Keyser v. Guggenheimer 1 Supreme Court Of Appeals Of Va.
| Citation | 91 Va. 317,21 S.E. 475 |
| Court | Supreme Court of Virginia |
| Decision Date | 04 April 1895 |
| Parties | KEYSER et al. v. GUGGENHEIMER et al.1 Supreme Court of Appeals of Virginia. |
GUGGENHEIMER et al.1
Attachment against Nonresident—Review on Appeal—Objection not Raised Below— Return of Attachment.
1. An objection to an attachment proceeding on the ground that the summons was made improperly returnable may be taken for the first time on appeal.
2. A summons in equity upon which is indorsed an order for an attachment should be made returnable to a term of court, and not to rules.
3. A decree against a nonresident who has not appeared based purely upon an invalid attachment of his property is void.
Appeal from circuit court, Alleghany county.
Action by Guggenheimer & Co. against Keyser, Simpson & Co. An attachment was levied on the property of defendants, as being nonresidents, and thereafter defendants executed a joint assignment to William M. and J. T. McAllister, trustees. Prom a decree declaring plaintiffs' attachment a lien on the defendants' property superior to the rights of the deed of trust creditors, the trustees appeal. Reversed.
Wm. M. & J. T. McAllister and R. L. Parrish, for appellants.
John T. De Laney, for appellees.
On the 11th day of November, 1892, the appellees instituted a suit in equity in the circuit court of Alleghany county against Keyser, Simpson & Co. to recover a debt of $816, and also sued out an attachment to attach the estate, real and personal, of G. T. Barnsley in Alleghany county, who, with W. T. Simpson and D. C. A. Keyser, constituted the firm of Keyser, Simpson & Co., on the ground that he (Barns-ley) was a nonresident of the state. The res ident defendants were served with process, upon which was indorsed the attachment, or order to attach the estate of the nonresident defendant, on the 14th of that month; and the attachment was levied on the same day on a large quantity of personal property belonging to the defendant company, of which the nonresident was a member, and an order of publication afterwards made as to him.
The process commencing the suit, and upon which the attachment or order to attach was indorsed, was made returnable to the clerk's office of that county on the first Monday of the following December. The defendant? made no appearance, and the bill filed at the second December rules was taken for confessed as to the resident defendants.
On the 16th day of November, —five days after the suit was instituted, —the members of the defendant firm executed to William M. and J. T. McAllister, trustees, a general assignment conveying all the property, of every kind, owned by the partnership, for the benefit of all the firm creditors. This deed of trust was admitted to record in the clerk's office of the county court of that county on the 18th of that month. At the March term of the circuit court the trustees in the deed of trust filed their petition in the suit, exhibiting with it a copy of the deed of trust, claiming that the lien created by it was paramount to the lien of the attachment, and asked to be, and were, made parties defendant in the suit. At the same term of the court the case was heard upon the bill and exhibits, petition and exhibit, and general replication thereto; and the court decreed that the attachment was a lien upon the partnership property levied on, and superior to the rights of the deed of trust creditors.
From this decree of the court this appeal was taken by the trustees.
The first assignment of error in order, though not the first error assigned by appellants, is that the attachment sued out is void because made returnable to a rule day, when the law at that time (November, 1892) required it to be returnable to a term of the court in which the suit was pending.
It is claimed by the appellees that, since no objection was made to the attachment in the circuit court on this ground by the appellants, they have waived it, and it cannot be considered by this court. This view cannot be sustained. The nonresident debtor has never appeared in the case; no personal service was had upon him; but his property in the state is subject to its laws, and the state has the right to prescribe in what manner that property may be subjected to the claims of his creditors. In this state, statutes have been enacted declaring the manner in which the property of such debtors may be subjected to the payment of their liabilities where there is no lien upon the property for their payment....
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Fisher v. Crowley
...objection that a writ is returnable to a day not a legal return day may be made for the first time on appeal. Keyser v. Guggenheimer (Va.) 21 S. E. 475....
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Fisher v. Crowley
...held that the objection that a writ is returnable to a day not a legal return day may be made for the first time on appeal. McAllister v. Guggenheimer, 21 S. E. 475. ...
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Sorenson v. Howell
...S.; Simpson vs. Voss, supra; Drake 185; a clerk is without authority to insert a return date, contrary to statute; 6122 C. S.; Geiser vs. Guggenheim, 21 S.E. 475; and cases attachment being ancillary to the main action it cannot exist beyond final judgment; Kaylor vs. Co., 87 S.E. 551; Mart......
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Taylor v. Sutherlin-meade Tobacco Co
...that such officer is the agent of the corporation. The rule governing attachment proceedings is thus stated in McAllister v. Guggenheimer, 91 Va. 317, 319, 21 S. E. 475: "In this state statutes have been enacted declaring the manner in which the property of such debtors [nonresident debtors......