Crim v. Harmon

• Decision Date: 06 December 1898
• Parties: Crim v. Harmon (Buhl et al, Interveners.)
• Court: West Virginia Supreme Court

38 W.Va. 596

Crim

v.Harmon (Buhl et al, Interveners.)

Supreme Court of Appeals of West Virginia.

Submitted June 16, 1898

Decided December 6, 1898.

1.Attachment Affidavit.

A case in which the law of attachment is discussed with refer-ence to the affidavit, stating: (1) The nature of the plaintiff's, claim. (2) The amount of the claim at the least; that is, the amount due after deducting all credits and proper counter-claims.

(3) The amount the plaintiff' is "justly" entitled to recover; that is, justly, not only in regard to the absent debtor, but justly in regard to other creditors and persons interested.

2. Attachment Affidavit.

The supplemental affidavit allowed by the latter part of clause 8, § 1, c. 106. See Code (Ed. 1891.)

3. Attachment Intervener.

A mere creditor at large of the absconding debtor is not a person interested in disputing plaintiff's claim, within the meaning of the term as used in section 23, c. 106, Code.

J. Hop Woods for appellant cited 3 W. Va. 26; 5 Min. Inst. 674; Code, c. 106, s. 23; 3 Leigh 306; Wade Att. § 69; Dan. Alt. § 20, 22, 27; Dra. Att. § 95; 22 W. Va. 645, 650; Hutch. Trea. § 1133, 1137; 21 W. Va. 211; Dra. Att. § 500; 10 W. Va. 130; 25 W. Va. 414; 32 W. Va. 66; Dra. Att, § 83, 113, 509; 26 W. Va. 322.

Al. Peck lor appellee cited 25 W. Va. 414; Code c. 106, s. 23; 1 Bar. Chy Pr. 585; 5 W. Va. 22; 8 W. Va. 274; 13 W. Va. 278; 28 W. Va. 195: 1 Bar. Ch'y Pr. 583; 45 Am. Dec. 305; 42 Am. Dec. 484; 26 W. Va 300, Syll. 7; Id. 327; 7 Hayw. 97; Dra. Att. (7th Ed.) § 87a.

Holt, Judge:

This is a suit in equity with attachment brought in Barbour Circuit Court on 26th October, 1891, by plaintiff Crim, against defendant, Harmon, for a negotiable note for nine hundred and eighteen dollars and seven cents, dated July 28, 1891, payable at Tygart's Valley Bank twelve months after date. The affidavit gives the nature of the plaintiff's claim and its amount; but it docs not state "the amount at the least which the affiant believes the plaintiff is justly entitled to recover."

Among the grounds for attachment enumerated by the statute (section 1, c. 106) the affidavit sets out Nos. 2, 3, 5, and 6, not including No. 1, which is based on non-residence; also certain material facts relied upon by him to show the existence of the grounds upon which the application for the attachment is based. On February 15, 1892, without objection made, but by leave of the court (see latter part of clause 8, s. 1, c. 106, p. 742, Code, Ed. 1891) he filed a supplemental affidavit. Appellants, Ruhl & Koblegard, claimed to be attaching creditors of defendant, Harmon, by attachment sued out before a justice on 29th October, 1891, three days latter. Appellants, claiming to be.thus interested, filed their petition on February 28, 1892, by leave of the court disputing the validity of the plaintiff's attachment. On May 28, 1892, plaintiff Crim, defendant in the petition of the interveners, Ruhl & Koblegard, demurred to the petition, which the court sustained, giving petitioners leave to amend. Plaintiff, Crim, answered the original and amended petition, denying its sufficiency, and that petitioners were the owners, in any way, of the Cumberland Milling Company claim for two hundred and ninety six dollars and ninety two cents which was one of the two claims they set up against defendant, Harmon, the other being for fifty six dollars and seventy eight cents in their own name. The court had sold the attached property, and distributed all the proceeds among the attaching creditors of Harmon, except four hundred dollars, which it held to await the contest between plaintiff. Crim, and petitioners.

On the 23d day of December, 1892, the court heard the chancery cause of Crim v. Harmon, and the collateral petition of appellants, and pronounced a final decree, holding that there was no question of fact raised by the petition, proper for a jury; that plaintiff's attachment was valid from the filing of his amended and supplemental affidavit, on February 15, 1892; that petitioners failed to show any prior or equal claim to the fund; ordered their petition to be dismissed, and the sum of four hundred dollars in the hands of the receiver, to the credit of the cause, to be paid over to plaintiff, Crim, as a credit on his claim. From this the petitioners, Ruhl & Koblegard, have obtained this appeal.

