Mountaineer Engineering Co. v. Bossart, No. 10173

• Court: Supreme Court of West Virginia
• Writing for the Court: GIVEN
• Citation: 57 S.E.2d 633,133 W.Va. 668
• Parties: , 50-1 USTC P 9272, 42 A.F.T.R. 191 MOUNTAINEER ENGINEERING CO. v. BOSSART et al.
• Decision Date: 14 February 1950
• Docket Number: No. 10173

Page 633

57 S.E.2d 633 133 W.Va. 668, 50-1 USTC P 9272, 42
A.F.T.R. 191 MOUNTAINEER ENGINEERING CO.
v.
BOSSART et al. No. 10173. Supreme Court of Appeals of West Virginia. Submitted Jan. 31, 1950.
Decided Feb. 14, 1950.

Syllabus by the Court

1. A check, drawn on a general bank account, though delivered to the payee, does not of itself constitute an equitable assignment.

2. A trust arising by virtue of Title 26, Section 3661, United States Code, [26 U.S.C.A. § 3661] cannot be enforced unless the funds can be traced and identified.

McCamic & Clarke, Wheeling, Charles McCamic, Wheeling, Kountz, Fry, Staley & Meyer, Pittsburgh, Pa., for appellant.

Theron L. Caudle, Asst. Atty. General of the United States, Ellis N. Slack, Special Asst. to the Atty. Gen., Frank K. Foster, Special Asst. to the Atty. Gen., C. Lee Spillers, U. S. Atty., Clarksburg, Howard Caplan, Asst. U. S. Atty., Clarksburg, for appellee, United States of America.

GIVEN, Judge.

In August, 1947, the appellant, Mountaineer Engineering Company, a corporation,

Page 634

obtained a judgment against [133 W.Va. 669] Charles C. Bossart for $4,786.55 in a United States District Court in Pennsylvania. The plaintiff filed its bill of complaint in the Circuit Court of Monongalia County, setting up its foreign judgment and praying a judgment thereon in that court against Charles C. Bossart. An affidavit having been filed in the cause stating the defendant, Charles C. Bossart, to be a non-resident of West Virginia, an attachment was issued and levied pursuant to the provisions of Article 7, Chapter 38, Code, 1931, as amended, upon the funds of the defendant Charles C. Bossart on deposit in the First National Bank of Morgantown. This levy was made at four o'clock in the afternoon of February 3, 1948. A second attachment was levied on the 5th day of February, 1948. At the time of the levy of the attachments there was on deposit in said bank, in the name of 'Charles Bossart', $234.96 and in the names of 'Charles C. Bossart or Lois M. Bossart', $2,146.22. Bossart does not contest the validity of the attachment. On January 30, 1948, Bossart mailed to the Federal Collector of Internal Revenue two tax returns indicating a tax liability of $282.81 for federal insurance contributions tax, and liability of $1.624.66 federal income tax. On the same day Bossart executed two checks, drawn on said bank, covering the respective tax returns, and mailed them to the Collector with the returns. On the following day there was deposited in...