Kesler v. Lapham
| Citation | 33 S.E. 289,46 W.Va. 293 |
| Parties | KESLER v. LAPHAM et al. |
| Decision Date | 08 April 1899 |
| Court | Supreme Court of West Virginia |
Submitted January 25, 1899
Syllabus by the Court.
1. Affidavit for attachment may be made before an officer of any county, though to be used in a suit in another county.
2. A venue is not necessary,--that is, its absence will not vitiate an affidavit for attachment,--if it appear that the affidavit was made before an officer of a certain county.
3. If an affidavit be made before an officer of a certain county shown in the venue or otherwise, it will be presumed that it was sworn to in that county.
4. The ground for an attachment should exist when it is sued out and for this reason the time between the making of the affidavit and the issue of the attachment should not be unreasonable. The two acts need not be simultaneous, but done within a reasonable time; and what is a reasonable time is to be judged of by the situation of the parties.
5. An affidavit for an attachment from a justice which says that "affiant believes that plaintiff ought to recover thereon" a certain sum is not bad, as not sufficiently positive.
6. An affidavit for attachment which says, "The claim of said plaintiff against the defendant is for professional services rendered by plaintiff," there being two defendants, and the one indebted not being specified, is bad.
7. The supreme court will not consider questions not yet acted on by the circuit court in the case.
8. Where a writ of error is only to a judgment refusing to vacate an attachment, the balance of the case remaining undecided in the circuit court, the supreme court will consider only matters arising upon the judgment refusing to abate the attachment.
Error to circuit court, Summers county; J. M. McWhorter, Judge.
Action by A. K. Kesler against O. K. Lapham and others. Judgment for plaintiff. Defendants bring error. Reversed.
Miller & Read, for plaintiffs in error.
Heflin & Arbuckle, for defendant in error.
Kesler brought an action before a justice of Summers county against Lapham and Lighthart for the recovery of money due on contract, and he filed an affidavit of nonresidence, and sued out an order of attachment against the estate of the defendants. Lapham appeared before the justice, and moved him to quash the affidavit and attachment, and judgment was rendered against Lapham for $116, and he took an appeal to the circuit court, and in that court he moved to quash the attachment; but the court overruled this motion, and from this order refusing to abate the attachment Lapham obtained a writ of error to this court.
One defect charged against the attachment affidavit is that it was made before a notary of Greenbrier county, and does not show that the affiant appeared in that county, and took the oath specified in the affidavit. The answer to this point is that stated in Bensimer v Fell, 35 W.Va. 15, 12 S.E. 1078, and that is that it will be presumed that the oath was taken in the officer's county, and that the officer did not do the illegal act of usurping jurisdiction or power to act outside of his county. See Quesenberry v. Association, 44 W.Va. 512, 30 S.E. 73. In this case the notary signed as notary for Greenbrier county, and the cases cited would justify a presumption that the oath was administered in that county.
Another defect charged against the affidavit is that it contains no venue, and is therefore void. It seems that, under the old common law, such defect would have been serious, and under some decisions in New York; but such technicality has been overruled. If the affidavit in any way tells the authority of the officer, and indicates of what county he is an officer as this one does, it is, and ought to be, good, though it have not that formal part usually found in pleadings and other papers called the "venue." This is the final result, after elaborate consideration, reached by the courts, as appears in that very late and valuable work, the Encyclopedia of Pleading and Practice (volume 1, pp. 313, 314).
Another point made against the affidavit and attachment is that the affidavit was made before an officer of Greenbrier county on the 3d of December, 1896, and the action was brought and the attachment issued on December 5, 1896, in Summers county. The affidavit gives the title of the case, and states that it is in a civil action before H. Ewart, a justice of the peace of Summers county, and states that Kesler is plaintiff in it and it is said that no such suit was pending when the affidavit was made. Code, c. 50, § 193, does not specify just when the affidavit may be made, further than to say that, "if the plaintiff at the commencement of his action or at any time during its pendency, and before judgment, show to the satisfaction of the justice by his own affidavit, or the affidavit of one or more credible persons made before any persons authorized to administer oaths" certain things, he may have an attachment. Clearly that shows that he must at the commencement of the action, if he then sues out his attachment, have his affidavit present, and so if he sues it out afterwards; but that does not precisely tell us when the oath must be administered. The affidavit must show the existence of the ground of attachment, when it issues, and it is not sufficient if it shows that ground as existing long antecedently. But it is a rule of law where domicile or residence is shown to be at a certain place at one time, it would be presumed to continue until the contrary appears, and certainly to continue from the 3d to 5th day of a month. "The affidavit alleging the facts or grounds of attachment on which, under the statute, the attachment is authorized, should be made prior to, or contemporaneous with, the issue of the writ." 3 Enc. Pl. & Prac. 5. In Adams v. Lockwood, Englehart & Co., 30 Kan. 373, 2 P. 626, where an affidavit was made 18 days before it was filed or the action commenced, the court held that the intervening time was not so great as to compel the discharge of the attachment, where the affidavit was of some fact which, having occurred, was not subject to change, as, for instance, an allegation that the debt was fraudulently contracted. In Graham v. Bradbury, 7 Mo. 281, a lapse of several days between the date of the affidavit and the writ was held not sufficient to quash. In Wright...
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