American Indus. Leasing Co. v. McElroy, 12785

Citation152 W.Va. 587,165 S.E.2d 617
Decision Date04 February 1969
Docket NumberNo. 12785,12785
CourtSupreme Court of West Virginia
PartiesAMERICAN INDUSTRIAL LEASING COMPANY, a Corporation v. Ray McELROY, Constable of Grant District, Monongalia County, West Virginia.

Syllabus by the Court

1. Where a distress warrant is issued by a justice of the peace to a constable directing his to sell sufficient goods and chattels of the tenant as may be found on the premises of the landlord to satisfy a debt for past due rent, it is the mandatory duty of the constable to proceed with such sale unless a doubt arises in his mind as to whether such property is liable to a levy and such doubt is sufficient to require the landlord to post an idemnifying bond if the constable has reason to believe that a third party is asserting a claim to the goods and chattels or that they are exempt by statutes from levy.

2. Whether or not one may intervene in an original proceeding is a matter left to the sound discretion of the court.

3. Facts alleged in a petition are generally taken as true where no responsive pleading is interposed by the party against whom the allegations were made.

4. 'To entitle one to a writ of mandamus, the party seeking the writ must show a clear legal right thereto and a corresponding duty on the respondent to perform the act demanded.' Point 4, Syllabus, State ex rel. Zaqula v. Grossi, 149 W.Va. 11 (138 S.E.2d 356).

Robert T. Donley, Morgantown, Howard R. Klostermeyer, Charleston, for relator.

No appearance for respondent.

CAPLAN, Judge:

In this original proceeding in mandamus the petitioner, American Industrial Leasing Company, a corporation, seeks a writ to compel the respondent, Ray McElroy, a constable of Grant District, Monongalia County, West Virginia, to offer for sale at public auction the goods and chattels of Beechurst Avenue Joint Venture levied upon by him on May 23, 1968. A rule was granted returnable January 8, 1969, at which time this case was submitted for decision upon the petition, the exhibits attached thereto and the brief of the petitioner. This matter was not argued orally nor was there any appearance by or on behalf of the respondent.

The petitioner, a corporation duly organized and existing under the laws of the State of West Virginia, is the owner of a tract of land in the City of Morgantown, West Virginia on which is located a student dormitory building. By lease dated February 1, 1966, the petitioner leased said student dormitory building to Robert H. Law, John H. Junkins, William E. Dixon and Harry Meeks, partners trading and doing business as Beechurst Avenue Joint Venture. All of the partners are nonresidents of the State of West Virginia. The lessee became delinquent in the payment of rentals under the lease and the lease was terminated on May 1, 1968 as provided under the terms thereof. The petitioner reentered and took possession of the demised premises. It is alleged in the petition that there is due and owing from said Joint Venture for rent the sum of $84,167.67, plus interest.

On May 23, 1968 the petitioner filed the affidavit of S. L. Peterman, its president, with William M. Bowers, a justice of the peace of Morgan District, Monongalia County, in which it was averred that there was due and owing from Joint Venture to said American Industrial Leasing Company the sum of $69,140.80 for rent on the petitioner's premises. Thereupon a distress warrant was issued by the justice of the peace directing any constable of Morgan District to distrain so much of the goods and chattels of Beechurst Avenue Joint Venture as may be found upon the demised premises to satisfy the amount of rent due and owing and the costs of the distress warrant. It is further stated in the petition that the amount noted in the affidavit was inadvertently and erroneously computed to be $69,140.80, whereas, in fact, it should have been in the amount of $84,167.67.

After the distress warrant was delivered by the justice to the respondent, the said respondent, Ray McElroy, levied upon certain goods and chattels of Joint Venture which were found on the petitioner's property. He also posted a notice at the front door of the courthouse of Monongalia County and at the demised premises that he would offer the goods and chattels for sale at public auction on June 13, 1968.

The petitioner further alleges that notwithstanding the levy and notice of sale the respondent thereafter refused to proceed with the sale and 'unlawfully and wrongfully arbitrarily and capriciously demanded that petitioner post with him an indemnifying bond although said Beechurst Avenue Joint Venture did not give nor offer to give a forthcoming bond as provided by the 1931 Code of West Virginia as amended, Chapter 38, Article 6, Section 7 * * *'. The petitioner says that no third party has asserted any claim, right or title to the goods and chattels levied on, nor is such property exempt from levy under Code, 1931, 38--8--1.

It is the position of the petitioner that in the absence of the assertion of some claim of ownership or title by a third person to the goods and chattels distrained upon for past due rent and upon the failure of the tenant to give a forthcoming bond, it is the legal duty of a constable into whose hands a valid distress warrant is delivered to execute the distress warrant by advertising and selling at public auction the goods and chattels levied upon. Respondent McElroy, says the petitioner, has no lawful right or authority in the circumstances of this case to require an indemnifying bond of the petitioner.

It is alleged by the petitioner that the levy and notice of sale cannot be found in the files of the justice of the peace. Therefore, the petitioner prays in the alternative that in the event the original levy cannot be located the respondent be required to re-levy upon said goods and chattels and to post...

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6 cases
  • State ex rel. Nelson v. Ritchie
    • United States
    • West Virginia Supreme Court
    • December 8, 1970
    ...the facts, not being denied, must be considered as true for the purposes of this proceeding. See American Industrial Leasing Company v. McElroy, 152 W.Va. 587, 165 S.E.2d 617. The defendant alleges in his answer that though there has been delay in the selection of a definite site for the lo......
  • State ex rel. Withers v. Board of Educ. of Mason County
    • United States
    • West Virginia Supreme Court
    • April 21, 1970
    ...right in himself to the relief he seeks and a corresponding duty of the respondent to perform the act demanded. American Industrial Leasing Company v. McElroy, 152 W.Va. 587, pt. 4 syl., 165 S.E.2d 617; State ex rel. Zagula v. Grossi, 149 W.Va. 11, pt. 4 syl., 138 S.E.2d 356. Mandamus does ......
  • State ex rel. Cooke v. Jarrell, 12982
    • United States
    • West Virginia Supreme Court
    • October 27, 1970
    ...to make such payment. Such showing must be made to support the granting of a writ of mandamus. American Industrial Leasing Company v. McElroy, 152 W.Va. 587, 165 S.E.2d 617; State ex rel. Waller Chemicals, Inc. v. McNutt, 152 W.Va. 186, 160 S.E.2d 170; State ex rel. Zagula v. Grossi, 149 W.......
  • Rosenbaum v. Present Common Council of Town of East Bank
    • United States
    • West Virginia Supreme Court
    • December 2, 1969
    ...whom the writ of mandamus is sought. State ex rel. Murray v. Public Service Commission, W.Va., 168 S.E.2d 559; American Industrial Leasing Company v. McElroy, 152 W.Va. 587, pt. 4 syl., 165 S.E.2d For reasons stated in this opinion, the writ of mandamus prayed for is denied. Writ denied. BR......
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