Hatfield ex rel. Rose v. Cruise
| Decision Date | 12 December 1939 |
| Docket Number | 8900. |
| Parties | HATFIELD, Sheriff, ex rel. ROSE v. CRUISE et al. |
| Court | West Virginia Supreme Court |
since filing of first schedule, recovery of statutory penalty for alleged wrongful detention of debtor's property under execution lien could not be had on official bond of officer holding execution and judgment rendered by justice of peace for failure of officer to give full release of future wages earned during life of lien. Code 1931, 38-3-5 to 38-3-8 38-4-8, 38-4-9, 38-8-3, 38-8-8, 50-13-13 to 50-13-15 50-13-17 to 50-13-20; Const. art. 6, § 48.
Capehart & Miller, of Welch, for plaintiff in error.
Crockett & Tutwiler, of Welch, for defendant in error.
McGinnis Hatfield, sheriff of McDowell County, West Virginia, who sues at the relation of Larry Rose, instituted this action against L. K. Cruise, deputy sheriff of said county, and United States Fidelity & Guaranty Company, surety on his official bond, to recover the statutory penalty provided by Code, 38-8-8, for alleged improper detention by the deputy of personal property under a lien of execution after plaintiff had claimed the statutory exemption and demanded a release from the lien. To a judgment in defendant's favor, based upon an agreed statement of facts, this writ of error is prosecuted.
On certificate, involving the sufficiency of the declaration this court held that the bond was an official bond. Hatfield, Sheriff, etc., v. Cruise et al., 120 W.Va. 16, 197 S.E. 23.
For convenience, the agreed statement of facts is stated almost verbatim as follows:
On February 8, 1936, Bluefield Sanitarium, a corporation, obtained a judgment before a justice of the peace against Larry Rose, in the amount of $155 with costs; that the claim upon which this judgment was based had been placed by the sanitarium in the hands of one C. G. Taylor, of Bluefield, representing himself to be a collection agency, who directed all the steps taken in the prosecution of the claim to judgment, its collection and the issuance of execution; that on April 13, 1936, Taylor had an execution issued by the justice upon the judgment and placed in the hands of deputy sheriff Cruise, and on the same day sent a notice of lien of fieri facias to Kingston-Pocahontas Coal Company, Rose's employer, signed Bluefield Sanitarium, Inc., by C. G. Taylor; that the coal company, upon receiving the notice, informed Rose that it could not pay him the money due at the following payday or give him further credit at the company's store; that Rose being a husband and parent prepared a schedule in accordance with Code, 38-8-3, claiming an exemption of his wages due from the coal company and his household property, which were less than $200 in value; that the schedule was delivered to Cruise, who promptly forwarded it to Taylor and Taylor forwarded to the coal company a "Release of Exempted Property" which had the notation thereon that "The lien continues in full force and effect and is binding on the garnishee until the return date as shown thereon"; that the coal company released $38 earned by Rose as of April 25, 1936, the date said schedule was filed, but because of the language contained in the release, refused to pay Rose anything he had earned after the last-mentioned date, and held all money due him until June 4, 1936, when Taylor delivered to the coal company a release executed by Cruise, having Taylor's approval indorsed thereon; and that immediately upon the receipt by the coal company on April 30, 1936, of the "Release of Exempted Property", Rose says he informed Cruise of the contents of the paper and requested an unconditional release, which, however, Cruise does not remember.
The notice of April 13, 1936, is a part of the record herein. It recites that the judgment was entered against the defendant and that the writ of fieri facias was returnable June 12, 1936, and is a lien against all the personal estate to which the debtor was entitled on date of issuance or to which he might thereafter and before the return day become possessed or entitled. It contains a warning to the effect that all persons who hold any personal property to which the debtor "is now or may hereafter become entitled" will be held personally liable "for any payments or deliveries made" to said debtor.
The solution of this case lies in the construction of the statutes of this state involving execution liens (Code, 38-4-8, 9), suggestions in justice courts (Code, 50-13-13, 14, 15, 17, 18, 19, 20), and the exemption of personal property under Article VI, Section 48, West Virginia Constitution (Code, 38-3-5, 6, 7, 8).
Code 38-4-8, provides that an (Italics supplied.) In Park v. McCauley, 67 W.Va. 104, 109, 67 S.E. 174, 28 L.R.A.,N.S., 1036, 21 Ann. Cas. 199, this court held that an execution issued by...
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