Andrews v. Mundy

• Decision Date: 03 February 1892
• Citation: 36 W.Va. 22,14 S.E. 414
• Parties: Andrews et al. v. Mundy et al.
• Court: West Virginia Supreme Court

14 S.E. 414

36 W.Va. 22

Andrews et al.

v.Mundy et al.

Supreme Court of Appeals of West Virginia.

Feb. 3, 1892.

Attachment — Affidavit — Non-Resident Partner—Firm Creditors—Order of Publication.

1. A partnership consists of two members, one of whom is a non-resident, but the other is found by the verdict of a jury to be a resident of this state. A firm creditor issues an attachment against the firm, and levies it upon the social assets. Held, the attaching creditor does not thereby gain any priority over other firm creditors, except as to the individual interest of the non-resident partner.

2. When such an action is brought, and service of the writ is had upon only one partner, order of publication should be had against the other partner, as prescribed by the statute; but if both partners appear by attorney, and submit motions or file a plea, this is an appearance to the suit, and the court may proceed as if both parties had been served.

3. In order to sustain an issue that a party is not a non-resident, he has only to establish the fact of actual residence in this state under such concomitant circumstances as make it entirely practicable to serve him with process, and to reach his property according to the course of the common law. If a man's family has been removed to this state, or if, having no family, he has himself removed here, and entered into business, and his means and property have been brought here, and he dwells here, and his business engagements in this state are such as to render his stay wholly uncertain and indefinite as to duration, he is not a non-resident of this state, within the purview of the attachment law.

4. Submitting to the jury particular questions of fact, under our statute, is within the discretion of the trial court, subject to review; but it is not erroneous to refuse to permit such questions to be propounded when they are immaterial or irrelevant, and unless the answers thereto, if contrary to the general verdict, would control the same and be conclusive of the issue.

5. The following affidavit, as the basis of an attachment, is held to be a substantial compliance with the statute, so far as concerns the non residence of the defendants: "State of West Virginia, Waynecounty, to-wit: Joseph A. Lowry, agent for Andrews, Bates & Co., being first duly sworn, says that the said Andrews, Bates & Co. has instituted an action at law against J. A. Mundy, Jr., & Co. for the recovery of a claim or debt arising out of contract, in the circuit court of Wayne county; and affiant further says that the nature of the said plaintiffs' claim is as follows: For goods sold and delivered to said J. A. Mundy, Jr., & Co.; and that affiant believes the said plaintiffs, Andrews, Bates & Co., are justly entitled to recover in the said action at least the amount of $2,623.74, with interest until payment; and that the affiant believes that the defendants are non-residents of the state of West Virginia, and is converting, or is about to convert, their property, or a material part thereof, into money or securities, with intent to defraud their creditors; and has assigned or disposed of their property, or a material part thereof, or is about to do so, with intent to defraud their creditors. Subscribed and sworn to before me this 16th day of January, 1891. "

(Syllabus by the Court.)

Error to circuit court, Wayne county.

Assumpsit by Andrews, Bates & Co. against J. A. Mundy, Jr., & Co. for goods sold and delivered. Attachment being levied, issue was joined on the grounds therefor stated in the affidavit. Verdict for defendants abating the attachment. Plaintiffs bring error. Affirmed.

Marcum & Peyton, for plaintiffs in error.

