8 W. Va. 274 | W. Va. | 1875
The plaintiff filed his bill in the circuit court of Kan-awha county against the Bank of Charleston, and sued out an attachment therein against the property of the Bank, and divers persons, parties to the bill, were summoned as garnishees. Various orders and decrees were made in the cause, and after the cause had been pending some time, and on the 10th day of January, 1870, the plaintiff filed his amended bill, making the defendant, James B. Bowlin, administrator of Albert G. Jenkins, deceased, and others, defendants. In this amended bill plaintiff alleges said Bowlin as administrator as aforesaid, the Western Mining and Manufacturing Company, and T. L. Broun have in their hands and owe large sums of money to the Bank of Charleston, which plaintiff is advised is liable to the payment of his claim, and he asks that they, also, be made party defendants and answer, Ac. An order of attachment was issued by the clerk against the estate of the Bank of Charleston on the day the amended bill was filed, and the plaintiff, by endorsement on the order, designated Bowlin, administrator as aforesaid, as a person indebted to the Bank of Charleston; and
The summ011is ;n case was ma(je returnable to the first-day of the March term of the said court, 1870, and was issued on the day the amended bill was filed.
Afterwards, on the 24th day of March, 1870, Bowlin,, the administrator, appeared in court and filed his answer to the amended bill. The answer of Bowlin is inartificially drawn, but it substantially controverts the material allegations of the bill, and relies upon and pleads the statute of limitations.
To this answer the plaintiff, as the record states, filed his general replication at the time the answer was fi led' In the record there appears what purports to be a special replication to the answer of Bowlin, but there is nothing in the record of the proceedings of the court showing that it was ever filed. It is true the clerk says in making up the record that it is a copy of a replication filed in the cause to said answer. But the certificate of the clerk to-that effect is not sufficient to make it a part of the record, unless the fact of its being filed is sufficiently shown by the record of the proceedings of the court;- and that fact is not shown by the record of the proceedings of the court, but the record states that the plaintiff replied generally to the answer. But if such special replication was shown by the record to have been filed' it is insufficient and defective. The special replication is in these words: “And for special replication, said Sims says that he is informed and believes and charges that A. G. Jenkins lived in Cabell county, "Virginia, until the spring of 1861, when he raised a company and went into the Confederate service. He remained in the Confederate service until the spring of 1865, when he was killed in battle. All this time he was out of the State of West Virginia, and not in its present boundaries, except when passing through parts of it on raids, and no process could be served upon him. He had no
On the 26th day of June, 1871, the court made a decree in the cause, but not, against said Bowlin, and on the 26th day of March, 1872, the court made another decree in the cause, but not against said Bowlin, and, under the view I take of the cause, it is unnecessary to notice them.
On the 2d day of April, 1872, the cause came on to be heard on the papers theretofore read therein, and the •answer of the administrator of A. G. Jenkins, deceased, to the amended bill and attachment and plea of the statute of limitations, and replication to said answer, plea, the depositions of witnesses and was set for hearing; and the court ascertained that there is due from the Bank of Charleston to the complainant $2,391.09, with interest thereon from that day until paid and the court says in its decree “and it further appearing to the court that •the estate of A. G. Jenkins, deceased, is indebted to the Bank of Charleston in a sum of money sufficient to satisfy the complainant his said debt and interest aforesaid and costs of this suit, the court doth adjudge, order and •decree, that James B. Bowlin as administrator of A. G. Jenkins, deceased, out of any money in his hands belonging
And I now proceed to consider Avhether there is error in said decree. Ordinarily, the attaching creditor-stands in the shoes of his debtor, so far as relates to the garnishee, aaIio is claimed to be a debtor to the debtor against Avhose estate the attachment issued. And when the existence of the debt alleged is controverted, as in this case, it is incumbent on the attaching creditor to prove it by satisfactory evidence just as it would be incumbent upon the debtor to prove the debt in a proceeding instituted by him against the garnishee to recover the alleged debt. The cause being on the equity side of the court it must be proceeded in, governed and determined according to the ordinary rules and principles governing courts of chancery in the absence of legislation to the contrary. According to the declaration of the decree, the court did not hear the cause upon parol or verbal evidence, given at the bar of the court, bat upon the papers in the cause and the “depositions of Avitnesses.” This Court must take the declaration of the decree as being true in this respect. This being the rule then, this Court in determining the cause, must consider that the court heard no evidence except the deposition or depositions of Avitnesses Avhich were filed in the cause. To ascertain Avhat the evidence was before the circuit court this Court must look alone to the record, and consider that the circuit court read no deposition or depositions except such as are disclosed by the record. If the record, as presented here, Avas not complete, and failed to contain all the depositions filed, and read, it Avas in the pOAver of the plaintiff to haAre had the omissions in the record, in this respect, supplied. It could have been done by certiorari. To ascertain, then, on Avhat evidence
“ Answer. I did; I was teller in said Bank; my impression is that it was in the form of a draft or note ; can’t say; if it has been, I know nothing of it; my impression is that he lived in Green Bottom, Cabell county; I saw him at Lewisburg in the summer of 1861, during the war, as colonel of cavalry; he did not return here again except on scouts during the war.
“ Second question by same. Please state the amount of the indebtedness to the Bank of Charleston from A. G. Jenkins, and when due ?
' “Answer. I,can’t give definite answer; I think it was four or five thousand dollars; I don’t remember whether it fell due during the year 1861.”
This is the entire evidence filed in the cause by the plaintiff in support of his allegation that the administrator of A. G. Jenkins is indebted to the Bank of Charleston, or rather Avas so indebted, at the time of the service of the order of attachment issued in the cause. In a word, this is all the evidence offered by the plaintiff in support of the issue on his part. There is no evidence in the cause shoAving when Jenkins died, except the official copy of the order of appointment and qualification of the administrator, (BoAvlin,) and that order Avas made the 10th day of September, 1866. It no Avhere appears
Some other questions have been raised and argued before us in this cause, but I regard them as not fairly arising. No question can. arise in the cause upon the statute of limitations until a debt is first established. For the foregoing reasons the decree of the circuit court of the county of Kanawha, rendered in this cause on the 2d day of April, 1872, mtist be reversed and annulled, and the appellant recover against the appellee, Robert M. Sims, his costs about his appeal here expended. And this Court, proceeding to render such decree as the said circuit court should have rendered in this cause, it is
Decree Reversed and Suit Remanded.