Grollman v. Lipsitz

• Decision Date: 21 March 1895
• Citation: 21 S.E. 272,43 S.C. 329
• Parties: GROLLMAN et al. v. LIPSITZ.
• Court: South Carolina Supreme Court

21 S.E. 272

43 S.C. 329

GROLLMAN et al. v. LIPSITZ.

Supreme Court of South Carolina

March 21, 1895

Appeal from common pleas circuit court of Beaufort county; D. A Townsend, Judge.

Attachments against A. J. Lipsitz by L. Grollman, M. Ferst's Sons & Co., D. O'Neill & Son, George W. Steffens & Son, Savannah Grocery Company, Savannah Steam Bakery Company, M. Hornik & Co., and Waterhouse & Danner and others. From orders vacating the attachments, plaintiffs appeal. Reversed.

The order in the case of John F. Werner & Co. v. A. J. Lipsitz was as follows:

"The plaintiffs in this action attached the property of the defendant, and this is a motion to vacate the attachment. The motion is based on several grounds. The first relates to the insufficiency of the undertaking; the second, to the exemption of the property under the homestead law; the third to the failure to show that a cause of action existed; the fourth, to the failure to show fraud; the fifth, to the omission to serve the defendant with copies of the affidavits and warrant; and the sixth, to the falsity of the matters stated in the affidavit which was relied on to show fraud on the part of defendant. The plaintiffs must rest the validity of the attachment on the status of the attachment proceedings at the time the warrant was issued. They cannot afterwards add anything to those proceedings by way of reply to motion papers or otherwise. Myers v. Whiteheart, 24 S.C 203. I shall therefore consider the case as it was when presented to the officer who issued the warrant. An inspection of the undertaking discloses the fact that the plaintiffs did not sign it. This is fatal, and it is null and void. Bank v. Stelling, 31 S.C. 369, 9 S.E. 1028; Wagener v. Booker, 31 S.C. 375, 9 S.E. 1055. In addition to this, the blanks in said undertaking render it of no binding force. Clawson v. Mining Co., 3 S. C. 420. There was therefore no jurisdiction, and the attachment was without authority, and must be vacated. I will notice briefly the other grounds relied on by the defendant. The next

ground, the second one, is that there was no affidavit to show that the property which, it is alleged, the defendant disposed of was subject to attachment, or, in other words was not a part of defendant's homestead. The omission was not fatal to issuing the warrant. The warrant might issue without such affidavit, but no part of the homestead could be legally attached. It does not appear directly and definitely whether any part of the homestead was attached or not. Defendant's third ground for this motion is the plaintiffs' failure to show, at the time the warrant was issued, that there existed a cause of action against the defendant in favor of the plaintiffs. I sustain this position. The affidavit was made by Mr. White, who does not swear to any personal knowledge of the cause of action, nor to any information received from the defendant himself, but only to hearsay from the plaintiffs and the clerk of defendant, without stating what they said, and to having seen a verified itemized copy of an account of plaintiffs against defendant. This is too general and indefinite, and is insufficient. Hence the attachment is invalid on that ground also. Code, § 250. The defendants' fourth and sixth grounds relate to the affidavit which was relied on by the plaintiffs to show fraud on the part of the defendant, and was made the basis of the warrant. This affidavit was made by L. Grollman. The first objection to it is that the matters therein alleged, even if true, do not show fraud on the part of the defendant; and the second is that those matters are not true. I sustain the first objection, for the reason that the said affidavit, standing alone, discloses nothing on the part of the defendant inconsistent with what he might find it reasonably necessary and proper to do at any time in the usual course of his business, and nothing to create suspicion in any unbiased mind. I sustain the second objection for the reason that the affidavit introduced by the defendant disproves many of the facts sworn to in the affidavit of L. Grollman, explains many others, and altogether shows clearly that there was no fraudulent intent on the part of the defendant in what he did. The fifth ground of the defendant is that no copy, either of the affidavit or warrant, was ever served on the defendant. This I think sufficient of itself to vacate the attachment. So far as I know, our supreme court has not decided this question, but they strongly intimate in Sharp v. Plamer, 31 S.C. 453, 10 S.E. 98, that copies should be served; and such seems to be the practice in New York. In re Flandrow, 92 N.Y. 256; Id., 84 N.Y. 1. Affidavits were offered in reply to defendant's affidavits. Objection was made to their introduction. I overruled the objection, but stated at the time that I would consider only so much thereof as was strictly in reply to the statements made in defendant's affidavits, and nothing that tended to supplement plaintiffs' case as first made, and I have done so. It is therefore ordered, adjudged, and decreed that the attachment herein be, and it is hereby, set aside and vacated. It is further ordered that the defendant have leave to apply at chambers for any orders that may be necessary to carry out this order. August 14, 1894. D. A. Townsend, Presiding Judge."

