Northern Neck State Bank Inc v. Gilbert Packing Co

• Decision Date: 13 March 1913
• Citation: 114 Va. 658,77 S.E. 451
• Parties: NORTHERN NECK STATE BANK, INC. v. GILBERT PACKING CO. et al.
• Court: Virginia Supreme Court

77 S.E. 451

114 Va. 658

NORTHERN NECK STATE BANK, INC.

v.GILBERT PACKING CO. et al.

Supreme Court of Appeals of Virginia.

March 13, 1913.

1. Attachment (§ 115^*)—Affidavit—Sufficiency—Alternative Allegations.

An attachment affidavit alleging that defendant was doing, or about to do, either the first or the second or the third of the three acts relied on as grounds for attachment was void; it being essential that at least one of the grounds be stated affirmatively.

[Ed. Note.—For other cases, see Attachment, Cent. Dig. §§ 315-322; Dec. Dig. § 115.*]

2. Attachment (§ 241*)—Abatement—Time.

The authority given under Code 1904, § 2981, to enter judgment abating an attachment, may be exercised at any time before a final judgment disposing of the property attached, though a motion to abate the attachment has been previously overruled.

[Ed. Note.—For other cases, see Attachment, Cent. Dig. §§ 829-838; Dec. Dig. § 241.*]

3. Attachment (§ 122*)—Affidavit—Amendment.

A fatally defective attachment affidavit cannot be amended, but the plaintiff must begin de novo.

[Ed. Note.—For other cases, see Attachment, Cent. Dig. §§ 323-337; Dec. Dig. § 122.*]

Error to Circuit Court, Westmoreland County.

Action by the Northern Neck State Bank, Incorporated, against the Gilbert Packing Company and others. A judgment was entered dismissing attachment proceedings and re leasing attached property, and plaintiff brings error. Affirmed.

J. W. Chinn, Jr., of Warsaw, for plaintiff in error.

W. T. Mayo, of Hague, and T. J. Downing, of Lancaster, for defendants in error.

HARRISON, J. On December 17, 1909, the Gilbert Packing Company, the defendant in error, a corporation operating a canning factory in Westmoreland county, finding itself heavily in debt, sold all of its cases of tomatoes stowed in its factory to V. B. Hardwick, who was engaged in the canning business, and applied the proceeds of sale to certain of its debts; and on the 20th of the same month it sold its canning factory and machinery to Geo. P. Bailey, another canner, and distributed the proceeds of sale pro rata among certain growers of tomatoes who had sold their crops to the company. On the 29th of December, 1909, the Northern Neck State Bank, the plaintiff in error, entered suit against the defendant in error on a note of that company held by it, and at the same time had an attachment issued and levied on the canning factory and the canned goods therein, none of which had at that time been removed by V. B. Hardwick, the purchaser, and also had a copy of the attachment served on Bailey and Hardwick, the purchasers, who were summoned as garnishees. On the 28th of March, 1910, judgment was entered against the Gilbert Packing Company for the amount of the note sued on; and, at the subsequent June term of the court, the defendants in error moved the court to abate the attachment upon the ground that the same was issued on false suggestions, and without sufficient cause. A jury was impaneled to try this issue and found a verdict in favor of the plaintiff, whereupon the court overruled the motion to abate. Hardwick and Bailey, the purchasers, having filed their petitions claiming title to the attached property, that issue was thereupon submitted to a jury, and a verdict was returned holding that the purchasers had a superior title to the property attached by the plaintiffs. Motion was made by the defendants to set aside the first verdict, and by the plaintiffs to set aside the second verdict. The court overruled both motions, but entered no order disposing of the attached property until August 30, 1911, when a final judgment was entered dismissing the attachment proceedings and releasing the attached property from the lien thereof, and from any liability thereunder. To that judgment this writ of error was awarded.

The inquiry at the threshold goes to the validity of the affidavit, which is the foundation of the attachment, and therefore involves the jurisdiction of the circuit court to entertain the proceeding. The affidavit made as the foundation for the attachmentin this case states: "(1) That the defendant is removing, intends to remove, or has removed its own estate, or the proceeds of the sale of its property, or a material part of such estate or proceeds, out of this state, so that process of execution on a judgment, when obtained in said action, will be unavailing; or (2) is converting, or is about to convert, or has converted, its property of whatever kind, or some part thereof, into...