1 W. Va. 16 | W. Va. | 1864
Lead Opinion
delivered the opinion of the court.
This is a -controversy between attaching creditors of Joseph If. Pendleton and Joseph W. Pendleton, seeking to subject their estates to the paymeht of the debts mentioned in the proceedings.
On the 9th day of September, 1861, William K. Pendleton sued out of the clerk’s office of Brooke county court, a summons against Joseph PL. Pendleton and Joseph W. Pendleton, in debt, for two thousand dollars, made returnable to. the ensuing October rules. On the summons the sheriff returned on the 30th day of September, 1861, that ’the defendants were not inhabitants of his bailiwick. On the same 9th day of September, 1861, affidavit was made in the manner prescribed by law, — -that the defendants were indebted to the plaintiffs in the sum of $2000, with interest thereon from the 21st of September, 1850; that the said claim was just, that there was present cause of action therefor, that the defendant Joseph If. Pendleton was a nan resident of this State, that the affiant believed he had estate or debts due him within the said county of Brooke. The affidavit was made before J R. Naylor, clerk of the court. On the same 9th of September, 1861, an attachment was
The plaintiff in error here, has assigned two causes of error in the proceedings:
First, that it was error in the county court allowing the defendant in error to appear and file his petition in that court.
Second, that the county court erred in quashing the attachment.
In the argument of the cause in this court, the attorney for the plaintiff in error, insisted that the petition filed by the defendant in error, showed that the attachment in his
The court is of the opinion that the 6th section of chap. 151 of the Code, 2d edition, page 647, authorizes attachments to be issued in the county in which the absent defendant has effects or estate; the locality of the property in the county and the non residence of the debtor give the court jurisdiction, and this court presuming that the said attachment properly issued from the court of Ohio county, was properly directed to and executed by the sheriff of Brooke county, whereby the defendant in error acquired a lien upon the said land, and that the county court properly admitted the petition to be filed, 'and that the defendant in error might contest the validity of the attachment by moving to quash the same, and that the court did not err in allowing the petition to be filed. This brings the court to the second error assigned. Did the county court err in quashing the attachment?
The attorney for the defendant in error, insists that the attachment ought to have been quashed for two reasons:
First, that the affidavit on which the attachment was founded, was not sufficient to warrant the attachment, that the affidavit should have shown how the defendant was a non resident; and he relied upon the act of the legislature passed the 26th of July, 1861.
Secondly, because the attachment had not been issued by J. R. Naylor, the clerk of the court, and could not properly have been issued by 8. G. Naylor, whom we are to presume, was a deputy of the clerk.
The attorney for the plaintiff in error, in his argument; relied upon the 24th section, of the sixth article of the constitution of Virginia, which declares that “writs shall run in the name of the Commonwealth of Virginia, and be attested by the clerks of the several courts,” and he insisted that the insertion by the deputy clerk of the name of J. R.
This court is of opinion that although our statute authorizes clerks of courts to appoint deputies with the assent of the court, and declares that a deputy cleric may discharge any of the duties of a clerk; Code of 1860, page 696, sec. 8; yet whatever duties the deputy may discharge for his principal, must be in the name of the principal. Writs, summons’ and other process, which are required to be issued by the clerk of a court, must be attested by the clerk in his own proper name: or it may be done by his deputy placing the name of his principal to the process: that the attestation of writs required by the constitution, means the subscribing the name of the clerk to the process. Such has been the usage of clerks from the foundation of the government.
This court is therefore of opinion the attachment was fatally defective for the want of the name of the elerk of the court, subscribed thereto by himself, or for him by his deputy, and that the county court did not err in its judgment quashing the attachment, and consequently there is no error in the judgment of the circuit court affirming that of the county court.
Judgment affirmed with costs and $30 damages.
Dissenting Opinion
dissented.
The attestation clause of the writ of attachment, is in the precise form in use in the common law courts of England and Virginia, differing only in this: in the former the attestation is in the name of the Judge, in the latter in the name of the clerk. In this case it is witnessed by and in the name of the clerk — in his official character.
The writ was issued by the deputy elerk, who was authorized by law to issue it; and was signed by him in his official character as deputy elerk. It had, therefore, in my opinion, all the requisites of a valid writ; and the county
I think therefore, that both judgments should be reversed, with' costs to the plaintiff in this court and both courts “below.
