in 32 American Decisions, 423, and other cases cited in the argument of the appellants.

The case of Long v. Ryan, supra, was in reference to the residence of a railroad contractor and builder. It is too long to be cited at length, but the court said: “Upon this state of facts it is apparent that the word resident, like that of domicile, is often used to express different meanings, according to the subject matter. In statutes relating to taxation, settlement, right of suffrage, and qualification for office, it may have a very different construction from that which belongs to the statutes relating to attachments. In the latter, achual residence is contemplated, as distinguished from legal residence. * * * While, on the one hand, the casual or temporary sojourn of a person in this State, whether on business or pleasure, does not make him a resident of this State, within the meaning of the attachment lavs, especially if hi's personal domicile is elsewhere; so, on the other hand, it is not essential that he should come into the State with the intention to remain here permanently, to constitute him a resident,” &c.

It is very clear from the facts of this case that the process of the court could have been served on the defendants personally. There was no fraud in the case. The defendants were not absent, but present in the jurisdiction. We do not think it was shown that they were non-residents in the sense of the attachment laws, and the decision below, refusing to vacate the warrants of attachment, is reversed.