Doty v. Boyd

• Decision Date: 09 March 1896
• Citation: 24 S.E. 59,46 S.C. 39
• Parties: DOTY et al. v. BOYD.
• Court: South Carolina Supreme Court

24 S.E. 59

46 S.C. 39

DOTY et al.

v.BOYD.

Supreme Court of South Carolina.

March 9, 1896.

Attachment —Affidavit — Sufficiency—Necessity foh Filing Affidavit and Bond.

1. A paper stating grounds of attachment, but which did not show on its face that plaintiff signed it before in officer authorized to take oaths, and which was not signed by such officer, is not an "affidavit, " within Rev. St. § 2517, requiring an "affidavit" before a warrant of attachment can issue.

2. Where the affidavit on which an attachment is issued is not filed in the clerk's office within 10 days from the issuance of the warrant, as required by Code Civ. J?roc. § 250, and circuit court rule 69, the attachment is void.

Appeal from common pleas circuit court of Fairfield county; W. C. Benet, Judge.

Action by W. R. Doty & Co. against J. W. Boyd to enforce agricultural liens. Plaintiff procured an attachment on the following affidavit: "W. It. Doty, a member of the firm of W. R. Doty & Co., being duly sworn, says, on oath, that J. W. Boyd is indebted to the said firm of W. R. Doty & Co. on an agricultural lien for supplies in the sum of three hundred and sixty-six and ninety-five one-hundredths dollars ($366.95), which said sum is a balance due and unpaid for advances furnished said J. W. Boyd for the year 1894, as evidenced by four agricultural liens herewith attached; that no part of said balance has been paid, although said liens are all past due. Deponent further states that, from defendant's own statement to deponent, he knows that said J. W. Boyd has disposed of at least one bale of cotton of his crop of 1894, the proceeds of which were not paid on deponent's lien, and deponent verily believes that said J. W. Boyd intends to defeat the purpose of said liens, which liens are upon all the lands worked by said Boyd during the year 1894. W. R. Doty. Sworn to before me, this 31st day of January, 1895." From an order overruling a motion to vacate the attachment, defendant appeals. Reversed.

J. W. Hanahan and J. E. McDonald, for appellant.

Ragsdale & Ragsdale, for respondents.

POPE, J. It seems that this appeal comes up on this state of facts: W. R. Doty & Co., a mercantile firm doing business in the town of Winnsboro, in the county of Fairfield, in this state, made large advances to one J. W. Boyd, taking from him, as security for such advances, three liens on all his crops to be raised during the year 1894. Doty & Co. had their liens indexed in the office of the clerk of court for Fairfield county. The liens were not fully paid, some differences having arisen between the lienor and the lienees touching the payment of said advances. W. R. Doty, for the firm of W. R. Doty & Co., applied to the clerk of court, R. H. Jennings, for a warrant, directed to the sheriff of Fairfield county, to seize the crops of J. W. Boyd, alleging that said Boyd had sold a bale of cotton, covered by the liens held by Doty & Co., without the consent of said firm and without applying the proceeds of such sale to the pro tanto payment of his indebtedness. The clerk issued the warrant to the sheriff, directing him to seize Boyd's crops, and thereupon R. E. Ellison, as sheriff of Fairfield county, seized about 90 bushels of corn, taking possession thereof, and making sale thereof. J. W. Boyd thereafter gave notice to the firm of W. R. Doty & Co. that he would move, before his honor, Judge Benet, at chambers, at Chester, S. C., on the 26th day of March, 1895, for an order setting aside and vacating the warrant of attachment, etc., upon the following grounds: "(1) That the said warrant was irregularly issued, as the affidavit upon which the same was issued does not state facts sufficient in law to justify the issuing thereof; (2) that the said warrant was improvidently issued, as the statements contained therein are not true; (3) that it appears upon the face of the original papers that there was no sufficient affidavit made and sworn to before any officer authorized by law to administer an oath, and signed by such officer; (4) that no sufficient and legal bond, signed by the said W. R. Doty & Co., was executed and delivered to the...