Kaylor v. Davy Pocahontas Coal Co

• Decision Date: 13 January 1916
• Citation: 118 Va. 369,87 S.E. 551
• Court: Virginia Supreme Court
• Parties: KAYLOR. v. DAVY POCAHONTAS COAL CO.

87 S.E. 551

118 Va. 369

KAYLOR.

v.DAVY POCAHONTAS COAL CO.

Supreme Court of Appeals of Virginia.

Jan. 13, 1916.

Error to Circuit Court of City of Norfolk.

Action by C. M. Kaylor against the Davy Pocahontas Coal Company, in which attachments were issued. There was a judgment for plaintiff, and, an attachment being quashed, plaintiff brings error. Affirmed.

Mann & Tyler, of Norfolk, for plaintiff in error.

Loyall, Taylor & White and N. T. Green, all of Norfolk, for defendant in error.

KEITH, P. This case was heard in this court along with that of Davy Pocahontas Coal Company v. Kaylor, and the attachments hereinafter referred to were issued in that suit, which was an action of assumpsit, instituted by C. M. Kaylor in October, 1913, against the Davy Pocahontas Coal Company, a foreign corporation, originally brought for the sum of $2,000.

At the time of the institution of the suit, on proper affidavit, an attachment was sued out and served upon the West Virginia Pocahontas Sales Corporation, as garnishee. That corporation answered that it was indebted to the Davy Pocahontas Coal Company in the sum of $1,044.93, and thereupon the Davy Pocahontas Coal Company filed a bond in the penalty of $4,000 to perform the judgment of the court, as provided in section 2972 of the Code. After the bond had been given, and the judge of the circuit court had held, in an informal proceeding, that Kaylor was entitled to file interrogatories against the defendant, the defendant furnished certain information, whereby, in the opinion of Kaylor, it appeared that he was entitled to recover from the Coal Company $5,000 instead of $2,000, the amount claimed when the action was instituted. Thereupon Kaylor, upon leave of court properly obtained, amended his declaration and writ, increasing the damages claimed from $2,000 to $5,000. The first trial of the case resulted in a mistrial, but at the September term a verdict was rendered for $2,501.79, with interest on the various items, making the total recovery as of the date of the verdict about $2,700. Both the plaintiff and the defendant moved the court to set aside this verdict, but the court overruled both motions, and entered judgment for the amount of the verdict in favor of the plaintiff, and adjourned for the term on the 22d day of October, 1914, suspending, however, the execution of the judgment for 60 days from the 21st day of October, 1914, to enable the defendant to present a petition to this court for a writ of error and supersedeas. A writ of error was awarded on the 2d day of December, 1914, to the Davy Pocahontas Coal Company from this judgment, which is now pending in this court.

On the 16th day of October, 1914, pending a decision of the circuit court of the city of Norfolk on the respective motions of plaintiff and defendant to set aside the verdict of the jury and for a new trial, the plaintiff having ascertained that there were other corporations in the city of Norfolk indebted to the defendant, and the jury having brought in a verdict for a larger amount than was claimed in the original declaration, plaintiff filed another affidavit, setting forth that the defendant was a foreign corporation, and claiming the right to recover at least the sum of $5,000, and caused another attachment to be issued in which he designated the garnishees mentioned in the order of December 30, 1914, as being indebted to the defendant. The attachment was made returnable to the first day of the November term, 1914, of the circuit court of the city of Norfolk; that being within 90 days from its date of issue. On the first day of the November term, to wit, the 23d day of November, 1914, the New England Goal & Coke Company, one of the garnishees in the said attachment, answered that it was indebted to the Davy Pocahontas Coal Company in the sum of $2,116.05, and the Norfolk & Western Railway Company answered that it had in its possession three cars of coal which came from the mines of the defendant, but that it was ignorant as to the title to the coal. Thereupon the Davy Pocahontas Coal Company moved the court to quash the attachment issued on the 16th day of October, on the following grounds:

(1) Because on the first attachment the defendant had given a bond in the penalty of $4,000, provided for in section 2972 of the Code, to perform the judgment of the court, and that no further attachment could be issued in this action;

(2) Because the attachment was returnable to a day of the circuit court after the court had entered judgment on the verdict of the jury.

Upon the motion to quash there were two questions presented to the court: First, does the giving of a bond to perform the judgment of the court, as provided in section 2972 of the Code, prohibit the plaintiff from suing out another attachment in the same suit? and, secondly, is an attachment otherwise valid rendered invalid by reason of the fact that it is made returnable to a day subsequent to the rendering of verdict and entry of judgment thereon in the main suit?

Section 2959 of the Code gives to the plaintiff, at the time of or after the institution of any action at law for the recovery of damages for the breach of a contract, the right to sue out an attachment upon making the affidavit required by...