The orders made in other cases are as follows:

"M. Hornik & Co. v. A. J. Lipsitz. The plaintiffs in this case attached the property of the defendant, and this is a motion to vacate the attachment. This case was heard with several other cases at the same time. Among them was the case of Werner & Co. v. A. J. Lipsitz. to which I refer now for my opinion, and the reasons therefor, upon all the points raised in this case except the first, and my opinion in this case upon all these points except the first. The first point relates to the insufficiency of the undertaking. So did the first point in Werner & Co. v. A. J. Lipsitz. My opinion in that case was that the undertaking was defective; and my opinion is the same in this case as to that point, but it is based on a different reason. In this case it appears that S Rittenburg signed the firm name to the undertaking. This he could not do without proper authority, which nowhere appears. For this reason I consider the undertaking void. It is therefore ordered, adjudged, and decreed that the attachment in this case be vacated. It is further ordered that the defendant have leave to apply at chambers for such orders as may be necessary to carry out this order. D. A. Townsend, Presiding Judge."

D. O'Neill & Son v. A. J. Lipsitz. In this case the plaintiffs attached the property of the defendant, and this is a motion to vacate the attachment. An examination of the undertaking shows that it was not signed by the plaintiffs. This is fatal to the validity of the attachment, and it must be vacated. Other grounds have been urged for vacating the attachment, but the same have been taken in other cases which were heard at the same time with this case, and in these other cases I have decided against the validity of the attachment on all these points, and will not repeat here my reasons for so deciding, but will adopt what is said in Werner & Co. v. A. J. Lipsitz, Hornik & Co. v. A. J. Lipsitz, and M. Ferst's Sons & Co. v. A. J. Lipsitz on all these points as my decision in this case. It is therefore ordered that the attachment in this case be vacated. It is further ordered that the defendant have leave to apply at chambers for any orders necessary to carry out this order. D. A. Townsend, Presiding Judge."

Waterhouse & Danner v. A. J. Lipsitz. This is a motion to set aside an attachment. The attachment in this case is assailed on the same grounds as the attachments in several other cases which were heard with this case, viz.: Werner & Co. v. A. J. Lipsitz, M. Ferst's Sons & Co. v. A. J. Lipsitz, Hornik & Co. v. A. J. Lipsitz, D. O'Neill & Son v. A. J. Lipsitz, and still other cases. In these last-named cases I have decided all the points raised in this case, and I refer to them for my opinion and my reasons therefor, and I adopt for this case what was said in those cases on the point now raised in this case. It is therefore ordered that the attachment in this case be vacated. It is further ordered the defendant have leave to apply at chambers for any further order that may be necessary to carry out this order. D. A. Townsend, Presiding Judge."

L. Grollman v. A. J. Lipsitz. This is a motion to vacate an attachment. The plaintiff attached the defendant's property. In this case the undertaking was not under seal, nor was there a subscribing witness thereto, nor did the plaintiff serve copies of the warrant and of the affidavit on the defendant; and the affidavit on which the warrant was issued was insufficient, and hence the attachment is null and void, and must be vacated, and it is so ordered. In other cases heard with this one, these points have been made, and I refer to those cases for my opinion on all these points and my reasons therefor. It is

therefore ordered that the attachment in this case be vacated. It is further ordered that the defendant have leave to apply at chambers for any order necessary to carry out this order. D. A. Townsend, Presiding Judge."

Savannah Grocery Company v. A. J. Lipsitz and Savannah Steam Bakery Company v. A. J. Lipsitz. Both the above cases were heard together, and with several others. In both the motion is to vacate an attachment of the defendant's property by the plaintiffs. The grounds of the motion are the same in both, and have been decided in the cases of Werner & Co. v. A. J. Lipsitz, M. Ferst's Sons & Co. v. A. J. Lipsitz, Hornik & Co. v. A. J. Lipsitz, L. Grollman v. A. J. Lipsitz, D. O'Neill & Son v. A. J.

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