37 S.E.2d 443 | W. Va. | 1946
This proceeding by attachment, in which the plaintiff obtained a lien upon personal property of the defendant, for rent to accrue during the period of one year from September 1, 1944, under a written lease between the parties upon improved real estate in the town of Man, Logan County, West Virginia, owned by the plaintiff and, on August 9, 1944, occupied and used by the defendant as a hospital, was instituted before a justice of the peace of that county on that day, under Section 17, Article 6, Chapter 37 of the Code, 1931.
That section prescribes the conditions and details the procedure by which a plaintiff may obtain an attachment for rent against the personal estate of any person liable for such rent, provides that a defendant may make defense in the same manner and to the same extent as in other cases of attachment, and specifies the form of the attachment order that may be issued by a justice of the peace, which, by the terms of the statute and according to the amount of the rent claimed, is returnable to the justice or to the Circuit Court. It is pertinent to observe that the remedy by attachment created by this section is special in character and differs in several material particulars from the ordinary proceeding by attachment provided for in Sections 1 and 2, Article 7, Chapter 38 of the Code, though numerous statutory provisions governing the ordinary proceeding are, by the *577
terms of the statute, Code,
The plaintiff proceeded under this statute and followed the procedure outlined by its terms except one requirement as to the execution of the bond provided for in Section 8, Article 7, Chapter 38 of the Code. No affidavit of the plaintiff, or other reliable person, stating the estimated value of the property to be attached, as specified in that section, was filed by the plaintiff, but he executed, at the time the attachment was sued out, bond with good security, approved by the justice, in the penalty of $9,000.00, with the requisite condition, and the justice issued the order of attachment in the form prescribed by Section 17, Article 6, Chapter 37 of the Code.
The order recited the filing with the justice of the affidavit and the bond as provided by law and required the officer to whom it should come to attach and take into his possession the personal estate of the defendant sufficient to pay the sum of $4,500.00 and costs, and to make return of his proceedings under it to the next regular term of the Circuit Court of Logan County. On August 17, 1944, a constable of the county, to whom the order was delivered, levied upon and took into his possession a large quantity of the personal property of the defendant located upon the leased premises; and on September 2, 1944, the defendant, having removed from the property, executed a bond, with surety in the penalty of $4,600.00, conditioned to perform and satisfy any judgment or decree that may be entered against it by the Circuit Court upon the attachment, and regained possession of the attached personal estate as provided by Section 20, Article 7, Chapter 38 of the Code.
On September 9, 1944, the defendant filed its notice of recoupment and its motion to quash the attachment in the Clerk's office. Two days later, on September 11, 1944, at the first regular term after the attachment was issued, the motion to quash was filed in court by order *578
duly entered in the case. Later in the same term of court, on October 5, 1944, the defendant filed its amended motion to quash, in which, among other grounds, it urged the court to quash the attachment upon the specific ground that no affidavit stating the estimated value of the property to be attached, made by the plaintiff or some reliable person for him, had been filed before the justice at the time the attachment was issued as required by statute. Code,
The basic controversy between the parties to this action involves certain provisions of a written lease entered into by them on October 12, 1942, by which the plaintiff, the owner, demised the premises to the defendant for use as a hospital for a period of ten years from June 1, 1942, at an adjusted monthly rental which was fixed, as of December 1, 1942, at $375.00, payable in advance on the first day of each month for the residue of the term. Before the written lease was executed, and prior to June 1, 1942, the plaintiff had remodeled the premises to make them suitable for use as a hospital by the defendant, and the defendant entered and took possession on or about that date, under a verbal arrangement between the parties which continued until the written lease was entered into on October 12, 1942. The pertinent provisions, concerning which the factual differences arise in this proceeding, relate to repairs to the building and heat and water to be furnished, and are embodied in paragraphs two and three of the lease. *579
