Moore v. McElrath

• Decision Date: 09 May 1924
• Docket Number: 11498.
• Citation: 122 S.E. 874,128 S.C. 392
• Parties: MOORE v. MCELRATH ET AL.
• Court: South Carolina Supreme Court

122 S.E. 874

128 S.C. 392

MOORE v. MCELRATH ET AL.

No. 11498.

Supreme Court of South Carolina

May 9, 1924

Appeal from Common Pleas Circuit Court of Spartanburg County; Thos S. Sease, Judge.

Action by T. W. Moore against J. L. Mc-Elrath and another. From an order refusing a motion of named defendant to dissolve an attachment, he appeals. Order reversed, and proceeding dismissed.

N. A Harrison, of Greer, and Lloyd B. Harrison, of Greenwood, for appellant.

Lyles Daniel & Drummond, of Spartanburg, for respondent.

COTHRAN J.

Appeal from an order refusing the motion of the defendant J. L Mc-Elrath to dissolve an attachment issued upon an affidavit alleging the nonresidence of the defendant. The motion was made upon the ground that said allegation was untrue. The matter was heard by his honor, Judge Sease, upon affidavits pro and con. He refused the motion in an order dated August 4, 1923, holding that the evidence submitted convinced him that the allegation of nonresidence was sustained. From this order the defendant has appealed.

It is established that where the validity of an attachment depends upon the truth of the allegations of the jurisdictional facts, the conclusion of the circuit judge upon that issue will not be reviewed by this court (Willard v. Finch, 123 S.C. 56, 116 S.E. 96; s. c., 125 S.C. 32, 117 S.E. 818; Sawyer v. Mabus, 107 S.C. 369, 92 S.E. 1029; Stack v. Haigler, 90 S.C. 319, 73 S.E. 354; Kershaw v. Burns, 91 S.C. 129, 74 S.E. 378; Copeland v. Brown, 103 S.C. 177, 87 S.E. 1002; Norris v. Levins, 81 S.C. 44, 61 S.E. 1103; Grollman v. Lipsitz, 43 S.C. 329, 21 S.E. 272; Roddey v. Erwin, 31 S.C. 36, 9 S.E. 729), unless, as stated in Willard v. Finch, 125 S.C. 32, 117 S.E. 818, his conclusion is "wholly unsupported by evidence, or unless it clearly appears that such finding was influenced or controlled by error of law."

A review of the affidavits submitted upon the hearing of the motion convinces the court that the finding of fact upon which the motion was refused is "wholly unsupported by evidence."

The affidavit of the plaintiff upon which the attachment was issued, and which it is assumed was used at the hearing before Judge Sease, makes the bald statement that the defendant is not a resident of this state but is a resident of the state of North Carolina. It would be doubtless sufficient upon its face to support the attachment, but upon the issue of the truth of that statement is entitled to little weight, if any. That statement is accompanied, singularly enough, with the further statement that the defendant owned certain farming land in Spartanburg county and had an interest in the crop growing thereon, in the farming implements, in the live stock, and in a Ford car.

The counter affidavit submitted by the plaintiff makes no reference to the material fact of nonresidence, except to detail a conversation which he had with the defendant, and supports the affidavits submitted by the defendant. That statement was:

"That he would be at or near Charlotte for two or three weeks, but that he didn't know when he would leave there nor where he would go next; that he expected to follow one Sprouse, who was foreman of a job at that place."

The defendant offered several affidavits...