Altmeyer v. Caulfield
| Decision Date | 01 April 1893 |
| Citation | 17 S.E. 409,37 W.Va. 847 |
| Parties | ALTMEYER v. CAULFIELD et al. |
| Court | West Virginia Supreme Court |
Submitted January 23, 1893-
Syllabus by the Court.
1. An affidavit for an attachment is sufficient if it is in substantial compliance with the terms of, or necessarily and properly implies the case provided for by, the statute although it does not literally follow the language thereof.
2. An attachment can be sued out in equity against an absconding debtor by the accommodation maker of a negotiable note not yet due, although such maker has not yet paid such note, as he is absolutely bound to do so when it becomes due.
3. It is not a sufficient ground to quash an attachment because it does not technically use the words "in the suit," as that sufficiently appears from the filing of the affidavit in the suit, and stating therein that the affiant is justly entitled to recover the sum of $400 by virtue of a negotiable note describing it, and that the same is due and owing and wholly unpaid to affiant, and that affiant has instituted a suit in chancery for the purpose, and is about to issue an attachment in such suit; it further appearing that the attachment was issued in said chancery suit, and the debt was one that could be properly recovered therein.
4. The remedy by attachment being authorized alone by statute, and being in derogation of the common law, and being, moreover summary in its effects, and liable to be used oppressively such statute will be strictly construed. The preliminary affidavit required by the statute must contain each element thereby prescribed.
5. The first section of chapter 106 of the Code of 1868 was by act of March 24, 1882, amended and re-enacted so as to read "may have an order of attachment," etc., "on filing with the clerk of the court *** his own affidavit, or that of some credible person, stating the nature of the plaintiff's claim, and the amount at the least which the affiant believes the plaintiff is justly entitled to recover in the action or suit," etc.; the amendment being the insertion of the words "at the least," the affidavit must contain the words "at the least," or the equivalent thereof, being a material qualification of the essential element,--the amount stated. Dent, J., dissenting.
6. A safe rule in the construction of section 1 of chapter 106 as thus amended is to abide by the words the lawmaker has seen fit to use, so that no clause, sentence, or word shall be superfluous, void, or insignificant.
Appeal from circuit court, Ohio county.
Proceedings in attachment by P.J. Altmeyer against T. A. Caulfield and others. There was a decree quashing the attachment, and plaintiff appeals. Affirmed.
W. H Hearne, for appellant.
Caldwell & Caldwell, for appellee Brown & Simpson Co.
As the law was by the Code of 1868, (see section 1, c. 106, Code 1868,) the plaintiff was required, before being entitled to an order of attachment against the property of the defendant, to file with the clerk of the court his own affidavit, or that of some credible person, stating the nature of the plaintiff's claim, and the amount the affiant believes the plaintiff is justly entitled to recover in the action, etc. By the act of March 24, 1882, this section was amended so as to read as the law now is in that part of section 1, c. 106, Code 1891; that is, the words "at the least" were inserted immediately after the word "amount," so as to read, "stating the nature of the plaintiff's claim, and the amount at the least the plaintiff is justly entitled to secure in the action," etc., and made in that part of the section no other change whatever. The question is, is this phrase, like the phrase "as near as may be," merely a directory caution addressed to the affiant, which is not necessary to go into the affidavit, or is it intended to be put into the written statement as an essential qualification of that which must be stated and vouched for by the affiant's corporeal oath, viz. the amount he is justly entitled to recover? We think the latter the correct view, for the following reasons: The legislature is presumed to have possessed complete knowledge of the subjectmatter concerning which it has prescribed this rule of law, and that it has chosen its expressions with reference thereto, using no unmeaning words or phrases; and especially where the phrase in question is the only amendment made, the best rule to arrive at the meaning of the statute as amended is to abide by the words the lawmaker has used, so that no clause, sentence, or word shall be superfluous, void, or insignificant. The nature of the subject, the character of the statute amended, the context, and the effect and consequences of the statute, must be regarded; and, as we are to presume that the lawmaking power had some intelligent object in view, the end towards which this amendment was directed, and the cause which moved the legislature to make it, must also be considered in ascertaining the meaning in this regard of the act as amended. As to the general character of the act, it relates to Capehart v. Dowery, 10 W.Va. 130-135. It is summary in its effects, and liable to be abused and used oppressively; therefore ( Delaplain v. Armstrong, 21 W.Va. 211-213.) or, I may add, without being reduced by proper credits and counterclaims, thus destroying the debtor's business and credit, and causing his complete financial shipwreck, whereas by the ordinary proceeding of trial and judgment before seizure of his property his business would have been left intact, and his financial standing unimpaired. And the court, in a still later case, (Chapman v. Railway Co., 26 W.Va. 299-322,) commenting on these and other cases where this strict rule was applied, says, Judge Johnson delivering the opinion: "We do not desire to relax the rule in such cases; the affidavit lies at the very foundation." Under this section as it was before the amendment the creditor might swear that he was justly entitled to recover, say $500, the amount of the note sued on, when at the same time he owed the defendant $300, say for a piano; and so in other cases, especially cases of open accounts, or in cases of unliquidated damages. The words "at the least" were added to purge his conscience as to the amount due, giving in his written statement the true amount "at the least," after giving all credits and allowing all proper discounts, and not making loose and random statements as to the amount of damages he has suffered and is entitled to recover, as is often done in the writ and declaration,--a very important object when we consider how harsh and oppressive this ex parte proceeding may be made. Therefore the lawmaker has seen fit to put the affiant to the stress of giving in the written statement under oath the amount, and that this is the true amount "at the least;" and he is not excused for giving the full amount as it may appear justly due in the note or account sued on. But, more than that, it gives some effect to the words introduced as an amendment,--an amendment not of the common law, but of a statute,--and relieves the lawmaking power of the imputation of having done a vain and idle thing by making this one insertion, and yet leaving the statute in meaning and effect just as they found it. I therefore regard this qualification of the amount sued for just as essential and important in the eyes of the lawmaker as the amount itself, and the amount thus qualified must be stated in the affidavit. The phrase "at the least" qualifies the amount stated, and not the mode of statement. The affidavit is the foundation of the jurisdiction of the court, and there can be no valid attachment without a sufficient affidavit; and as there can be no sufficient affidavit which does not give a sworn written statement of the amount, so for the like reason such written statement of the amount, so for the like reason such written statement cannot be sufficient which leaves out what the legislature has thus seen fit to prescribe as a qualification of the amount so to be given, and the creditor cannot leave out such qualification as vain and futile. We think the judgment complained of is right, and ought to be affirmed.
Peter J. Altmeyer brought suit in equity against Thomas A Caulfield in the circuit court of Ohio county on the 21st day of October, 1891, and on the same day filed his affidavit in such suit, and sued out an attachment. The affidavit is as follows, to wit: ...
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