Eplin v. Blessing
| Decision Date | 02 December 1913 |
| Citation | 80 S.E. 458,73 W.Va. 283 |
| Parties | EPLIN v. BLESSING. |
| Court | West Virginia Supreme Court |
Submitted November 25, 1913.
Syllabus by the Court.
An affidavit for an attachment, pursuant to section 193, c. 50, Code 1906, which states the nature of plaintiff's claim to be "for day labor on Round Bottom job in said county and state, $54.07, and cutting timber by thousand on Round Bottom job in said county and state, $88.92, that the said claim is just, and this affiant believes that plaintiff ought to recover thereon" the aggregate of the two items "with interest on the same from the 5th day of September, 1910," is void for indefiniteness in description of plaintiff's claim and, on defendant's motion, should be quashed.
An affidavit for an attachment, pursuant to section 193, c. 50, Code 1906, which states that the defendant (naming him) "has assigned, disposed of, or removed his property, or a material part thereof, or is about to do so with like intent to defraud" his creditors, is void for uncertainty and indefiniteness in its averments of fraud; and the affidavit and attachment issued thereon should, on defendant's motion, be quashed. To avail for the purpose of a valid attachment, the affidavit should state the grounds conjunctively, not disjunctively.
Error to Circuit Court, Boone County.
Action by Ira Eplin against John F. Blessing. Judgment for plaintiff, and defendant brings error. Affirmed in part, and reversed in part.
Leftwich Byrnside & Shaffer, of Madison, for plaintiff in error.
In an action before a justice, and on defendant's appeal to the circuit court, plaintiff obtained judgment against Blessing and favorable rulings on the latter's motion to quash an affidavit for an attachment and the attachment issued thereon and on his plea in abatement to the attachment. The writ of error and supersedeas now under examination was granted solely on the petition of Blessing, although the judgment was against him and the sureties on the appeal bond. He seeks relief only from the proceeding by attachment. The judgment on the account is not contested. In fact, it is in the nature of, though not in fact, a confessed judgment.
The real and only vital question is whether the circuit court erred in its refusal to quash the affidavit and attachment. If it did, the trial of the plea in abatement was futile. Our examination inevitably leads to the conclusion that the circuit court erred in its rulings in this respect. The affidavit is fatally defective, at least in two particulars both of which are indispensable to a valid attachment under section 193, c. 50, Code 1906. It fails in its attempt to describe the claim on which plaintiff sues. We find no such definite description as the statute authorizing attachments contemplates. Such proceedings are of statutory creation and, to be valid, must conform, at least substantially, with all the requirements prescribed. The affidavit in this respect falls clearly within the criticism applied in Bank v. Loeb, 71 W.Va. 494, 76 S.E. 883. It states "that the claim of the said plaintiff against the defendant is for day labor on Round Bottom job in said county and state, $54.07, and for cutting timber by thousand on Round Bottom job in said county and state, $88.92, that the said claim is just, and this affiant believes that plaintiff ought to recover thereon" $133.62, "with interest on the same from the 5th day of September, 1910." It does not state...
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