Others v. Others

• Decision Date: 16 June 1887
• Citation: 2 S.E. 927,83 Va. 459
• Parties: Dorrier and others v. Masters and others.
• Court: Virginia Supreme Court

2 S.E. 927

(83 Va. 459)

Dorrier and others

v.Masters and others.

Supreme Court of Appeals of Virginia.

June 16, 1887.

1. Attachment—Levy—Property of Non-Resident.

Code Va. 1873, c. 148, § 8, which authorizes the sheriff to take possession of property attached, where the attachment plaintiff has given bond, is intended to afford an additional security to the plaintiff, of which it is optional to him to take advantage; and under section 7 of the statute, which authorizes the attachment " of any estate " of the defendant, and provides for service of notice thereof on such persons as may be in possession, personal property which is not in the possession of any third party upon whom service of the writ may be made, and belongs to a non-resident defendant, who is absent from the state at the time of the levy, may be levied on in attachment by the same acts as are essential to a valid common-law levy of an execution.

2. Same.

A number of hoop-poles were piled up in separate parcels, with no one to guard them. The sheriff, seeking to levy under an attachment, approached to a point distant three or four hundred yards, from which he could see and could have taken the property into his possession. He gave no notice to any one of the levy, made no public proclamation thereof, as he saw no one to whom to make same, and did not take the hoop-poles into actual custody, because no bond had been given. He made return on the writ. Held, under the attachment statutes of Virginia, (section 7, c. 148, Code 1873,) taking into consideration the bulk and character of the property, a valid levy, as against a subsequent attachment levy in which the same property was taken into actual custody.

Error to the circuit court of the city of Richmond.

Action at law to recover damages for breach of contract. The opinion states the case.

Mr. Martin, for appellant.

Jackson Guy, for appellee.

Richardson, j. This is a writ of error to a judgment of the circuit court of the city of Richmond, rendered on the sixth day of June, 1885, in an action at law instituted in said court by F. M. Masters, S. Groves, J. B. Williams, and S. D. Williams, against Josiah Harris, a non-resident of the state of Virginia, to recover $5,000 damages for breach of contract.

The action was brought on the twentieth day of September, 1884. On the same day the plaintiffs in the action sued out an attachment, under the first section of chapter 148, Code 1873, against the estate of the said Josiah Harris, which went into the hands of the sheriff of the city of Richmond at 11 o'clock a. m. on said twentieth day of September, 1884. The plaintiff did not give the bond provided for by the eighth section of said chapter, so as to authorize the seizure of any estate of the defendant levied on. On said attachment the sheriff made return as follows, to-wit: "Executed September 20, 1884, on Norvell, Leak & Co., by delivering toNorvell a copy of the within attachment, and on Decatur Axtell, receiver of the R. & A. Railroad Company, September 22, 1884, by delivering to him a copy of the within, at ten o'clock a. m. Said Axtell is a resident of the city of Richmond, in which this process was executed. P. P. Winston, D. S., " etc. On said attachment the sheriff made this further return: "Executed in the city of Richmond, September 20, 1884, between the hours of 11 and 12 o'clock, by delivering to R. B. Snead, treasurer of the Richmond & Alleghany Railroad Company, a copy of the within attachment, he being a resident of said city, and on John Garrett, cashier of the Chesapeake & Ohio Railway, a copy of the within attachment, —the principal offices of said corporations are located in the city of Richmond, —and executed the same day, at 5 o'clock p. m., by delivering to Jackson Ragland a copy of the within. I also levied this attachment between 11 and 12 o'clock a. m., the same day, on a large lot of hoop-poles found on a slip of land between the dock and the river, near the ship-locks. I did not take the property in possession, as no bond was given for that purpose. Thepresidents of the R. & A. Railroad Company and the C. & O. Railway Company are not in the city of Richmond. Lewis P. Winston, Sheriff, " etc.

