Reed v. Schwarz, 10639

• Decision Date: 18 May 1954
• Docket Number: No. 10639,10639
• Citation: 81 S.E.2d 725,139 W.Va. 859
• Court: West Virginia Supreme Court
• Parties: REED, v. SCHWARZ.

Page 725

81 S.E.2d 725

139 W.Va. 859

REED, v. SCHWARZ.

No. 10639.

Supreme Court of Appeals of West Virginia.

Submitted April 27, 1954.

Decided May 18, 1954.

Syllabus by the Court.

'The remedy by attachment, being authorized alone by statute and in derogation of the common law, and, moreover, being summary in its effects and liable to be abused and used oppressively, its application will be carefully guarded by the courts and it will be confined strictly within the limits prescribed by the statute.' Point 1, Syllabus, Delaplain & Co. v. Armstrong & Ulrich, 21 W.Va. 211.

A. C. Schiffler, Chester D. Hart, Jr., Wheeling, for plaintiff in error.

Sam E. Schafer, Wheeling, for defendant in error.

GIVEN, President.

Plaintiff, Carroll W. Reed, instituted an action in assumpsit in the Circuit Court of Ohio County, against defendant, Esther Elizabeth Schwarz, for recovery of money alleged to be due on contract. An affidavit for an attachment was filed at the time of the commencement of the action. An order of attachment was issued and served by attachment of certain real estate of defendant. On motion of defendant, the circuit court quashed the order of attachment and dismissed the action. This Court granted a writ of error.

The praecipe was filed in the office of the clerk of the court on December 5, 1952, and directed that the summons be made 'returnable to January Rules, 1953'. On the same day the declaration was filed. There was also filed on the same day an affidavit for an order of publication, on the ground that defendant was a nonresident of the State, which order of publication was duly issued and published. Also on December 5, 1952, plaintiff filed an affidavit for attachment, on which day the clerk issued an order of attachment, which was made returnable 'to the next term of the said Circuit Court of the County of Ohio, at rules to be held for the Circuit Court of Ohio County, on the 5th day of December, 1952'. The sheriff of Ohio County, on the same day, attached real estate of defendant and made return thereof to the clerk's office. It may be noticed that Rule days for the month of December, 1952, had expired at the time of the issuance of the order of attachment.

As above pointed out, the attachment was issued and served on the fifth day of December, 1952, the day it was issued. Subsequent to that time defendant, appearing specially, moved the court to quash the attachment, and plaintiff moved the court to correct the record by striking from the order of attachment the words 'December Rules, 1952', and inserting in lieu thereof the words 'January Rules, 1953'. Some time subsequent to the sheriff's return of the attachment, the return date fixed in the copy of the order upon which the sheriff indorsed his return was corrected, presumably by the clerk of the court, so as to make the return day of the order 'the 5th day of January, 1953'. The other copy of the order found in the record reflects no such attempted correction.

It is the contention of defendant that the error as to the return date of the order of attachment renders the order for attachment void, for the reason that the date fixed for the return day is an impossible date. Plaintiff's position is that the error is clerical only and that the record may be corrected by virtue of Code, 58-2-3, which reads: 'For any clerical error or error in fact for which a judgment or decree may be reversed or corrected on writ of error coram nobis, the same may be reversed or corrected, on motion after reasonable notice, by the court, or by the judge thereof in vacation.'

In Delaplain & Co. v. Armstrong & Ulrich, 21 W.Va. 211, this Court held: '1. The remedy by attachment, being authorized alone by statute and in derogation of the common law, and, moreover, being summary in its effects and liable to be abused and used oppressively, its application will be carefully guarded by the courts and it will be confined strictly within the limits prescribed by the statute.' See Queen v. Man Hospital, 128 W.Va. 574, 37 S.E.2d 443. It is not contended, of course, that inconsequential errors may not be corrected by virtue of the Code provision quoted above. See Shenandoah Valley National Bank v. Hiett, 121 W.Va. 454, 6 S.E.2d 769; Yost v. O'Brien, 100 W.Va. 408, 130 S.E. 442; Mabie v. Moore, 75 W.Va. 761, 84 S.E. 788; Miller v. Zeigler, 44 W.Va. 484, 29 S.E. 981; Bohn v. Zeigler, 44 W.Va. 402, 29 S.E. 983; Stewart v. Stewart, 40 W.Va. 65, 20 S.E. 862; Ballard v. Great Western Mining & Mfg. Co., 39 W.Va. 394, 19 S.E. 510; Stringer v. Anderson, 23 W.Va. 482; Anderson v. Kanawha Coal Co., 12 W.Va. 526; Farmer's Bank of Virginia v. Gettinger, 4 W.Va. 305.

In Ballard v. Great Western Mining & Mfg. Co., 39 W.Va. 394, 19 S.E. 510, the affidavit for an attachment stated that plaintiff was entitled to recover 'at the least $840.24', but the order of attachment required the officer to attach 'the estate of the defendant sufficient to pay $1,500'. It was held that the mistake of 'the clerk in issuing such order of attachment is not such a clerical error as may be corrected on motion, and such attachment should be quashed on motion of the defendant'.

In Miller v. White, 46 W.Va. 67, 33 S.E. 332, 76 Am.St.Rep. 791, involving the sufficiency of an affidavit for an attachment, the Court held: '3. Where there is no service of process or appearance, and the seizure of property of defendant is the foundation of jurisdiction, defective or irregular affidavits for attachment, though they might reverse a judgment in the case for error in departing from the statute, do not make the suit one without jurisdiction, if the cour have jurisdiction in cases of that class. A total want of affidavit for attachment in such case would show there was no jurisdiction, but a mere insufficient averment in the affidavit would not. Cooper v. Reynolds, 10 Wall. 309, .' 46 W.Va. 71, 33 S.E. 333. In discussing the question Judge Brannon used this language: 'Another question: I have no idea that, if there is no jurisdiction for the suit at its start, a second attachment can impart jurisdiction. Jurisdiction, at the start of Carney's suit, rested on the charge that White had absconded and concealed himself from process, and that the debt was fraudulently contracted; and, it being a suit in equity on a legal demand, jurisdiction rested solely on the attachment; and, as the first affidavit was bad, the question arises whether there were jurisdiction,--that is, whether the bad affidavit gave the court jurisdiction, so as to warrant a second attachment. For such a question we must distinguish between void and voidable. The first affidavit, though defective, was only voidable or quashable, not a total nullity; and the attachment gave jurisdiction, notwithstanding the defect in the affidavt. Van Fleet Coll. Attack, § 257; Cooper v. Reynolds, 10 Wall. 308 . Mere error in proceedings does not destroy jurisdiction, if the court has jurisdiction in cases of that class. Drake, Attachem. § 89. Attachment proceedings are not void because an affidavit fails to say that the claim is 'just.' Ludlow v. Ramsey, 11 Wall. 581 . That is the defect in the first affidavit in Carney's Case. A total absence of affidavit would render the suit one without jurisdiction, but a mere insufficient averment in an affidavit would not make the proceeding void, as one without jurisdiction. 1 Shinn, Attachm. §§ 152, 411, note 3; Drake, Attachm. § 87a. * * *'

In Millar v. Whittington, 77 W.Va. 142, 87 S.E. 164, the Court held an...