These paragraphs contain certain express provisions. Their substance is summarized, by the use of the terms employed by the parties to the lease, in the following sentences. The lessor shall keep the leased building in good and reasonable repair, but he shall not be required to make repairs necessitated by the negligence of the lessee, its agents or employees, or any other repairs that may be necessary, unless reasonable written notice of such repairs is furnished him by the lessee; and the lessee shall not remodel or make any changes to the interior of the leased premises without first obtaining the consent of the lessor. The lessee, without charge, shall have the right to connect with the private water line of the lessor to obtain water for use by the lessee upon the premises, to use the furnace in the basement of the nearby residence of the lessor for the purpose of heating the leased premises when heat is required in its operation of the hospital, and to use the coal of the lessor to operate the furnace. The lessor shall not be required to furnish an adequate supply of water or adequate heat for the use of the hospital or otherwise, and shall simply make available for the use of the lessee such amounts of water and such heating facilities as the lessee may be able to obtain from the water system and the heating system as they were then owned and maintained by the lessor. The lessor shall not be liable to the lessee for any failure of the water or heating systems caused by shortage of water or coal, or for damage to or destruction of such systems, or for any other similar cause. The lessee shall have the right to access to the furnace by means of a designated entrance to the basement of the nearby residence of the lessor to stoke and operate the furnace. The parties agree that the water and heating systems were constructed primarily to supply water and heat to the adjoining residence and the other dwelling houses of the lessor, and that, in the event of damage to or destruction of the water system or the heating system, the lessor is not obligated to repair them immediately. In this connection, the only obligation of the lessor is that *580 when either of such systems shall be repaired for furnishing water or heat to the residence and the other dwelling houses of the lessor, he shall permit the lessee to use the facilities to obtain water and heat from such systems to the same extent as it was entitled to do so before such repairs were made. If the lessee shall be unable to obtain adequate water or heat from the systems of the lessor, it shall have the right, at its own expense, to obtain water from the public water system and to install and operate a separate heating system upon the leased premises. Any change in the plumbing occasioned by such action shall be made in workmanlike manner by plumbers and workers acceptable to the lessor.
Certain adjustments of the terms of the lease were subsequently agreed to between the parties in November, 1943, but in the main they merely clarified, and did not materially alter, the rights and the duties created by the lease in its original form. For that reason they need not here be detailed or discussed.
During the summer of 1942 the parties appear to have been satisfied with these arrangements, but in the winters of 1942, 1943, and 1944, the hospital did not receive adequate heat. The defendant was dissatisfied with the service provided by the water system and the plumbing, and disagreements resulted. The defendant contended that this situation was due to the failure of the plaintiff to perform his obligations under the above mentioned provisions of the lease. This the plaintiff denied. Finally, in August, 1944, the defendant, by notice published in a local newspaper, which came to the attention of the plaintiff, and by conversation between its representative and the son of the plaintiff, informed him that it intended to terminate the lease and remove from the premises. On August 1, 1944, the defendant paid the rent accruing for that month, and, several days later, it moved out of the building. On August 9, 1944, the plaintiff instituted this proceeding.
By its assignments of error the defendant contends: *581
(1) That this proceeding by attachment is void for the reason that no affidavit of the plaintiff, or some other reliable person, stating the estimated value of the property to be attached, was filed by the plaintiff before the justice of the peace; (2) that the attachment is for more rent than will be payable within one year; and (3) that the trial court should have given Instruction Number One requested by the defendant. Upon these grounds the defendant assails the judgment and insists that it should be reversed by this Court.
Attachment is the creature of statute. The remedy by attachment being of a summary nature and capable of oppressive use, the statute authorizing it, being in derogation of the common law, will be strictly construed by the courts. The decisions of this Court uniformly so hold. Lefevre v. Lefevre,
But this requirement of strict construction of such statutes, which is adhered to by this Court, does not render proceedings by attachment subject to dissolution because of technical defects and unsubstantial departures from the words of the statutes. 4 Am. Jur., Attachment and Garnishment, Section 633; 7 C.J.S., Attachment, Section 141. Substantial compliance with the provisions of the statute is sufficient to sustain an attachment. Hatfield v. Blount,
It is significant that there is no contention by the defendant that the bond given by the plaintiff, without the preliminary affidavit, is in any wise insufficient, except for the absence of the affidavit, or that the penalty of $9,000.00 is inadequate or is in fact in an amount less than double the value of the property attached. At no time has it been shown, or attempted to be shown, that the bond, as given by the plaintiff, has not afforded the defendant all the protection which the statute undertakes to provide.
