McKinsey v. Squires.
| Decision Date | 05 February 1889 |
| Citation | 32 W.Va. 41 |
| Parties | McKinsey v. Squires.(Brannon, Judge, absent.) |
| Court | West Virginia Supreme Court |
Our statute, (Code 1887, c. 106, s. 1,) which provides, that an attachment may be sued out in equity for the recovery of damages for a wrong, is constitutional,
A suit in equity may under the provisions of said statute be maintained to recover damages for the breach of a marriage contract,
Where seduction has been practiced under color of a promise to marry, it is proper to prove, in an action for the breach of such promise, the seduction in aggravation of the damages,
In an attachment-suit in equity, to which the debtors of a nonresident defendant are made parties and charged to be such debtors, it is not error to decree, that the latter shall pay the amount found to be due from them to the non-resident, simply because the order of attachment had not been served upon them.
J. Brannon and C. C. Higginbotham for appellants.
Haymond $ Byrne for appellee.
Snyder, President:
This is a foreign attachment-suit in equity, commenced July 3, 1885, in the Circuit; Court of Braxton county by Mattie E. McKinsey to recover damages from the defendant, Olen B. Squires, for breach of marriage-contract and seduction of the plaintiff by said defendant. The original bill alleged the contract, its breach, the seduction resulting in the birth of a child; that said defendant had fraudulently disposed of all his estate in Braxton county, consisting of a retail store and other property, to his father, who was a participant in the fraud and held said property in trust for said defendant; and that the said Olen B. Squires had left the State and was a nonresident. The only defendants to this bill were the said Olen B. Squires and his father, T). S. Squires. On the day the suit was brought, the plaintiff sued out an attachment for $5,000.00 against the estate of the defendant, Olen B. Squires, which was by the sheriff of said county levied upon the goods in said store, and garnishee process was served upon the defendant, D. S. Squires.
In August, 1886, the plaintiff filed her amended bill making Abe Carper, Levi Leonard, I). D. T. Farnsworth, G. A. Newlon and G. F. Stockart parties, and charging that the defendant Olen B. Squires had a bond on the said Newlon and others for $5,000.00, which, at the time he left this State, he placed in the hands of said Abe Carper, who had collected $300.00 thereon and held the same as the money of Olen B. Squires; that afterwards said bond purported to be assigned to one B. F. Carper and then surrendered, that a new bond was executed in consideration thereof to said B. F. Carper by the defendants, Farnsworth, Leonard, Newlon and Stockart, for $5,300.00, that being the amount of the original bond and one year's accrued interest on same; that both said alleged assignment and the execution of said new bond were simply devices to defraud the plaintiff, and that the obligors in said last-named bond still owed the amount thereof to the said Olen B. Squires; and that the obligors as well as the obligee in said bond had notice of said fraud, and abetted therein.
After depositions had been taken by both sides, and the case had been matured for hearing, the defendant, Olen B. Squires, who had been proceeded against by order of publication, appeared in court and on April 30, 1887, filed his answer to the plaintiff's bill, to which she replied generally; and on the same day the cause was heard on the merits, and a personal decree entered in favor of the plaintiff against the defendant, Olen B. Squires, for $1,000.00 and against the other defendants as garnishees or debtors of the said Ol en B. Squires as follows: Against D. S. Squires, $500.00; against Abe Carper, $300.00; and against the defendants, Farnsworth, Leonard, Newlon and Stockart jointly, $1,000.00 with a proviso, that the payments by all the said defendants should not exceed the sum of $1,000.00 and the costs of suit. From this decree all the defendants have appealed.
It is earnestly contended for the appellants, that, as the cause of action alleged in the bill is for unliquidated damages for a personal injury, a court of equity has no jurisdiction. This contention, it seems to me, is fully answered by our statute, which declares in express terms, that the action or suit may be " for the recovery of any claim or debt arising out of contract or to recover damages for any wrong," and then provides, that " such attachment may be sued out in a court of equity for a debt or claim legal or equitable." Code 1887, c. 106, s. 1. It is unquestionably true, that this statute must be construed strictly; but its language is so direct and positive, that it does not admit of construction. It authorizes a suit by attachment in equity to recover damages for any wrong. But it is claimed that the statute is in violation of our constitution, Art. Ill, s. 13, which declares:" In suits at common law, * *.* the right of trial by jury, if required by either party, shall be preserved." It is enough to say, in reply to this claim, that this is not a suit at common law but a suit in equity. But assuming that the legislature has not the power to deprive a party of the right of trial by jury by simply changing the form of action and giving a court of equity jurisdiction over a purely legal demand, the question still remains: Does this statute necessarily deprive a party of a trial by jury? We have a statute which provides for a trial by jury in any chancery case, when there is a conflict of evidence " or an inquiry of damages." Code 1887, c. 131, ss. 4, 5. In this case, therefore, the appellants, or either of them, if they had required it, could have had a trial by jury; but none of them asked for such trial. I do not think, therefore,...
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