Kan Ia v. Atlas Wire & Cable Co. Inc
Decision Date | 09 February 1949 |
Docket Number | No. 16182.,16182. |
Citation | 51 S.E.2d. 762 |
Court | South Carolina Supreme Court |
Parties | KAN IA. v. ATLAS WIRE & CABLE CO., Inc., et al. |
Appeal from Common Pleas Circuit Court of Florence County; L. D. Lide, Judge.
Action by Frank W. Kania against the Atlas Wire & Cable Company, Inc., and Robert Schofield, Jr., for breach of contract, wherein a warrant of attachment was issued against certain property of the corporate defendant. From a judgment vacating the attachment, plaintiff appeals.
Affirmed.
John M. Scott, of Florence, for appellant.
Willcox, Hardee, Houck & Palmer, of Florence, for respondents.
This action was brought by Frank W. Kania against Robert Schofield, Jr. and Atlas Wire & Cable Company, Inc., a South Carolina corporation, to recover damages for the alleged fraudulent breach of a contract of employment. A summons and an unverified complaint were served on the defendants on or about March 2, 1948. On March 31, 1948, the Clerk of Court, upon application of plaintiff, issued a warrant of attachment against certain property of the corporate defendant. On April 7, 1948, the Court, upon motion of defendants, dissolved this attachment upon the ground that it was irregularly issued in that the supporting affidavit was insufficient. Two days later the Clerk of Court, on another affidavit of plaintiff, issued a second warrant of attachment against the property of the corporate defendant. On April 26, 1948, on motion of the defendants, the second attachment was also vacated upon the ground that the affidavit upon which it was based was insufficient.
There was no appeal from the first order. This appeal is by the plaintiff from the order of April 26, 1948.
In the affidavit upon which the second attachment was issued, the plaintiff, after stating that the defendants were indebted to him in the sum of $20,000 on account of the fraudulent breach of a certain contract of employment, alleges:
Among other grounds enumerated in Section 529 of the Code of 1942 upon which the property of a defendant may be attached, it is provided that a warrant of attachment may be issued whenever it shall appear by affidavit that the defendant "has removed, or is about to remove, any of his or its property from this State, with intent to defraud his or its creditors, or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete, any of his or its property "with the like intent".
The question for determination is whether the plaintiff's affidavit is sufficient to support an attachment upon the ground above mentioned. In holding that it is not, the learned Circuit Judge said:
The above conclusion is fully sustained by the following decisions: Myers v. Whiteheart, 24 S.C. 196; Sharp v. Palmer, 31 S.C. 444, 10 S.E. 98; Virginia-Carolina Chemical Co. v. Wilkins, 105 S.C. 291, 89 S.E. 659; Godwin v. Richardson, 123 S.C. 494, 117 S.E. 202; ...
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