On the same day, September 20, 1884, William Dorrier instituted an action at law, in the circuit court of the city of Richmond, against said Josiah Harris, to recover $1,000, with interest from June 2, 1882, subject to a credit of $200 as of August 14, 1883; and in said action the plaintiff also sued out an attachment against the estate of said defendant, Josiah Harris, which went into the hands of said sheriff of the city of Richmond at 1 o'clock p. M. on the said twentieth day of September, 1884, on which return was made as follows, to-wit: "(1) Levied, September 20, 1884, on a largo quantity of hoop-poles found on a strip of land between the dock and river, near the ship-locks, at half past one o'clock p. m. Lewis P. Winston, Sheriff, " etc. And this further return was indorsed on said attachment: "Executed in the city of Richmond, September 20, 1884, on John Garrett, cashier of the Chesapeake & Ohio Railway Company, about half past one o'clock p. m., by delivering to him a copy of the within writ; and on the same day, at 5 o'clock p. m., I delivered to Jackson Ragland a copy of the within; and on the twenty-second day of the same month, in the city of Richmond, at ten o'clock a. m., I delivered to Decatur Axtell a copy of the within attachment. The president of the Chesapeake & Ohio Railway was absent from the city of Richmond at the time of service on Garrett, cashier. P. P. Winston, D. S., " etc.

On the twenty-third day of September, 1884, Charles J. Johnson, D. H. Pitts, and William Dorrier instituted a chancery suit, in the chancery court of the city of Richmond, against the said Josiah Harris, to recover of him a large balance said to be due them on settlement of a partnership account; and in said chancery suit, on the same day, issued an attachment against the estate of said Josiah Harris, on which said sheriff of the city of Richmond made return as follows, to-wit: "(1) Executed, September 23, 1884, in the city of Richmond, by delivering to John Garrett, cashier of the Chesapeake & Ohio Railway Company, a copy of the within, —president no inhabitant; the principal office of said company is located in the city of Richmond, —and on Decatur Axtell, Norvell, Leake & Co., and Curtis & Parker, by delivering to each of them a copy of the within; Jackson Ragland not found. Lewis P. Winston, Sheriff, " etc. "(2) Executed on Lewis P. Winston, sheriff, city of Richmond, September 23, 1884, by delivering to him a copy of this writ. P. P. Winston, D. S., " etc.

The facts are substantially these: As to the hoop-poles levied on at the wharves of the Chesapeake & Ohio Railway Company, the plaintiffs in error concede the prior right of the defendants in error, Masters and others, as their attachment was first secured on that company, which had possession of the hoop-poles at its wharves. The controversy is as to the hoop-poles belonging to the debtor, Josiah Harris, individually, which were piled on the strip of land between the docks and river, near the ship-locks, belonging to the Richmond & Alleghany Railroad Company; the said company, however, disclaiming the possession or control of said hoop-poles. These hoop-poles have been sold, and the proceeds thereof, amounting to $2,460.67, which are subject to the order of the court, are the subject of controversy here. In the said action at law of F. M. Masters and others, they recovered a judgment against the attachment debtor, Josiah Harris, for $5,260, with interest on $5,000, part thereof, from September 18, 1884, subject to a credit of $1,250 as of May 1, 1885. In the said action at law of William Dorrier, he recovered a judgment against said Josiah Harris for $1,000, with interest from June 2, 1882, and costs, subject to a credit of $200 as of August 14, 1883.

The said chancery suit of C. J. Johnson and others against Josiah Harris being yet undetermined, it had not been ascertained what amount, if anything, was due to the plaintiffs from the defendant therein, on account of the partnership transactions between them. And attachments having issued in saidtwo actions at law, and in said chancery suit, and the said attaching creditors, William Dorrier and others, and C. J. Johnson and others, having filed their petitions as aforesaid, contesting the validity of the lien asserted by the plaintiffs in said first-named action at law, —of F. M. Masters and others against Josiah Harris, —the said circuit court of Richmond, at the hearing, rendered judgment in favor of the validity of the attachment lien asserted by F. M. Masters and others, and giving it priority over said other attachments, and directing the said fund to be paid accordingly. To said judgment William Dorrier and others obtained from one of the judges of this court a writ of error and supersedeas.

It is conceded, on all hands, that each of the attachments was regularly sued out. It is also conceded that the levy of the attachment of the defendants in error was first made; but it is insisted by the plaintiffs in error that that levy was invalid, and that no lien was acquired thereby. Hence the controversy grows out of the manner of executing the attachment of the defendants in error, F. M. Masters and others.

When these attachments were sued out, and for some time prior thereto, the defendant, Josiah Harris, was a non-resident of the state of Virginia, and was absent therefrom. The hoop-poles, the proceeds of which is the subject of controversy, were piled on an open strip of land belonging to the Richmond & Alleghany Railroad Company. It seems that these hoop-poles had been transported by the said railway company, for said Harris, along its line to the point where they were piled when levied on. There is no question that these poles were the individual property of said Harris....