Carolina Agency Co v. Garlington

• Decision Date: 05 March 1910
• Citation: 67 S.E. 225,85 S.C. 114
• Parties: CAROLINA AGENCY CO. v. GARLINGTON.
• Court: South Carolina Supreme Court

67 S.E. 225

85 S.C. 114

CAROLINA AGENCY CO.

v.GARLINGTON.

Supreme Court of South Carolina.

March 5, 1910.

1. Attachment (§ 12^*)—Right to Attachment—Nature of Action—Suit in Equity —Recovery of Money.

Under Code Civ. Proc. 1902, § 248, providing that, in any action for the recovery of money or property, real or personal, and damages for wrongful conversion and detention of personal property, or for damages for injury done to either person or property against a nonresident, a defendant who has absconded or concealed himself, or who has disposed of, or is about to dispose of, his property with intent to defraud his creditors, etc., an attachment may be issued. Held to authorize an attachment in a suit in equity against an agent for an accounting and to recover money only pursuant thereto.

[Ed. Note.—For other cases, see Attachment, Cent. Dig. § 39; Dec. Dig. § 12.*]

2. Corporations (§ 517*) — Action — Complaint—Verification.

Where, in a suit by a corporation for an accounting against its treasurer and general manager, the complaint contained no allegation of fact necessary to state a cause of action which plaintiff's president who verified the complaint might not have known from personal knowledge derived from acquaintance with defendant, or from records of the corporation as kept by him, and all were alleged on personal knowledge, the verification that the complaint was true of deponent's own knowledge, derived from personal acquaintance with defendant and from the records of the corporation, was sufficient.

[Ed. Note.—For other cases, see Corporations, Cent. Dig. § 2050; Dec. Dig. § 517.*]

3. Attachment (§ 211*) — Complaint — Grounds of Attachment—Verification.

An allegation in a complaint in attachment that defendant had recently departed from the state, and had continued to absent himself therefrom to defeat and defraud plaintiff, was not necessary to the statement of a cause of action, but only to the right to an attachment on the ground that the defendant had departed from the state with intent to defraud his creditors; and hence, though a verification of such statement on the deponent's knowledge was insufficient without a statement of the facts on which the allegation was based, the complaint, verified on deponent's knowledge, was not rendered insufficient by the presence of such allegation.

[Ed. Note.—For other cases, see Attachment, Cent. Dig. §§ 706-721; Dec. Dig. § 211.*]

4. Attachment (§ 111*) — Grounds — Complaint and Affidavit.

Where a complaint and affidavit in attachment alleged that frequent demands had been made on defendant for an accounting, which hefailed to give; that he was told that he must pay the amount due plaintiff, or suit would be brought to collect it; that soon after defendant departed from the state, and, though informed of plaintiff's claim, and the claim of others, kept himself without the state so that he could not be served with process—the allegations were sufficient to show prima facie that defendant left the state, and kept himself without the state, to avoid service of summons.

[Ed. Note.—For other cases, see Attachment, Cent. Dig. §§ 292-302; Dec. Dig. § 111.^2-*]

5. Attachment (§ 230*) — Grounds — Vacation.

Where an attachment was issued on two grounds, defendant was not entitled to a dissolution of the writ by rebutting the prima facie showing made as to one of the grounds, while admitting the existence of the other.

[Ed. Note.—For other cases, see Attachment, Cent. Dig. §§ 788-793; Dec. Dig. § 230.*]

6. Attachment (§ 211*)—Amount Claimed— Certainty.

Where a complaint in attachment alleged that defendant was indebted to plaintiff "at least" in the sum of $25,000, plaintiff's attachment being limited to that sum, defendant could not object that the amount claimed was not definitely alleged.

[Ed. Note.—For other cases, see Attachment, Cent. Dig. §§ 706-721; Dec. Dig. § 211.*]

7. Corporations (§ 517*)—Actions—Attachment—Complaint and Affidavit.

Where a complaint and affidavit by a corporation's officers appeared on its face to be signed by them as officers, by their official title being affixed to their signatures, it would be presumed, until the contrary appeared, that they were in fact officers of the corporation.

[Ed. Note.—For other cases, see Corporations, Dec. Dig. § 517.*]

8. Attachment (§ 246*)—Motion to Quash— Affidavits.

Under the rule that an attorney will be presumed to be authorized to represent the client for whom he appears until the contrary is shown, defendant's allegation, in an affidavit to quash an attachment issued in a suit by a corporation, on information and belief, without giving the sources of his information or the grounds of his belief, that the action was commenced without authority of the board of directors was insufficient to raise an issue.

