Booker v. Smith

• Decision Date: 16 January 1893
• Citation: 16 S.E. 774,38 S.C. 228
• Parties: BOOKER v. SMITH, (two cases.)
• Court: South Carolina Supreme Court

16 S.E. 774

38 S.C. 228

BOOKER v. SMITH, (two cases.)

Supreme Court of South Carolina

January 16, 1893

Appeal from common pleas circuit court of Abbeville county; J. H HUDSON, Judge.

Action by Edward H. Booker against Augustus W. Smith, and by same plaintiff against same defendant, to recover on attachment bonds. From a judgment entered on orders sustaining demurrers to the complaints, plaintiff appeals. Affirmed.

Graydon & Graydon, for appellant.

Parker & McGowan, for respondent.

MEETZE J.

These cases involve the same questions, and are precisely the same in every particular, except in one of them the name of Augustus W. Smith, the respondent, has a seal after it, while the other has not. They were therefore heard together. In order that a proper understanding may be had of the points decided, it is necessary that one of the complaints should be set out in full.

STATEMENT OF CASE.

"Edward H. Booker, the plaintiff herein, by Graydon & Graydon, his attorneys, complaining of Augustus W. Smith, the defendant aforesaid, alleges: (1) That heretofore an action was commenced in this court by F. W. Wagener and George A Wagener, partners, doing business under the firm name of F W. Wagener & Co., for the recovery of money against this plaintiff, wherein the said F. W. Wagener & Co. made application to Thomas L. Moore, Esq., clerk of this court for a warrant of attachment against the property of this plaintiff, whereupon the aforesaid defendant then and there executed and filed with said clerk, for the benefit of this plaintiff, pursuant to the requirements of section 251 of the Code of Procedure, a written undertaking, a copy of which is hereto annexed as a part of this complaint, and marked 'Exhibit A.' (2) That, pursuant to said application and undertaking, the said clerk issued a warrant of attachment dated March 1, 1889, and directed to the sheriff of the said county of Abbeville, whereby the said sheriff was required to attach and safely keep all the real and personal property of this plaintiff not exempt by law from execution, or a sufficient amount thereof to satisfy the demand of said F. W. Wagener & Co. in said action, to wit, the sum of four hundred and fifty-nine 48-100 dollars, with interest thereon from January 10, 1889, together with all costs and expenses. (3) That at the time of issuing the said attachment this plaintiff was engaged as a merchant in selling general merchandise at retail in the town of Donnalds, in said county. (4) That the sheriff of said county, pursuant to said warrant of attachment, entered said store, and attached the whole stock of goods of this plaintiff, worth at cost price more than two thousand dollars, and also attached other property, real and personal, of plaintiff, to the value of about one thousand dollars. (5) That said sheriff closed up the store of plaintiff, and deprived him of the possession of said stock of goods for about five months. (6) That by said seizure by the said sheriff the business of the said plaintiff was utterly broken up and destroyed, the said goods became unmarketable, the plaintiff was put to much trouble and expense in defending said proceeding, and this plaintiff's credit was greatly injured, to his damage two hundred and fifty dollars. (7) That such proceedings were had in the special proceeding aforesaid that on the 20th day of July, 1889, the said attachment was vacated and dissolved by the order of the court. (8) That before the commencement of this action the plaintiff duly demanded of said defendant the said sum of two hundred and fifty dollars, which the said defendant in and by said undertaking promised to pay to plaintiff for costs and damages in case said attachment should be set aside by order of the court, but the said defendant has not paid the same, or any part thereof. (9) That before the commencement of this action the plaintiff also demanded of said F. W. Wagener & Co. payment of the said sum of two hundred and fifty dollars mentioned in said undertaking, but they have not paid the same. (10) That by inadvertence and mistake the following words were left out of said undertaking, to wit: In the second line thereof the words 'I' and 'am,' in the seventh line thereof the word 'myself,' and in the thirteenth line thereof the word 'are,' and in the thirteenth line thereof the words 'Thomas L. Moore' are erroneously inserted instead of the words, 'F. W. Wagener and George A. Wagener, partners, doing business under the firm name of F. W. Wagener & Co.,' but that said undertaking was intended by the defendant, and was given by him and accepted by the said clerk, as an indemnity to the defendant therein, this plaintiff, against any costs and damages that he might suffer by reason of issuing and suing out said attachment in case the same should be set aside, and that, but for the giving of said undertaking by the said defendant, the said clerk would not have issued said warrant of attachment. (11) That on the 15th day of March, 1889, the plaintiff in said action and special proceeding made a motion before his honor, Judge NORTON, at chambers, at Greenville, S. C., for leave to amend said undertaking by inserting the name of the plaintiff therein where it should appear; and in support of said motion the defendant herein made the following affidavit: '[Title of the Cause.] Personally came A. W. Smith, who, being duly sworn, says that he is the surety on the undertaking in the above attachment suits; that he signed the same expecting and intending to be bound to the above defendant according to the conditions of the bond; that, if said bonds are irregular, he consents to any correction where by they may be made perfect. AUGUSTUS W. SMITH. Sworn to before me this 14th March, 1889. W. C. McGOWAN, [L. S.] N. P. S. C.' (12) That the condition of the said undertaking has been broken, and the said defendant is justly indebted to this plaintiff thereupon in the sum of two hundred and fifty dollars, the costs and damages sustained by this plaintiff by reason of the issuing of said attachment. Wherefore the plaintiff demands judgment against the defendant that the said undertaking be reformed in accordance with the sworn consent of said defendant by inserting therein the words omitted therefrom as above set forth, and by striking out thereof the name 'Thomas L. Moore,' and inserting therein in lieu of said name the names 'F. W. Wagener and George A. Wagener, partners, doing business under the firm name of F. W. Wagener & Co.,' and that, when so reformed, the plaintiff herein have judgment thereon against the defendant for the sum of two hundred and fifty dollars, and for the costs and disbursements of this action. GRAYDON & GRAYDON, Plaintiff's Attorneys." The complaint is sworn to before Thomas L. Moore, C. C. C. P., on the 11th May, 1891, by the plaintiff.

"Exhibit A. The state of South Carolina, county of Abbeville. Office of the clerk of the court of common pleas. Know all men by these presents, that, in pursuance of the acts of the general assembly of this state regulating attachments, A. W. Smith held and firmly bound unto E. H. Booker in the full and just sum of two hundred and fifty dollars, to be paid unto the said E. H. Booker, his certain attorneys, executors administrators, or assigns. To which payment well and truly to be made and done, I bind my heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with my seal, and dated the 1st day of March, in the year of our Lord one thousand eight hundred and eighty-nine, and in the 13th year of American independence. Whereas, Thomas L. Moore is about to issue and sue out of the court of common pleas for the county of Abbeville, aforesaid, a warrant of attachment to attach all real estate of the said E. H. Booker, and all his personal estate, including money and bank notes, except such real and personal estate as are exempt from attachment levy, and sale by the constitution; and whereas, under and by virtue of the provisions of law in relation thereto, it is directed and prescribed that before issuing the warrant the judge, trial justice, or clerk shall require a written undertaking on the part of the plaintiff, with sufficient surety, to the effect that, if the defendant recover judgment, or the attachment be set aside by order of the court, the plaintiff will pay all costs that may be awarded to the defendant, and all damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking, which shall be at least two hundred and fifty dollars: Now, therefore, the condition of the above obligation is such that, if the said defendant...