Bank Of Union v. Loeb Shoe Co

• Decision Date: 17 December 1912
• Citation: 71 W.Va. 494,76 S.E. 883
• Court: West Virginia Supreme Court
• Parties: BANK OF UNION. v. LOEB SHOE CO.

76 S.E. 883

71 W.Va. 494

BANK OF UNION.

v.LOEB SHOE CO.

Supreme Court of Appeals of West Virginia.

Dec. 17, 1912.

(Syllabus by the Court.)

1. Appeal and Error (§ 715^*)—Supreme Court of Appeals—Jurisdiction—Amount in Controversy—Affidavit.

On writ of error to a judgment dismissing a petition filed before a justice pursuant to sections 151 and 152, chapter 50, Code 1906, and heard on appeal in a circuit or intermediate court, the amount actually in controversy, between the petitioner, a subsequent, and the defendant, a prior, attaching creditor of the same debtor, not otherwise appearing, may be shown by affidavit or other proper evidence presented with the petition to this court.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2964, 2965; Dec. Dig. § 715.*]

2. Appeal and Error (§ 65*)—Supreme Court of Appeals—Jurisdiction—Amount in Controversy.

The amount actually in controversy upon such petition is the amount which the petitioner will lose if the defendant thereto should prevail in his attachment, which may include principal, interest and costs in the defendant's suit against the common debtor.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 315-328; Dec. Dig. § 65.*]

3. Justices of the Peace (§ 86*)—Attachment—Subsequent Attaching Creditor— Validity of Prior Attachment—Contest.

A subsequent attaching creditor has right, by sections 151 and 152, chapter 50, Code 1906. to contest the validity of a prior attachment against the same property. Such right is not limited thereby to an owner claimant or one with title or right of possession.

[Ed. Note.-—For other cases, see Justices of the Peace, Cent. Dig. §§ 280-294; Dec. Dig. § 86.*]

4. Justices of the Peace (§ 82*)—Summons —Form.

The summons of a justice, issued August 19, 1901, returnable August 24, 1901, at 9 o'clock a. m., is not invalid by section 26, chapter 50, Code 1906. Being made returnable on the fifth day from its date it, by proper construction, conforms to the requirements of that section saying, that such summons shall "be made returnable not less than five * * * days from its date."

[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 262, 263; Dec. Dig. § 82.*]

5. Justices of the Peace (§ 82^2-*)—Summons-Address to Constable.

The summons of a justice, otherwise in due form, addressed to "G. T. Grass. To H. C. Smith, or any Constable of said County, " the return thereon being signed "G. T. Grass, Special Constable, Kanawha County, " sufficiently evidenced an appointment by the justice of such special constable, and such summons and return are not invalid, because such summons was not more formally addressed, or the appointment endorsed on the writ, as provided by section 30, chapter 50, Code 1906.

[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 262, 263; Dec. Dig. § 82.*]

6. Justices of the Peace (§ 86*)—Attachment—Affidavit—Statement of Claim-Description—Indebtedness.

An affidavit for an attachment, pursuant to section 193, chapter 50, Code 1906, which states the nature of plaintiff's claim to be: "That the claim of the said plaintiff against the defendant is for check not paid, protest fees and To Mdse. that the said claim is just, and this affiant believes that plaintiff ought to recover thereon Sixty 20-100 Dollars, with interest on the same from the ———day of ——— 189—", is void for indefiniteness in description of plaintiff's claim, and should be quashed on motion, as not being a compliance with the requirements of the statute.

[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 280-284; Dec. Dig. § 86.*]

7. Justices of the Peace (§ 86*)—Attachment—Void Affidavit—Attack by Subsequent Attaching Creditor.

The validity of such prior attachment, based on such void affidavit, may be attacked and the affidavit and attachment quashed on motion of a subsequent attaching creditor with a valid attachment on the same property in a proceeding under said sections 151 and 152, chapter 50, Code 1906.

[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 280-294; Dec. Dig. § 86.*]

8. Justices of the Peace (§ 86*)—Prior Attachment—Attack—Subsequent Attaching Creditor.

Without such valid attachment, however, a subsequent attaching creditor cannot be heard upon such petition to impeach the validity of a prior attachment, though void on its face.

[Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 280-294; Dec. Dig. § 86.*]

Poffenbarger and Robinson, JJ., dissenting.

Appeal from Circuit Court, Kanawha County.

