81 W. Va. 46 | W. Va. | 1917
The appellant, the Yellow Pine Lumber Co., a corporation, brought this suit in equity with an attachment, to subject certain real estate of the defendant, J. K. Mays, to the payment of a note for $236.41 and an open account amounting to $43.97. The property was subject to a vendor’s lien in favor of R. W. Edmunds and Ruth P. Thomas for $600.00, with interest amounting to $117.00, at the date of the commissioner’s report. Edmunds had another superior claim for taxes paid on the property, amounting to $40.21. Seeking the benefit, of' a judgment lien in favor of the Elk Banking Co., for $100.00, by way of subrogation, C. A. Ellis filed a petition in the cause, and the principal controversies arise between him and the plaintiff. Mays made no defense in the principal suit. On the contrary, he filed an answer admitting the indebtedness for which the attachment was issued and levied. He resisted the claim of Ellis vigorously, how
The procedure in the attachment suit and in the intervention is statutory. Neither party has any right beyond, that given by the statute. Only a person interested within the meaning of the statute can intervene. He must claim,
To obtain an adjudication upon the question of the validity ■of the attachment, the intervener must establish his claim. If he has no such interest as .the statute contemplates and protects, it is wholly immaterial to him whether the attachment is good or bad, and the court cannot hear him speak as a mere intermeddler between the litigating parties. He must file a petition stating the facts necessary to the establishment of the right he claims and sustain the averments thereof by documentary or oral evidence or both, as the nature of his case may require, and such issues of fact, arising on his petition, as are proper for jury determination must be disposed of by a jury trial, unless the right of such trial is waived.
If the averments of the petitions, taken as true, were sufficient to show right in the petitioner to the benefit of the judgment lien in favor of the bank, he had an incontestable right to file them and to dispute the validity of the plaintiff’s attachment, and, on the establishment of his lien to have an appropriate order made for protection of his rights. Code, ch. 106, sec. 23. But, if the averments of his petitions were insufficient in law to constitute a lien or right in him, respecting the attached property, the court, oh a proper objection interposed by the attaching creditor, should have refused to permit them to be filed. Chapman v. Pittsburg & S. Railway Co., 26 W. Va. 299; Smith v. Parkersburg CoOp. Ass’n., 48 W. Va. 232, 250; Crim v. Harman, 38 W. Va. 596.
The' facts stated in the petitions and admitted to be true, for the purposes of the demurrer thereto, give the petitioner right to enforce the lien of the judgment for his benefit. They are, substantially, that Mays was the principal debtor in the judgment and that the petitioner, his surety, has been compelled to satisfy the judgment. Having paid it, he is entitled to be subrogated to the rights of the bank, and the
Though, on their faces, both petitions were sufficient, the facts averred therein are disputed. The plaintiff and the principal defandant endeavored to raise issues respecting them by filing answers to the amended petition. These answers were unnecessary. On an intervention of this kind, no pleadings other than the petition are necessary or proper. On it, both parties may introduce all relevant, material and admissible evidence. Code, ch. 106, sec. 23; Lipscomb v. Condon Etc. Co., 56 W. Va. 416, syl. point 15.
Depositions returned Avith the commissioner’s report disclose resistance of the intervener’s claim, by the plaintiff, on two grounds: (1), lack of jurisdiction in the justice who entered the judgment on his docket, to render the same.; and (2), lack of right in the petitioner to be subrogated to the
As the first one involves contradiction of the officer’s re-, turn, it is not available and cannot be admitted. The return of a constable on a summons issued by a justice, in a case in which he has jurisdiction of the subject matter, stating that' he executed it by delivering a copy thereof to the defendant on a certain day, is conclusive evidence of a proper service, in a - collateral attack upon the judgment founded thereon. Milling Co. v. Read, 76 W. Va. 557. A sheriff’s return is conclusive in a direct attack upon a judgment of a court of general jurisdiction. Talbott v. Southern Oil Co., 60 W. Va. 423. As to whether the return of a substituted service is conclusive of the question of the defendant’s residence, the authorities in other jurisdictions are in conflict. Vanfleet, Col. Attack, sec. 476. Whatever the rule'may be in direct attack, in such cases, very weighty considerations deny right to attack upon that ground in “a collateral proceeding. The" defandant has neglected the opportunity afforded him by the law to assail the judgment directly. Having done that, he comes into a collateral proceeding, for the purpose, without a good excuse, and after the judgment creditor and others dealing with him have had reason to believe no such attack was contemplated. If it is permitted, there is scarcely any limitation upon the time of the attack. Decisive evidence as to the fact in issue may have been lost by the death of witnesses or otherwise and the rights of third parties may have intervened. For these reasons, the
One of the assignments of error is based upon the refusal of the court to sustain an exception to the report of the commissioner, interposed before entry of the decree, because the claim set up in the petition was not inquired into and determined by a jury. In +he first instance, the commissioner passed upon the issues and, in the rendition of the final decree, the court passed upon them. In the absence of a waiver of the right of trial by jury, entered of record, either party may insist upon it, and a trial by the court, without such waiver, is erroneous. Code, ch. 116, sec. 29; Lipscomb v. Condon Etc. Co., 56 W. Va. 416, 445: A recital in the record that neither party required a jury and that the court was substituted in lieu thereof, is sufficient. King v. Burdette, 12 W. Va. 688. If the court has tried a case and the record is silent as to whether there was such waiver or not, it will be presumed that the statute was complied with. Phelph & Pound v. Smith & Co., 16 W. Va. 522. In the case last cited, the waiver may have been entered of record and the order showing it omitted from the transcript. The statute requires the consent to be entered of record, and, in this case, the procedure is not aided by any presumption, since the suit is one in equity and the entire record is here.
Literally, the statute refers the whole inquiry as to the validity of the petitioner’s claim, to a jury, but the effect of documentary evidence is a question for the court, and the jury’s function is limited to issues dependent upon oral evidence. Miller v. White, 46 W. Va. 67, 72.
The intervener’s right was further contested on the ground of alleged failure to file a sufficient bond to secure costs. The motion to require a larger bond and better security was not supported by any evidence, wherefore it cannot be perceived that the court erred in overruling it.
As the issue raised by the intervener was not legally dis
Though a court may ex mero motu quash an irregular attachment in a case in which there has been no appearance, McAllister v. Guggenheimer, 91 Va. 317, the trial court did not, in this case, do so in that way. It sustained a motion of the intervener, notwithstanding the appearance of the defendant, his admission of the debt and acquiescence in the attachment. If the intervener is not entitled to the lien of the judgment, he has no right to call upon the court for any adjudication between the other parties, and the court could not say, as between them, the supplemental affidavit would not sustain the attachment, merely because it was a new one.
As Wygal filed no petition setting up the lien of his judgment, his claim was not properly before the court at all. Edmunds and Edmunds and Thomas .should have filed petitions also. The suit is a special statutory one, not a credit- or’s suit nor one to enforce judgment liens. To protect their interests in it, lienors must come in under the provisions of the statute referred to. As in other cases, issues may be dispensed with by waivers and stipulations. In other words, title and liens claimed, prior or subsequent, may be admitted. Of course, there may be conditions justifying a reference to a commissioner, but the liens and other claims must be set up in the manner prescribed by the statute.
For the reasons stated, the decree complained of, the orders quashing the- plaintiff’s attachment, sustaining the demurrer to the intervener’s original petition and referring
Reversed and remanded.