87 S.E. 1002 | S.C. | 1916
February 25, 1916. The opinion of the Court was delivered by This is an appeal from an order of his Honor, Judge Moore, sustaining an order of the magistrate in refusing to dissolve an attachment issued in the case. The defendant-appellant lived at Clinton, S.C. where for a number of years he was employed as superintendent of the Lydia Cotton Mills and a master machinist at the Clinton Cotton Mills. On February 2, 1915, it is alleged that he moved to Lexington, N.C., where he procured employment. His son lived with him at Lexington, N.C., but his wife and several of his children remained at Clinton, S.C. This action was commenced in the magistrate's Court, at Clinton, S.C. on April 2, 1915, to recover the sum sued for on an open account. The magistrate issued an attachment, based *182 on a verified statement of account, and a separate affidavit of J.T. Robertson, secretary and treasurer of the plaintiff corporation.
The plaintiff gave the required undertaking, as required by the magistrate, in the sum of $25.00. On April 2, 1915, some household and kitchen furniture, consigned to the plaintiff at Lexington, N.C., and in the depot at Clinton, S.C. was levied upon by magistrate's constable under the warrant of attachment. On April 15, 1915, the defendant was personally served with the summons and complaint, affidavit and warrant of attachment at Lexington, N.C., where he and his son were and had been since February 2, 1915, and where he was at that time regularly employed. On April 17, 1915, the defendant, through counsel, made a special appearance, and upon affidavit of appellant's wife, and the affidavits upon which the warrant of attachment was issued moved before the magistrate to dissolve, set aside and dismiss the attachment.
The motion was upon five grounds. The magistrate refused the motion; the defendant appealed to the Circuit Court; Judge Moore sustained the magistrate, and by an order, May 29, 1915, affirmed the magistrate, from which defendant appeals, and urges the same grounds he relied upon before magistrate and Circuit Judge.
The first exception raises the point that the affidavit upon which the attachment was issued was fatally defective, in that the allegations therein were made upon information and belief, and that the resources of information were not stated. The magistrate and Circuit Court both held that the affidavit stated plainly that the defendant was a nonresident of the State of South Carolina, and that this allegation was not made upon information and belief.
A reference to the affidavit shows that the interpretation placed upon it by them was the correct one. The ground that he was a nonresident was directly alleged, the affidavit *183 alleges two grounds for the attachment, nonresidence of the defendant, and attempted fraudulent removal of the defendant's property.
The allegation of nonresidence of the defendant is sufficiently alleged, and this is sufficient ground for attachment.Roddy v. Ervin,
This exception is overruled.
The second exception contends that the defendant was not a nonresident at the time the attachment was issued, but only temporarily absent from the State. The defendant's wife makes affidavit to sustain this contention, he makes no affidavit. His Honor, Judge Moore, refused to vacate the attachment on this ground, and, as far as this Court is concerned, for the purpose of the matters now before it, this allegation is conclusively established, being a matter of fact, no question can be made in this Court thereon. Norris v. Levin's Sons,
This is, however, only a ruling on the preliminary question now before the Court, and is without prejudice to the defendant on the merits; and if he is not a nonresident, on the trial of the case on the merits he can establish that fact, and if he succeeds in doing so, and shows that he is the head of a family residing in this State, then his right of homestead is intact and unimpaired. This, however, being a law case, it cannot be reversed, where there is any evidence to sustain the Circuit Judge's finding. This exception is overruled.
The third exception is overruled, for the reason stated by the Circuit Judge.
Exception four is overruled, under section 282, Code Civ. Proc., 1912. The magistrate complied with this section, and if it was thought undertaking was insufficient, then the remedy should have been by motion to increase it and not made a ground to dissolve. *184
The fifth, sixth and seventh exceptions are overruled, for the reasons stated in overruling the other exceptions.
Judgment affirmed.