Reed v. McCloud

• Decision Date: 03 February 1894
• Citation: 18 S.E. 924,38 W.Va. 701
• Parties: REED et al. v. McCLOUD et al.
• Court: West Virginia Supreme Court

18 S.E. 924

38 W.Va. 701

REED et al. v. McCLOUD et al.

Supreme Court of Appeals of West Virginia.

February 3, 1894

Submitted January 15, 1894.

Syllabus by the Court.

Section 1, c. 106, of the Code, among other things, prescribes that the affidavit made for the purpose of having an order of attachment shall state the nature of the plaintiff's claim, and the amount, at the least, which the affiant believes the plaintiff is justly entitled to recover. Held, the term "justly" is not superfluous, or insignificant, but is a material qualification of the rest of the phrase, "entitled to recover," and it, or its equivalent, must be used, in order to constitute a substantial compliance with the statute.

Error to circuit court; Logan county; Thomas H. Harvey, Judge.

Action by Reed, Peebles & Co. against C. H. McCloud and others. From an order quashing the attachment issued, plaintiffs bring error. Affirmed.

James H. Ferguson, for plaintiffs in error.

HOLT J.

This is a suit in equity, by attachment, commenced in the circuit court of Logan county on the 27th day of October, 1891; and on the 28th day of October, 1891, the plaintiffs filed the bond and affidavit for attachment against the property of defendants, and the attachment was thereupon issued and levied on certain goods, wares, and merchandise, also upon 385 acres of land made up of six contiguous tracts. Plaintiffs' bill was filed at January rules, 1892, and at the April term of the circuit court, viz on April 28, 1892, the defendants, by their attorneys, moved the court to quash the order of attachment sued out and levied, because the affidavit was defective and insufficient to authorize such order of attachment; which motion the court sustained, and quashed the order of attachment, and the plaintiffs appealed under eighth clause of section 1, c. 135 of the Code.

Under the one general government there are 44 state governments foreign to each other within the meaning of the attachment law, whose citizens own property, or have debts due them, in other states, who constantly carry on with each other commercial dealings and business transactions in large numbers and of great value; so that the attachment law is not only useful, but has become indispensable, and the tendency is to widen its scope and enlarge its usefulness in various ways, according to the exigencies of the times. Many statutes on the subject have been enacted in Virginia and in this state, and these laws have been carefully revised, and the remedy extended, in the revisals of 1819, 1849, and 1868, and statutes since, in which the revisers have recognized the great importance and necessity of the proceeding, and have made it their special endeavor to render the law giving this remedy "clear, precise, and methodical," which has resulted in chapter 106 of the Code, (see Ed. 1891, p. 742,) giving, among other things, an attachment in equity, as well as at law, for a debt or claim, legal or equitable, owing to the greater flexibility and other advantages of the remedy in equity, and upon the claim, whether it be due or not, subject to certain provisos and conditions, (see latter clause of section 1, c. 106,) and with leave to file a supplemental affidavit in certain cases; thus showing a disposition to enlarge and advance the remedy, which, with a slight extension of the right to amend and supplement the affidavit, would be fully up to the most advanced Codes on the subject. The affidavit prescribed is short and simple. The plaintiff, or some credible person, shall state "the nature of the plaintiff's claim and the amount at the least which the affiant believes the plaintiff is justly entitled to recover," adding, in the case of foreign attachment, that the defendant is a nonresident of this state, and, in the case of a domestic attachment, some one or more of the grounds specified, with the material facts relied upon to show their existence. He shall state the amount, at the least, which he believes the plaintiff is justly entitled to recover. It is true this concise, clear, and precise formula is not sacramental, but it is nevertheless jurisdictional, and there should be a reasonable degree of certainty in so important a matter, being of interest to others as well as to the parties. It is true that, when the purchaser's title to the land attached and sold is hereafter impeached for insufficiency of the affidavit, the court may go a long way in the endeavor to uphold his title but, where the question has been presented at the inception of the suit, the courts of this state, through a long course of decisions, have shown a disposition not to tolerate any experimentation, either by substitution or omission, with this part of the affidavit prescribed by the statute, but to abide by the words the lawmaker has seen fit to use, so that no clause, sentence, or word of this fundamental part of the affidavit shall be treated as superfluous or insignificant and for the following reasons: (1) This part of the affidavit is short and simple. It is against public policy and general convenience to needlessly endanger the jurisdictional element of so important and useful a remedy, by involving it in the confusion and uncertainty of omitting words as meaningless, or replacing others with their equivalents. (2) It is due to the court that its time should not be consumed unnecessarily, in determining whether the word used by the affiant is the equivalent of the word used in the statute, or whether the word left out of the...