Hale v. Donahue & Co.

• Citation: 25 W.Va. 414
• Court: Supreme Court of West Virginia
• Decision Date: 21 March 1885
• Parties: Hale v. Donahue & Co.

25 W.Va. 414

Hale

v.Donahue & Co.

Supreme Court of Appeals of West Virginia.

Submitted January 29, 1885.

Decided March 21, 1885.

1. The grounds for the attachment are the conclusions of the law.

The " material facts," which the statute requires the affiant to state, are the allegations, from which the court may be properly authorized to conclude, that the grounds exist. Consequently an affidavit, which states that a debtor did an act or acts, which of themselves are not necessarily fraudulent, with an intent to defraud his creditors without more is not sufficient, (p. 416.)

2. An affidavit, in which the material facts stated were held insufficient to sustain the grounds of the attachment, (p. 416)

The facts ot the case appear in the opinion of the Court. W. M Lively for plaintiff in error. J. T. McGraw for defendant in error. Johnson, President;

In January, 1884, the plaintiff brought an action ot assumpsit against the defendants in the circuit court of Taylor county, and sued out an attachment against the property of the defendants. On April 3, 1884, the defendants moved the court to quash the attachment, which motion was sustained by the court, and the attachment was quashed. To this judgment the plaintiff obtained a writ of error and supersedeas.

The material question to be decided is: Did the court err in quashing the attachment? It did not err, if as claimed by the defendants the affidavit on which it was based is fatally defective. The affidavit is here inserted: "State of West Virginia, Taylor County, to-wit:

" Abraham C. Hale this day personally appeared before me in my office and county aforesaid, and made oath that M. Donahue &Co. are indebted to him in the sum of $1,016.92, (one thousand and sixteen dollars and ninety-two cents,) with interest thereon from the first day of September, 1883, until paid, for a bill of sawed lumber delivered to said M. Donahue & Co. at the depot of the Clarksburg, Weston and Glenville Railroad and Transportation Company, in the town of Weston, Lewis county, West Virginia, and that he is entitled to recover said amount of $1,016.92, with interest and costs in his action of trespass on the case in assumpsit at this time pending and undetermined in the circuit court of Taylor county, West Virginia; and also that affiant believes the following grounds exist which enable him to obtain an attachment, to-wit: That M. Donahue &Co, are removing their lumber and property out of this State with intent to detraud their creditors. The affiant also states that the material facts acted on by him and which show the existence of the grounds upon which his application tor an attachment is based, are as follows: That said M. Donahue k Co. contracted with affiant to purchase sawed lumber of him, and affiant was to deliver said lumber at the depot...