Woodworth v. Skeen

150 S.E. 764 | S.C. | 1929

December 11, 1929. The opinion of the Court was delivered by This is an appeal from an order of his Honor, Judge Dennis, refusing a motion by the defendant to vacate an attachment upon the ground that it was irregularly issued, in that the affidavit does not comply with the statute, in that it does not thereby appear that a cause of action exists against the defendant.

The complaint is verified and is made a part of the affidavit for attachment by reference; it may therefore be considered in determining whether a cause of action is stated.

The affirmation is that the defendant "negligently and carelessly and in violation of law, in the following particulars, to wit (a) By running at a dangerous speed in the circumstances, ran into the truck of the plaintiffs" and damaged it.

It may be questionable whether the affirmation would have been sufficient if the affidavit had stopped with the allegation that the defendant's car had been negligently run into the truck of the plaintiffs; without a statement of the facts from which this inference could legitimately be drawn, it may have been considered as a legal deduction of the deponent; but, when it is proposed to set out the facts, it should be done in a way that would induce such deduction.

All that is affirmed is that the car was being run in violation of law at a speed rendered dangerous by the circumstances, which are not detailed.

The motion should have been granted, and the order refusing it is reversed. See Edgefield v. Power Co., 104 S.C. 311,88 S.E., 801; Scott v. R. Co., 67 S.C. 136,45 S.E., 129; Bank of Saluda v. Feaster, 87 S.C. 97,68 S.E., 1045; Williams v. Carlson, 118 S.C. 46, 110 S.E., 69;Jones v. Atlantic Coast Line Lumber Co., 92 S.C. 418,75 S.E., 698; Ragin v. N.W. Ry. Co., 111 S.C. 394,98 S.E., 286; Cudd v. Rogers, 111 S.C. 507, 98 S.E., 796;McGregor v. State Co., 114 S.C. 48, 103 S.E., 84; Rankinv. S. K.R. Co., 58 S.C. 532, 36 S.E., 997; Donaldsonv. Temple, 96 S.C. 240, 80 S.E., 437; Alexander v. DuBose,73 S.C. 21, 52 S.E., 786; and Steele v. Kirven, 120 S.C. 88,110 S.E., 837.

MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE, STABLER and CARTER concur.