Beirne v. Snyder
| Decision Date | 06 March 1934 |
| Docket Number | 7799. |
| Citation | 173 S.E. 570,114 W.Va. 691 |
| Parties | BEIRNE et al. v. SNYDER. |
| Court | West Virginia Supreme Court |
Submitted February 14, 1934.
Syllabus by the Court.
A tenant complaining of a distress that has been made on his goods, having failed to seek redress at law, and showing no satisfactory reason for such failure, is not entitled to relief in equity.
Appeal from Circuit Court, Kanawha County.
Suit by P. L. Beirne and another, partners, doing business as the Barren Creek Coal Company, against P. W. Snyder. From a decree dismissing the bill, the plaintiffs appeal.
Affirmed.
Emmett Horan, of Summersville, and England & Ritchie, of Charleston for appellants.
Barnhart & Trotter, of Charleston, for appellee.
This is an appeal from a decree of the circuit court of Kanawha county sustaining a demurrer to a bill and dismissing it.
The plaintiffs were tenants under a lease, and, falling in arrears in the payment of rent, the landlords caused a distress warrant to be issued by a justice of the peace and a levy thereunder to be made by a constable upon personal property of the lessees. The personal property thus seized was advertised and sold publicly by the constable, at which sale the defendant became the purchaser. By this suit the plaintiffs seek to have said proceeding held for naught, to enjoin the defendant from the removal of any more of said personal property from the leasehold, and to require him to replace such of said personal property as he has already removed. The plaintiffs allege certain irregularities in the distress as basis of their suit.
As a general rule equity does not have jurisdiction in such circumstances as there is complete remedy at law. Hancock v. Whitehall Tobacco Warehouse Co., 100 Va 443, 41 S.E. 860; Mayo v. Winfree, 2 Leigh (Va.) 370. "Even if the landlord should distrain property as being fraudulently removed from the premises, and should not shew that it was so fraudulently removed, nor that the distress was levied within the time allowed by law, nor that the property ever was on the demised premises, the tenant ought not to seek his redress in a Court of Equity, but by damages at law." Davis v. Payne's Adm'r, 4 Rand. (Va.) 332.
If the plaintiffs' rights were violated, they should have vindicated them at law where remedies, full, adequate and complete for the purpose are afforded. No reason appears in this case why the plaintiffs did not so proceed. The simple and time-honored method available for lessees in such circumstances is to give a forthcoming bond and then in defense of an action thereon to raise such matters as operate to challenge the right of the landlord under the distress proceedings. Hedrick v. Pack, 105 W.Va. 540, 545 143 S.E. 309; Anderson v. Henry, 45 W.Va. 319, 324, 31 S.E. 998; Hogg's Treatise and Forms, section 760. This procedure was changed by chapter 80 of the Acts of the Legislature of 1925, amending and re-enacting section 10 of chapter 93 of the Code of 1923, but by the Code of 1931, 37-6-12, the amendment of 1925 is eliminated and the section is re-established as it appeared in the Code of 1923.
The fact that the amount laid in a distress warrant exceeds $300.00, which is the limit of jurisdiction of justices in civil matters, is not material, because a distress warrant does not operate as a writ to initiate a proceeding for...
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