38 W. Va. 84 | W. Va. | 1893
This was a petition filed by the United States Baking Company under section 152, c. 50, of the Code, to try the right of certain property levied on under an attachment sued out by P. Baclnnan & Sons against M. Merkel and the "Wheeling Bakery Company before W. IT. Caldwell, justice of the peace for Madison district, Ohio county.
The United States Baking Company in its petition alleges, that it was, when said attachment was issued, and has been ever since the owner of the property levied on by virtue of said attachment; while P. Bachman & Sons on the other hand claim, that they ate entitled to said property by virtue of the lien created by the levy of said attachment. The Wheeling Bakery Company moved to quash'the attachment, which motion the justice overruled; and after hearing the evidence he ordered, that the officer, who levied said attachment, do deliver the property to the United States Baking Company. From this judgment P. Bach-man & Sons appealed to the Circuit Court of Ohio county, which . court affirmed the judgment of the justice and ordered that the property be delivered to the United States Baking Company. The defendants P. Bachman & Sons moved the court to set aside the order and judgment, and to grant them a new trial, which motion was overruled. Said P. Bachman & Sons excepted and obtained this writ of error.
The first error assigned and relied upon by the plaintiffs in error is the action of the court in refusing to dismiss said petition of interpleader' and the proceedings thereunder. In considering the question raised by this assignment of error let ns first inquire into the validity of the attachment-proceedings, under which said P, Bachman & Sons-claim a lien upon the property in controversy, as their only claim to thejproperty is by virtue of said attachment.
Was the affidavit, upon which the attachment was predicated, sufficient to authorize an attachment? Section 193, c. 50, of the Code, under which this attachment was issued, provides: “If the plaintiff at the commencement of his action or at any time during its pendency and before judgment show to the justice by his own affidavit or the
Now, the effort was made in suing out this attachment to si tow, that the plaintiff was entitled to an order of attachment against the Wheeling Bakery Company as a cor-’ poration under said last-named section. Did the affidavit filed by the plaintiff in this case show to the justice, that-said Wheeling Bakery Company or'its property real or personal was liable to an attachment in like manner as the property of a non-resident defendant'!1 The affidavit, upon which said attachment is predicated, docs not show when said Wheeling Bakery Company was organized, and by the statute it was allowed o.ne hundred days after its organization to appoint an agent or attorney under said section, before it would be liable to an attachment thereunder; and,
While it is true, that a failure to appoint such person by power of attorney, as required by said section, would render the property of such corporation liable to an attachment as the property of a 11011-resident defendant, the affidavit would not be in accordance with the requirements of said section 37 of chapter 54, if it merely stated, that the defendant was a non-resident. Neither can it be regarded as sufficient, when it simply states, that the Wheeling Bakery Company has failed to appoint and have according to law in the state of West Virginia a person to accept, service on its behalf, and 011 whom service might be had of process or notice against it according to law, for the reason that it does not appear by the affidavit, when the defendant company was organized, and it does not appear that more than one hundred days had elapsed since its organization; and, unless this is made to appear by the affidavit, it may be true that such person had not been appointed as required by law, to accept service, etc.; and yet the property of said company would not be liable to attachment, because the failure to make such appointment would not appear to be of such duration as to make such property liable to attachment.
The affidavit under consideration contains none of the allegations required l)3r section 193 of chapter 50 of the Code as to fraud or non-residence, and, as it does not comply with section 37 of chapter 54 of the Code, which is requisite to show fjhat the property of the baking company was liable to attachment under that section, vre must regard it as insufficient to authorize an attachment.
The affidavit must bo sufficient in itself and on its face to authorize the order of attachment; it can not he supplemented by additional proofs or affidavits. See Cosner’s Adm’r v. Smith, 36 W. Va. 788 (15 S. E. Rep. 977). The only claim asserted by said P. Bachman & Sous to the property in question being by reason of the levy of said order of attachment, and that being, as we think, irregular and unauthorized by law and constituting no lien upon said property, and as there is no controversy between the Wheeling Bakery Company and the United States Bakery Company as to the ownership of the property, the latter being in possession, and the proof showing that the property hadbe-longed to the latter since the 10th day of September, 1890, we think the court committed no error in ordering said property to be delivered to said United States Baking Company ; aud the judgment complained of must be affirmed, with costs and damages.