Marsh v. O'brien

• Decision Date: 10 September 1918
• Docket Number: (No. 3039.)
• Citation: 96 S.E. 795
• Parties: MARSH et al. v. O'BRIEN, Judge, et al.
• Court: West Virginia Supreme Court

96 S.E. 795

MARSH et al.

v.O'BRIEN, Judge, et al.

(No. 3039.)

Supreme Court of Appeals of West Virginia.

Sept. 10, 1918.

(Syllabus by the Court.)

Petition of Pat Marsh and others for writ of prohibition to W. H. O'Brien, Judge, and others. Writ awarded.

O. F. Greene, of Sutton, and Pendleton, Mathews & Bell, of Spencer, for petitioners.

Geo. P. Cunningham, of Spencer, for respondents.

WILLIAMS, J. Pat Marsh and Malinda J. Marsh, defendants in an attachment suit in equity brought in the circuit court of Roane county by Mark Parsons, as plaintiff, petition this court for a writ of prohibition to prevent the enforcement of a decree directing sale to be made of a tract of 22 acres of land situate in Braxton county and attached as the property of said Malinda J. Marsh. Petitioners were proceeded against as nonresidents of the state and made no appearance. Process to answer the bill was issued, directed to the sheriff of Roane county and by him returned "Not found." On the same day process was issued, plaintiff filed an affidavit of nonresidency, and procured a writ of attachment to be issued directed to the sheriff of Braxton county, commanding him to attach sufficient estate of the defendant Malinda J. Marsh to pay the sum of $101.20, with interest from May 12, 1917; that being the amount of plaintiff's claim. The attachment was levied on the aforesaid tract of 22 acres of land. An order of publication was made and completed, and on the 7th of March, 1918, a decree ordering sale of the attached land was entered.

Petitioners challenge the jurisdiction of the court, and seek to prohibit the sale on the ground that the court was without jurisdiction. The purpose of the suit was to recover a debt evidenced by a note executed by defendants to plaintiff, payable at the Roane County Bank, and then overdue. At the time the note was executed defendants resided in Roane county, but before the suit was brought they had become residents of the state of Ohio. Plaintiff insists that, because the cause of action arose in Roane county, the court had jurisdiction of the case and the power to attach the property of defendants in any county in the state. It is admitted that the defendants, nor either of them, had any estate or debts due in Roane county.

Attachment is purely a statutory remedy, and, being In derogation of the common law, it must be pursued strictly according to the statute. This rule applies as well to determining the venue or place of suit as it does to the manner of procedure. The last clause of section 2 of chapter 106, Code (sec. 4456), authorizing the issuance of an attachment, "directed to the sheriff or a constable in any county of this state, " cited and relied on by respondent's counsel, does not authorize any court of the state to issue such writs, but only such courts as have jurisdiction of the cause of action. We have to look to chapter 123 of the Code (sees. 4734-4736) to ascertain in what county suit must be brought. The first section of that chapter reads in part as follows:

"Any action at law or suit in equity, except where it is otherwise specially provided, may hereafter be brought in the circuit court of any county: (1) Wherein any of the defendants may reside, except that an action of ejectment or unlawful detainer must be brought in the county wherein the land sought to be recovered or some part thereof is; * * * or (4) if it be against a nonresident of the state wherein he may be found, or may have estate or debts due him."

Here we find a provision specially applicable to suits against...