[Ed. Note.—For other cases, see Attachment, Dec. Dig. § 246.*]

9. Venue (§ 26*)—Action Against Nonresident.

An action for an accounting against a nonresident was properly brought in the county where he resided prior to his leaving the state, under Code Civ. Proc. 1902, § 146, providing that, in cases other than those previously mentioned, the action shall be tried in the county where the defendant resides at the time of the commencement of the action, or, if none of the parties shall reside in the state, in any county which plaintiff shall designate in the complaint, etc.

[Ed. Note.—For other cases, see Venue, Cent. Dig. § 39; Dec. Dig. § 26.*]

Appeal from Common Pleas Circuit Court of Richland County; D. E. Hydrick, Judge.

Action by the Carolina Agency Company against John Y. Garlington. From an order denying defendant's motion to vacate an attachment, defendant appeals. Affirmed.

The following is the decision of the circuit court on which the judgment is affirmed "This action was commenced January 5, 1909. The allegations of the complaint are, in substance, as follows, except the seventh and eighth paragraphs, which are copied in full:

"(1) That plaintiff is a corporation, chartered under the laws of this state on March 26, 1907, with a capital stock of 15, 000 shares of the par value of $10 each, and with authority to act as general agent for insurance companies.

"(2) That it became the general agent of the State Mutual Life Insurance Company of Rome, Ga., and solicited and sold policies for that company in this state.

"(3) That defendant subscribed for 7, 500 shares of the stock of the plaintiff company, and was its treasurer and general manager from April 1, 1907, until June 5, 1908, and, among other things, his duties were to receive and care for the funds of the company derived from the sale of its stock, from premiums of insurance collected, and from other sources, and to keep the books of account.

"(4) That on April 25, 1907, the directors of the plaintiff company authorized the defendant to sell so much of the capital stock as had not been subscribed for (which was practically all of it, except his own), as follows: 3, 000 shares in 1907, at not less than par, 3, 000 shares in 1908, at such premiums as the board should fix, and the balance at such time and such premium as the board should direct; that he was not authorized to sell any of the stock at less than par, and was to turn the proceeds of sale into the treasury.

"(5) That between the 25th April, 1907, and the 15th May, 1908, the defendant sold about 5, 000 shares of the stock at par, and received therefor $50,000.

"(6) That he received for plaintiff, up to 1st May, 1908, premiums of insurance, on policies issued by the State Mutual Life Insurance Company, of Rome, Ga., amounting to $70,000.

" '(7) That although frequently called upon by plaintiff to account for his actings and doings as general manager and treasurer, and to account to it for the moneys received by him, less the sum authorized to be paid out by him, the defendant has never done so, but, on the contrary, he has recently departed from the state of South Carolina, and had continued to absent himself therefrom for the purpose of defeating and defrauding this plaintiff, his creditor, and other creditors of their rights, and that, at the time of his departure from this state, the defendant was a resident of the county and state aforesaid.

" '(8) That the defendant, John Y. Garlington, is indebted to the plaintiff in the sum of $25,000 on account of moneys received and collected by him, aforesaid, as general manager and treasurer, which amount plaintiff alleges is the least sum that will be due itafter crediting the said defendant with all moneys properly expended and paid by him, as general manager and treasurer as aforesaid, and that said amount is now due and owing by the defendant to the plaintiff.'

"The prayer is that defendant account to plaintiff for all moneys received for it, and for judgment for the amount found to be due on such accounting; and, in default of such accounting, for judgment for $25,000, and for such other relief as may be just.

"The complaint is verified by the president of the plaintiff company as 'true of his knowledge, which knowledge is derived from personal acquaintance with the defendant, and from the records of the Carolina Agency Company.' Attached to the complaint is the following affidavit: 'Personally comes W. A. Clark, president of the plaintiff company, who, being first duly sworn, deposes and says: That in addition to the facts and circumstances set forth in the complaint in this action, verified by this deponent, and which deponent reavers are true, he knows of his knowledge that defendant is indebted to the plaintiff in the form, manner, and for the amount set forth in the said complaint; that the defendant was informed by deponent that he must pay the amount due the plaintiff company, or suit would be instituted for the recovery of the same; that soon thereafter the said defendant departed from the state of South Carolina, and, although informed of the claim of plaintiff and claim of others, defendant has kept himself without the...