Booker v. Smith
| Decision Date | 16 January 1893 |
| Citation | 38 S.C. 228,16 S.E. 774 |
| Parties | BOOKER . v. SMITH, (two cases.) |
| Court | South Carolina Supreme Court |
BOOKER .
v.
SMITH, (two cases.)
Supreme Court of South Carolina.
Jan. 16, 1893.
Attachment Bond—Validity—Estoppel.
1. Under Code, § 251, which requires an attachment bond to be signed by the plaintiff with sufficient surety, such a bond is a nullity if signed only by a stranger, and no suit thereon can be maintained.
2. Where, in a suit on such a bond, a demurrer is interposed on the ground that the complaint does not state a sufficient cause of action, it cannot be contended that, though a nullity as an attachment bond, it is valid as a common-law bond, when no allegation to that effect is made in the complaint.
3. Equity will not enforce liability on such a bond when it appears that the plaintiff in the attachment suit, after he discovered the bond was irregular, moved to amend it so as to have it perfected according to law, which motion the defendant in that suit (plaintiff here) opposed, and the attachments were dissolved, and judgment entered for defendant in that suit for costs and disbursements, which judgment was paid.
Appeal from common pleas circuit court of Abbeville county; J. H.Hudson, Judge.
Action by Edward H. Booker against Augustus W. Smith, and by same plaintiff against same defendant, to recover on attachment bonds. From a judgment entered on orders sustaining demurrers to the complaints, plaintiff appeals. Affirmed.
Graydon & Graydon, for appellant.
Parker & McGowan, for respondent.
Meetze, J. These cases involve the same questions, and are precisely the same
[16 S.E. 775]in every particular, except in one of them the name of Augustus W. Smith, the respondent, has a seal after it, while the other has not. They were therefore heard together. In order that a proper understanding may be had of the points decided, it is necessary that one of the complaints should be sot out in full.
"Edward H. Booker, the plaintiff herein, by Graydon & Graydon, his attorneys, complaining of Augustus W. Smith, the defendant aforesaid, alleges: (1) That, heretofore an action was commenced in this court by F. W. Wagener and George A. Wegener, partners, doing business under the firm name of F. W. Wagener & Co., for the recovery of money against this plaintiff, wherein the said F. W. Wagener & Co. made application to Thomas L. Moore, Esq., clerk of this court, for a warrant of attachment against the property of this plaintiff, whereupon the aforesaid defendant then and there executed and filed with said clerk, for the benefit of this plaintiff, pursuant to the requirements of section 251 of the Code of Procedure, a written undertaking, a copy of which is hereto annexed as a part of this complaint, and marked Exhibit A.' (2) That, pursuant to said application and undertaking, the said clerk issued a warrant of attachment dated March 1, 18S9, and directed to the sheriff of the said county of Abbeville, whereby the said sheriff was required to attach and safely keep all the real and personal property of this plaintiff not exempt by law from execution, or a sufficient amount thereof to satisfy the demand of said F. W. Wagener & Co. in said action, to wit, the sum of four hundred and fifty-nine 48-100 dollars, with interest thereon from January 10, 1880, together with all costs and expenses. (31 That at the time of issuing the said attachment this plaintiff was engaged as a merchant in selling general merchandise at retail in the town of Donnalds, in said county. (4) That the sheriff of said county, pursuant to said warrant of attachment, entered said store, and attached the whole stock of goods of this plaintiff, worth at cost price more than two thousand dollars, and also attached other property, real and personal, of plaintiff, to the value of about one thousand dollars. (5) That said sheriff closed up the store of plaintiff, and deprived him of the possession of said stock of goods for about five months. (6) That by said seizure by the said sheriff the business of the said plaintiff was utterly broken up and destroyed, the said goods became unmarketable, the plaintiff was put to much trouble and expense in defending said proceeding, and this plaintiff's credit was greatly injured, to his damage two hundred and fifty dollars. (7) That such proceedings were had in the special proceeding aforesaid that on the 20th day of July, 1889, the said attachment was vacated and dissolved by the order of the court. (8) That before the commencement of this action the plaintiff duly demanded of said defendant the 6aid sum of two...
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