But even if the omission of the affidavit in connection with the execution of the attachment bond had been more serious in character than an unsubstantial defect, its adverse effect was cured by the action of the defendant in executing the bond, with condition to perform the judgment of the court, which the defendant gave on September 2, 1944, without taking any exception to the bond given by the plaintiff, and before it entered its appearance in the proceeding and filed its motion to quash the attachment affidavit and the attachment in court on September 11, 1944; and by its failure to except to the sufficiency of the penalty of the bond executed by the plaintiff by filing its petition in the Circuit Court in the manner provided by the statute, Code,
Code,
In Home Distilling Company v. Himmel,
Code,
The only method provided for excepting to the form, the penalty, or the security of the attachment bond is that specified by the statute. Code,
It is true that another section of the statute, Code,
The affidavit mentioned in these sections, and referred to in Section 32, Article 7, Chapter 38, is essential and forms the jurisdictional basis of the attachment proceeding which is ancillary or collateral to the main suit or action in which the attachment, by the terms of the statute, may issue.Mabie v. Moore,
From an examination and a comparison of the above cited statutes, it is clear that the affidavit required by Sections 1 and 6, Article 7, Chapter 38, as well as the complaint or affidavit required by Section 17, Article 6, Chapter 37, which in each instance forms the basis of proceedings by attachment, whether ancillary or original in character, differs materially from the affidavit required by Section 8, Article 7, Chapter 38, which is merely preliminary or antecedent to the execution of the attachment bond required by that section. It follows that though a motion to quash the attachment under Code,
The second ground relied on by the defendant for reversal is without merit. The claim of the plaintiff is for rent to accrue within one year from September 1, 1944, which is the date to which the rent previously accruing under the lease had been paid by the defendant. The period for which this claim is made is within the express terms of the applicable sections of the statute. Code,
Instruction Number One, requested by the defendant and refused by the court, in substance, would have told the jury that if the jury believed that the plaintiff, by his refusal to provide or permit the plaintiff (meaning defendant) to have access to the furnace in order to provide sufficient heat for the hospital, or if the plaintiff failed to make necessary repairs to the plumbing in the hospital, and, as a result, the defendant was unable to make beneficial use of the leased premises, then the defendant was entitled to surrender the lease and the plaintiff could not recover.
This instruction was properly refused. It erroneously designated the plaintiff instead of the defendant, in undertaking to deal with the alleged refusal of the plaintiff to permit the defendant to have access to the furnace and was, for that reason, incorrect in form. But overlooking that defect and treating it as if it contained the intended reference to the defendant, that portion of the instruction assumes as true the disputed issue of fact whether the plaintiff did or did not refuse to provide or permit the defendant to have access to the furnace. The plaintiff denied that he so refused the defendant and introduced evidence in support of his denial. The evidence offered by the defendant tends to show that the plaintiff did refuse to provide or to permit the defendant to have such access. The evidence on this issue was conflicting. An instruction which assumes as true facts concerning which the evidence is in conflict should not be given. Franklin v. Pence,
The defendant asserts that, under the evidence introduced upon the trial of the case, it had made a valid surrender of the lease after paying the rent due for the month of August, and, as a consequence, the plaintiff *589
was not entitled, as a matter of law, to recover any rent after the end of that month. In support of that contention it cites the case of Koen v. Fairmont Brewing Company,
As no reversible error appears in the case, the judgment of the Circuit Court of Logan County is affirmed.
Affirmed. *590