1. The first question presented by the record, and argued by the counsel, is, was the attachment of J. N. B. Crim, the plaintiff, a valid one? And in this case this depends on two questions: (1) Was the original affidavit so defective as to require the attachment to be quashed, on motion of some one who had a right to make it? (2) If defective and insufficient, was it cured and made good by the supplemental affidavit, taken as such, or was the supplemental affidavit good, as an original one, from the time it was permitted to be filed?

That part of the statute in question (see section 1, 'c. 106, p. 741, Code, Ed. 1891) is as follows: "When an action at law or suit in equity is about to be, or is instituted the plaintiff at the commencement of the action or suit or at any time thereafter and before judgment, may have an order of attachment against the property of the defendant by filing with the clerk of the court * * * his own affidavit or that of some credible person, stating (1) nature of the plaintiff's claim, (-2) and the amount at the hast, (3) which the plaintiff is justly entitled to recover. * * * See Hutch. Treat. § 1133; Ruhl v. Rogers, 29 W. Va. 779, 781 (2 8. E. Rep. 758). This is a plain, concise, and simple form of written oath, that he who runs may read. The appellee contends that his affidavit is good, although he has left out the term "justly."

The argument on behalf of appellee is: "The law entitles a party to recover only that which is just. Affiant says that, by law, he is entitled to recover this claim, as stated. Therefore, he has said, by necessary implication, that he is justly entitled to recover it." But this would soon involve the courts in the question as to what words of the statutory affidavit can be left out as unmeaning, or as already contained in other words by necessary implication, or what other words can be substituted as meaning the same thing; and to that extent their attention would be withdrawn from the merits of the case, and their time consumed in deciding such subtle questions as to words in the statute without meaning, words whose meaning, by necessary implication, is contained in other words; and synonymous words that may be safely substituted. And all this to enable persons to draft the affidavit without reading the statute. Public policy and general convenience forbid that any such perplexing burden should be cast upon the courts.

2. The history of the statute forbids any such loose construction, The formula for the affidavit is the result of seventy five years of legislative consideration, passing through three revisals that of 1819, 1849, and 1868 and it has been brought together, and methodized, shortened, and simplified, until that part has no superfluous or unmeaning Words in it. Attention lias thus been repeatedly directed to the terms "at the least," "just," "justice," "justly," for they have been substituted for each other; but instead of being left out, as idle or unmeaning, they have been introduced where they were not to be found before. See 1 Rev. Code 1819, c. 123, p. 474; Code 1849 (Ed. 1860) p. 645, c. 151; Report of Revisors of Code of 1849, p. 753, and note; Code 1868, p. 553, c. 106; Id. c. 50, s. 193; Acts 1882, c. 158, p. 514; Code (Ed. 1887) p. 722; Id. (Ed. 1891) p. 741.

3. Such loose construction of this statute is also wrong, and on principle, because attachments constitute an extraordinary remedy harsh towards the defendant him self, ami harsh in its operation towards the other creditors of the defendant, over whom the attaching creditor attains priority. It is liable to great abuse, and has often been greatly abused. The proceeding, therefore, is closely watched, and is never sustained unless all the requirements of the law have been complied with. Claflin v. Steenbock, 18 Gratt. 854; 4 Min. Inst, p't 1, p. 266. It has its origin in one of the immemorial customs of the city of London, and has been carried into all common-law countries, expanded and adapted to the circumstances, until it has become not only useful, but indispensable, and should not be discouraged by tolerating its abuse, but rather encouraged and advanced within its legitimate scope; and to this end it is not unimportant that no such relaxations be tolerated as tend to raise the class of questions here presented, of omitting from the affidavit words as unmeaning, or substituting for others their supposed equivalents; for there can be no valid writ or order of attachment without a sufficient affidavit, and no affidavit safely sufficient which, in language and scope of meaning, departs from the oath prescribed by the statute. The common-sense and convenient rule, therefore, is to take it as we find it, and not consume the time of the courts in verbal subtleties as to what word is the equivalent of another, and what word includes another by necessary implication.

The case of Mag rath v. Hardy, 33 E. 0. L. 974, was tried in the court of C. P. in 1838', in which the question arose, what was this custom of London^ and how was it to be shown? Ashley, one of the attorneys of the lord mayor's court of London, of twenty five years' experience as a practitioner of that court, was called as a witness by plaintiff, and he gave a full statement of the practice and proceedings by by foreign attachment. It is significant, in its bearing on the term "at least," that in that case the demand was one thousand pounds, but it was sworn to as five hundred pounds and upwards. See Locke, Attaehm. 79, Law Lib. 56, where the affidavit says, "is justly and truly indebted in a certain sum (naming it as the sum due at the least)...