Simmons v. Simmons
| Decision Date | 18 October 1904 |
| Citation | 48 S.E. 833,56 W.Va. 65 |
| Parties | SIMMONS v. SIMMONS. |
| Court | West Virginia Supreme Court |
attachment—variance—motion to quash— plea in abatement.
1. Inconsistency between the claim stated in an affidavit for an attachment and the demand set up in the declaration constitutes a variance fatal to the attachment.
2. Upon a motion to quash the attachment for such variance, the declaration may be resorted to for the purpose of establishing it, and a plea in abatement is not necessary.
3. An order overruling a motion to quash an attachment is interlocutory, and does not preclude a renewal of the motion.
4. A plea in abatement to an atachment which sets up only matter of variance, appearing from the declaration and affidavit without the aid of the plea, may be treated as a motion to quash.
(Syllabus by the Court.)
Error to Circuit Court, Roane County; Linn Brannon, Judge.
Action by T. R. Simmons against Z. T. Simmons. Judgment for defendant, and plaintiff brings error. Affirmed.
Walter Pendleton, for plaintiff in error.
Schilling & Harper, for defendant In error.
POFFENBARGER, P. The principal questions arising upon the record in this case are as follows: First. Is there a variance, fatal to an attachment, when the declaration is founded upon a written contract binding the defendant conditionally to the payment of money, and the affidavit for the attachment describes the contract as one for unconditional payment of money? Second. Should advantage of such variance be taken by motion to quash or plea in abatement? Third. Can a plea in abatement, setting up the objection, be treated as a motion to quash? Fourth. Does the overruling of a motion to quash an attachment preclude the quashing of it upon a renewal of the motion made before the filing of any plea in the case?
In June, 1902, T. R. Simmons commenced an action of assumpsit with an attachment in the circuit court of Roane county against Z. T. Simmons, and at July rules, 1902, filed his declaration, containing the common counts and one special count founded upon a contract in writing whereby the said Z. T. Simmons bound himself to pay to the plaintiff the sum of $1,200 upon the setting aside, in a chancery suit then pending, of a certain will and a certain deed and the payment by the plaintiff of the defendant's share of the costs in said chancery suit. The last clause of the contract says: "But in the event the deed and will is not set aside, but held as good, then the said Z. T. Simmons is not to pay to T. R. Simmons the said twelve hundred dollars." The attachment affidavit describes the plaintiff's claim as follows: "For amount due upon a written agreement, dated July 21, 1900, for $1,200.00, payable to the said T. R. Simmons and signed by the said Z. T. Simmons, by W. S. Simmons, his attorney in fact" On the 27th day of November, 1902, the defendant, appearing specially, moved to quash the attachment on the ground of insufficiency of the affidavit, and the motion was overruled. On the next day he tendered a plea in abatement, showing the variance of the affidavit from the declaration, and praying that the attachment be quashed. To the filing of the plea there was objection, and the court took time to consider of its judgment. On the 7th day of December, 1903, the court overruled the objection, permitted the plea and a general replication thereto to be filed, entertained a motion to quash, sustained it, and quashed the attachment. The difference between the affidavit and the declaration is very apparent. As the declaration is the basis of the main action, as to which the attachment is a mere ancillary proceeding, the claim or demand set forth in the former must be regarded as the one intended to be enforced. Since the demand set up in the affidavit differs from it, the plaintiff fails to comply with that requirement of the statute which says the affidavit shall state the nature of the plaintiff's claim. It does not state theclaim shown by the declaration, but a different claim. It refers to a written contract of the same date as that set forth in the declaration, but in all other respects the description of the instrument in the affidavit fails to accord with the contract set out in the declaration. But as the affidavit purports to state the nature of the demand, and states one entirely different from the claim described in the declaration, the result is what the courts term a variance. The two papers are inconsistent. The contract upon which recovery is sought would be admissible as evidence under the declaration, but does not accord with the statement found in the affidavit. In Sommers v. Allen, 44 W. Va. 120, 28 S. E. 787, Judge Brannon said: "The cause of action stated in the two papers ought to be the same." This view is fully sustained by the authorities. "A plaintiff may not attach for one cause of action, and, having sustained his writ, declare for another." Hambrick v. Wilkins, 65 Miss. 18, 3 South. 67, 7 Am. St Rep. 631; Ligon v. Bishop, 43 Miss. 527; Focke v. Hardeman, 67 Tex. 173, 2 S. W. 363; Deering & Co. v. Collins, 38 Mo. App. 80. A leading case on this subject is Wright v. Snedecor, 46 Ala. 92. The cases uniformly hold that a difference in substance between the declaration and affidavit is fatal, but there are many decisions holding that slight departures will not overthrow the attachment. De Stafford v. Gartley, 15 Colo. 32, 24 Pac. 580; Whitlock v. Kirkwood, 16 Ark. 488; Evans v. Lawson, 64 Tex. 199. If It be suggested that the affidavit is consistent with the common counts, the reply is that it contains no statement of any claim which could be proven under the common counts. It does not say the plaintiff's claim is one for work and labor, goods, wares, and merchandise sold and delivered, money received to the use of the plaintiff, or any other claim of similar kind.
How shall the defendant avail himself of the defect? Can the court, on a motion to quash, consider the declaration? No reason for inability to do so is suggested. Though for some purposes separate, the attachment grows out of, and...
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