Rittenhouse v. Harman

• Decision Date: 02 March 1874
• Citation: 7 W.Va. 380
• Parties: RITTENHOUSE v. HARMAN.
• Court: West Virginia Supreme Court

7 W.Va. 380

RITTENHOUSE v. HARMAN.

Supreme Court of West Virginia.

March 2, 1874

1. Under the act of the Legislature on the subject of attachments, passed in 1867, an affidavit that the affiant " thinks" the plaintiff ought to recover the sum claimed, is not equivalent to an affidavit that he " believes" he ought to recover such sum; and is not sufficient to authorize an attachment.

2. Though a bill be multifarious, and but vaguely state the matter on which relief is sought, consent by the parties, to an interlocutory decree that the cause be referred to a commissioner, to audit, state and settle an account of the amount due each of the plaintiffs, is a waiver of any objection to such irregularity; and a demurrer thereafter for such cause, is properly disallowed.

3. When the defendants are all non-residents of the State, and none have before appeared, the record of such consent by the parties, implies that all of the defendants appear and submit to the jurisdiction of the court.

4. When, apparently, two defendants, by counsel, petition for an appeal, which is allowed, and so appear and prosecute the appeal, though, on the hearing evidence is found in the case tending to show that one was dead before the decree appealed from was rendered, yet, in this Court, it appearing that the decree is erroneous, and the other appellant having the right to prosecute the appeal and have the decree reversed as to both, the Court will not, of its own motion, institute an inquiry to ascertain whether the party be living; but will treat him as before the Court, by counsel, and reverse the decree, with costs to both appellants.^[a1]

Sections one and three of chapter one hundred and fifty-one of the Code of Virginia, second edition, are hereby amended and re-enacted so as to read as follows:

" 1. When any suit is about to be, or is instituted, for the recovery of any debt or damages arising out of any contract, or to recover damages for any wrong, the plaintiff may have an order of attachment against the property of the defendant on filing with the clerk of the court in which such suit is about to be, or is brought, his own affidavit, or that of some credible person, stating the nature of the plaintiff's claim, that it is just, the amount the affiant believes the plaintiff ought to recover, and the existence of some one or more of the following grounds for such attachment.

First --That the defendant, or one of the defendants, is a foreign corporation, or is a non-resident of this State; or

Second --Has left or is about to leave the State with intent to defraud his creditors; or

Third --So conceals himself that a summon cannot be served upon him; or

Fourth --Is removing, or is about to remove his property or a part thereof out of this State, with intent to defraud his creditors; or

Fifth --Is converting, or is about to convert his property or a part thereof into money or securities, with intent to defraud his creditors; or

Sixth --Has assigned or disposed of his property, or a part thereof, or is about to do so, with intent to defraud his creditors; or

Seventh --His property or rights in action which he conceals; or

Eighth --Fraudulently contracted the debt or incurred the liability for which the suit is about to be, or is brought.

The affiant shall also state in his affidavit all the facts upon which he relies to show the existence of the grounds upon which his application for the attachment is based. The order may be made at the commencement of the action, or at any time after, and before judgment. It shall be issued by the clerk and may be in form or effect as follows:

A. B., plaintiff )

vs. ) Order of attachment

C. D., defendant, )

The plaintiff in this cause having filed his affidavit, as required by law, the sheriff or any constable of the county of_______is hereby required to attach the estate of the defendant sufficient to pay the sum of_______ dollars and the costs of this suit, and make return of the proceedings under this order to the next term of the circuit court of the county of________Witness, E. F., clerk of said court, this_________day of_______ 18______.

E. F. Clerk.

If the plaintiff files the bond and security required by law to authorize the officer levying the attachment to take possession of the property levied upon, that fact shall also be stated in the order."

" 3. On the application of any person by himself or his agent to any justice, whether his claims is payable or not, for an attachment against the estate of his debtor, accompanied by the affidavit provided for in the first section as amended by this act, and also showing at what time the same is payable, the justice shall issue an attachment against the estate of the defendant, for the amount stated in said affidavit" .

An appeal by Othias Harman and Asa W. Thompson, from a decree of the circuit court of Wirt county, rendered on the 14th day of March, 1872, in a suit in chancery, therein pending, wherein William Rittenhouse and others were complainants and Othias Harman and others were respondents, all of whose names appear in the decision of the Court. The facts sufficiently appear in the opinion of Hoffman, Judge.

The Hon. James M. Jackson, judge of said circuit court, presided at the hearing below.

John A. Hutchinson, Jr., for the appellants.

Walter S. Sands, for the appellees.

HOFFMAN JUDGE:

It is necessary to state but a small part of what the record of this case contains, in order to develope the points decided.

In January, 1869, William Rittenhouse, C. D. Morrill, Benjamin Flint and B. P. Flint, sued out of the clerk's office of the circuit court of the county of Wirt, a summons in chancery against Othias Harman, Daniel Dutsman, Thaddeus A. Mitchell, Jonathan Sherman, A. W. Thompson, Addison Pearson, George L. Wolfe, Edward L. Buckwalter, John J. Throckmorton, Samuel L. Wallace, Milton L. Clark, Mary Sifford and Lewis W. Sifford, her husband, John M. Snyder and ____Hamlin.

And the plaintiffs filed an affidavit of Rittenhouse, in which he makes oath, that the suit is instituted for the purpose of settling up a partnership previously existing between the parties, and for the collection of the sum of $1,162.50, with interest due the complainants Morrill and Rittenhouse; and that affiant thinks they ought to recover at least that sum, with interest and costs, and that the same is justly due. On the summons was endorsed, a recital that the affidavit had been filed, and an order that the sheriff attach the real and personal estate of the defendants, (except that of Throckmorton and Buckwalter,) in the county of Wirt, sufficient to pay the sum of $1,162.50, with interest and costs, and report the proceedings.

And the sheriff returned that on the fourth day of January, 1869, he attached all the right, title and interest of the defendants--naming them-- (except Throckmorton and Buckwalter) in and to an oil lease on the land of the Rathbone Oil Tract Company in the county of Wirt, known as the " Cozzens lease," and a steam engine on the lease, and all the stock and interest of each of the defendants in the Ross County Oil Company.

The plaintiffs filed their bill, in which they allege that in October 1866, they, with the defendants, (except Lewis W Sifford and Hamlin)--naming the others conjointly purchased a leasehold estate in a tract of land in the county of Wirt, containing about four acres, and a steam engine and fixtures thereon, and a lease known as the Cozzen's lease, and a steam engine and fixtures thereon, for the sum of $12,500, and that the parties held different, undivided, interests in the property--Rittenhouse eight fortieths, Morrill four fortieths, Harmon four fortieths, Thompson one fortieth, and the other parties to the suit (except Lewis W. Sifford and Hamlin) interests which were specified: And that each of these paid their respective portions on the leasehold estate: That in November, 1866, they sold two leases on the tract of land mentioned, each containing five eights of an acre, to a corporation...