Petition by the Bank of Union, a subsequent attaching creditor, against the Loeb Shoe Company, a prior attaching creditor of the same debtor, to defeat such prior attachment From a judgment dismissing the petition, petitioner brings error. Reversed and remanded.

A. M. Prichard, S. S. Green, and A. P. Hudson, all of Charleston, for plaintiff in error.

Leo Loeb, of Charleston, for defendant in error.

MILLER, J. The petition of plaintiff, a subsequent attaching creditor of Watson in the circuit court, filed before a justice, pur suant to sections 151 and 152, chapter 50, Code 1906, against Loeb Shoe Company, a prior attaching creditor, of the same debtor, in an action begun before another justice, was dismissed, and on appeal to the intermediate court it was dismissed there, and the circuit court having denied an appeal from that judgment, the petitioner has brought the case here for review.

The first question is, is the matter in controversy, exclusive of costs, sufficient to give this court appellate jurisdiction? According to plaintiff's original and amended petitions the amount for which defendant attached on August 19, 1901, was sixty dollars and twenty cents, with interest and costs. Defendant insists that the jurisdiction must be tested by the original amount in controversy in his suit, exclusive of costs, and that it does not affirmatively appear from the record, as he insists it must to give appellate jurisdiction, that the principal and interest exceeds the sum or value of one hundred dollars. This was not a suit to recover a specific sum of money, and the general rule in such cases is, that it is not necessary that the record should show the amount in controversy. That may be shown by affidavit or other evidence presented here. Hannah v. Bank, 53 W. Va. 82, 44 S. E. 152. This was properly done, by a certified copy of the final judgment in favor of the defendant in the intermediate court, with taxation of costs, exhibited with plaintiff's petition. This shows judgment $60.20; interest to date of the judgment July 11, 1910, $31.75; costs before the justice, $14.70, total $106.65; to which, if we add, the costs incurred in the intermediate court on appeal, $27.40, the total would be $134.05. If as insisted the costs incurred on appeal by the garnishee cannot bo included, there still remains the original judgment interest and costs incurred before the justice amounting to $106.65.

What then is the real amount in controversy? If the Loeb Shoe Company succeeds in maintaining its attachment, as against petitioner, the fund in bank attached will be depleted by at least the sum of $106.65, and the petitioner deprived of that amount as a credit on its judgment. So we must say that the actual amount in controversy is that sum which the petitioner will lose if defendant prevails. If this were a writ of error to the judgment in the ease of Loeb Shoe Company against Watson, the contention of counsel would have force, but it is not. Though collateral it is to all intent and purposes an independent proceeding, and we think falls within the rule of Taney v. Woodmansee, 23 W. Va. 709, 713. In Castle v. Castle, 69 W. Va. 400, 71 S. E. 385, we decided that an appeal would lie to this court to correct a decree for costs, when such costs had been the subject of a special agreement between the parties.

The next question is, is the petitionera claimant, with right to contest the validity of the attachment of the Loeb Shoe Company? It is insisted that no one but the owner or one with title, and right of possession of the property attached, can do this. This argument is based mainly on said section 151, saying, that upon the filing of the petition and giving the bond, the order of the justice shall direct the officer "having such execution, order of sale, or attachment * * * to deliver up the property to said claimant, " and that this could not mean another attaching creditor. Opposed to this narrow construction it is insisted for the petitioner, first, that the language of section 151, specifying what the petition shall contain, indicates the intention of the legislature that any one, who has "such a claim to or interest in the property levied on, or about to be sold, as entitles him to have the same released from such levy, or to prevent the sale thereof (as the case may be)" may file such petition, and that this language is comprehensive enough to include a subsequent attaching creditor, with superior right. Another argument is based on analogy to section 23, chapter 106, Code 1906, relating to proceeding upon attachment in the circuit court. That section provides that "Any person interested may file his petition at any time before the property attached, as the estate of a defendant, is sold under the decree or judgment, or if the proceeds of the sale have not been paid over to the plaintiff, or his assigns, within one year after such sale, disputing the validity of the plaintiff's attachment thereon, or stating a claim thereto, or an interest in or lien on the same, under any other attachment or otherwise, and its nature, and upon giving security for costs, the court without any other pleading, shall impanel a jury to inquire into such claim, and if it be found that the petitioner has title to, or lien on, or any interest in such property or its proceeds, the court shall make such order as is necessary to protect his rights; the costs of which...