G. G. Burgess, Lace Marcum, and Campbell & Holt, for defendants in error.

Lucas, P. The firm of Andrews, Bates & Co., who are plaintiffs in error in this court, brought an action of assumpsit against J. A. Mundy, Jr., & Co., partners, (the firm consisting of J. A. Mundy, Jr., and C. D. Mundy,) in the circuit court of Wayne county. The service was had upon C. D. Mundy in person, but J. A. Mundy was returned, "Not found.'" On the 16th day of January, 1891, the plaintiffs made affidavit and sued out an attachment against the property of the defendants. The affidavit is as follows: "State of West Virginia, Wayne county, to-wit: Joseph A. Lowry, agent for Andrews, Bates & Co., being first duly sworn, says that the said Andrews, Bates & Co. has instituted an action at law against J. A. Mundy, Jr., & Co., for the recovery of a claim or debt arising out of contract, in the circuit court of Wayne county; and affiant further says that the nature of the said plaintiff's claim is as follows: For goods sold and delivered to said J. A. Mundy, Jr., & Co.; and that affiant believes the said plaintiffs, Andrews, Bates & Co., are justly entitled to recover in the said action at least the amount of $2,-623.74, with interest until payment; and that the affiant believes that the defendants are non-residents of the state of West Virginia, and is converting, or is about to con vert, their property, or a material part thereof, into money or securities, with intent to defraud their creditors; and has assigned or disposed of their property, or a material part thereof, or is about to do so, with intent to defraud their creditors. Subscribed and sworn to before me this 16th day of January, 1891. J. H. Mills, Clerk Wayne Circuit Court." Bond was given, and the property was taken possession of by the sheriff, consisting of horses, mules, and other property appropriate for a contractor on a railroad. The bond was objected to, and, being defective on its face, the court sustained the objection; but allowed the plaintiffs forthwith to give a proper bond, with security approved by the court, and the sheriff made a second levy on the same property, and retained the same in his possession. To the second bond there seems to be no objection, but the defendant C. D. Mundy moved the court to make the plaintiffs elect upon which order of attachment they would proceed; but the court denied the motion, and the defendant C. D. Mundy, who alone up to this point had appeared, excepted to this action of the court. The same defendant, through his counsel, moved to quash the return of the sheriff on the two orders of attachment; but the court refused to quash, and allowed the sheriff to amend by inserting in said returns, after the words, "as the property of J. A. Mundy, Jr., " the following words, to-wit, "and CD. Mundy." At the February term the defendants filed a plea in abatement, which is as follows: "J. A. Mundy, Jr., & Co. ad vs. Andrews, Bates & Co. C. D. Mundy, one of the defendants, comes in his own proper person, and, desiring to controvert the existence of the grounds for the attachment stated in the affidavit, denies that the said defendants are nonresidents of the state of West Virginia, and this the said defendants are ready to verify." Upon this plea the issue was made up, and the case was tried by a jury, evidence heard, and a verdict returned for the defendants.

Instructions were asked for by both parties, one of which was given for the plaintiffs, and others offered by them were refused, while all of those asked for by the defense were granted. All of these instructions are set out in a bill of exceptions, and they are as follows: For plaintiffs: "(1) The court instructs the jury that, if they believe from all the evidence that both of the defendants are non-residents of the state of West Virginia, they will find for the plaintiffs; but if they believe from the evidence that both of the defend-ants are residents of the state of West Virginia, then they will find for the defendants. (2) The court further instructs the jury that, if they believe from the evidence that either of the defendants is a non-resident and the other is a resident, they will find which one of said defendants is a resident and which is a non-resident. (3) The court further instructs the jury that a person living or residing at a place temporarily, or for a short time, in order to complete the building of a portion of a railroad alone, without having otherwise acquired a residence therein, that will not, of itself, make him a resident of this state, under the attachment laws thereof. (4) The court further instructs the jury that if they believe from the testimony in this case that in the month of April, 1890, the defendant C. D. Mundy was a resident of and domiciled in another state, and that he came to this state for the purpose of supervising the building of a portion of a railroad under a contract, without the intention of remaining in this state, or with an intention of returning to from whence he came or going elsewhere, and that from that time up to the 16th day of January, 1891, he had not formed an intention in his mind of remaining in this state permanently or for an indefinite length of time, and also believes that the defendant J. A. Mundy, Jr., was a non-resident of this state on the said 16th day of January, 1891, then they will rind for the plaintiffs. (5) The court further instructs the jury that they have the right in making up their verdict to take into consideration all the acts, facts, declarations, and circumstances tending to show what the defendants considered as their place of residence. (6) The court further instructs the jury that they are the sole judges of the weight of the testimony, and they have the right to give to each witness that credit to which they may think him entitled." And thereupon the court gave the jury the said 2d, 5th, and 6th instructions asked for by the plaintiffs, but the said court refused to give the jury the said 1st, 3d, and 4th instructions, as asked for by the plaintiffs as aforesaid. To which said ruling of the court in refusing to give the jury the said 1st, 3d, and 4th instructions the plaintiffs, by their attorneys, except. And thereupon the defendants, by their attorneys, asked the court to...