Smith v. Parkersburg Co-op. Ass'n

• Citation: 37 S.E. 645,48 W.Va. 232
• Parties: SMITH. v. PARKERSBURG CO-OP. ASS'N.
• Decision Date: 17 November 1900
• Court: Supreme Court of West Virginia

48 W.Va. 232

37 S.E. 645

SMITH.

v.PARKERSBURG CO-OP. ASS'N.

Supreme Court of Appeals of West Virginia.

Nov. 17, 1900.

APPEAL—REVIEW—NEW TRIAL — JUDGMENT — LIEN IN ATTACHMENT—RIGHTS OF THIRD PARTIES. 1. Where a motion for a new trial is on the ground that the verdict was contrary to the

[37 S.E. 546]

evidence, and the motion is denied, the opinion of the trial court is, on such point, entitled to great respect in the appellate court, which will grant such new trial only in case there has been a plain deviation from right and justice.

2. Mistake of judgment, or want of attention or capacity of counsel, afford no just or proper grounds for granting a motion to reopen a case.

3. A judgment in any case, fully matured, so that "it could be tried on the first day of the term, if it had been set for that day, relates to the first day of the term, and this rule applies to. a judgment on attachment.

4. On the rendition of judgment on an attachment the lien of the attachment is merged in the judgment, and the priority of the lien thereby preserved.

5. Before a third party claiming an interest in attached property can be permitted to file his petition under section 23, c. 106, Code, and defend the attachment-on its merits, he must show by his petition that he has an interest in the controversy.

(Syllabus by the Court.)

Error to circuit court, Wood county; Lewis N. Tavenner, Judge.

Action by Lucy K. Smith against the Parkersburg Co-operative Association. Judgment for plaintiff, and defendant brings error. Affirmed.

W. N. Miller, C. D. Merrick, and W. M. Straus, for plaintiff in error.

McClure, Forrer & McClure and Smith D. Turner, for defendant in error.

McWHORTER, P. This is an action of trespass on the case brought in the circuit court of Wood county by Lucy K. Smith against the Parkersburg Co-operative Association, a corporation, to recover damages for personal injuries received by falling into an elevator shaft alleged to have been carelessly and negligently left open in the storeroom of the defendant company, plaintiff having gone into said store for the purpose of purchasing goods, which defendant was there offering and exposing to sale to the general public. The action was commenced on the 26th of April, 1897, and on the 8th day of July following plaintiff filed her affidavit for an attachment. On the 12th day of July an order of attachment was issued from the clerk's office, and on the same day levied upon the stock of goods, etc., of the defendant, as set out in the return of the sheriff, and on the 9th day of August, the return day of the attachment order, the same was docketed. On the 24th of August the defendant appeared, and had the writ of inquiry awarded at rules set aside, and demurred to the declaration and to each count thereof; and on the 1st day of November the parties appeared, and the demurrer, being considered, was overruled, and the defendant entered its plea of not guilty. On the 11th of December a jury was impaneled to try the issue. The trial was conducted from day to day until the 14th of December, when the jury returned a verdict for plaintiff, assessing her damages at $2,500. On the 16th of December defendant moved the court to quash the affidavit for attachment filed July 12, 1897, because the facts alleged In said affidavit as ground for the issuance of said attachment are insufficient, and for other reasons appearing upon the face of the attachment and affidavit; and on the 17th of December the defendant withdrew its motion to quash the affidavit and attachment entered on a former day of the term, and moved the court to set aside the verdict of the jury, and grant a new trial, which motion was overruled, and judgment entered upon the said verdict, and judgment was entered upon the said attachment and order for the sale of the goods so levied on under said attachment unless the said judgment should be paid within 10 days from the date of said order. On the 18th day of December plaintiff filed an attachment bond in the penalty of $10,000 in the case, and on the same day Levin Smith, trustee, asked leave to file his petition contesting the validity of the order of attachment sued out in the case, and claiming the property on which same was levied by virtue of a deed of assignment from the said corporation defendant, dated on the 9th day of December, 1897, which petition was verified by said trustee's oath; and upon the filing of said petition said trustee moved the court to quash the attachment in the case sued out on the 12th of July, and to quash the affidavit on which it was sued out, and the levy of¹ said attachment, and said trustee filed his bond for costs; and on the 4th day of January, 1898, the defendant filed its petition to renew the motion to set aside the judgment entered in the case and for a new trial, accompanied by the affidavit of J. J. Ogden, the president of said defendant company, in support of said petition; and on the 14th of January plaintiff tendered and filed in opposition to said motion the affidavit of C. T. Caldwell, and defendant filed counter affidavits of W. N. Miller, J. H. Wise, W. M. Cox, and Levin Smith in further support of said motion, and on the 15th of January plaintiff filed the affidavit of W. E. McDougle, and the additional affidavit of C. T. Caldwell, in opposition to said motion; and on the 11th of February, 1898, defendant presented to the judge of said court its 10 several bills of exceptions numbered 1 to 10, inclusive, which were signed and made part of the record; and on the 15th day of September, 1898, the court, having considered the motion made by defendant to set aside the judgment rendered on the attachment, and to permit it to renew the motion to quash said attachment and the affidavit upon which the same was founded, and being of opinion that said judgment was properly entered upon said attachment, overruled the motion, and refused to set aside the judgment entered on said attachment and to quash the order of attachment and said affidavit, to which rulings of the court the defendant excepted; and the defendant, desiring to controvert the existence of thegrounds for the attachment as stated in said affidavit, tendered its plea in abatement in writing, dated December 30, 1897, to the filing of which plaintiff objected, which objection was sustained, and the plea refused, and defendant excepted. And the court also overruled the motion of Levin Smith, trustee, entered at a former term, to quash the attachment and the affidavit on which it was founded, and refused to disturb the judgment thereon, to which rulings of the court said Levin Smith, trustee, objected and excepted; and on motion of said trustee, who had filed his petition to contest the validity of said attachment and to try the right of property on which attachment was levied, it was ordered that the validity of the attachment and the right of said property be tried by jury, and that upon the trial the affirmative of said issue should be with the plaintiff. And on the 27th day of December, 1898, the plaintiff and petitioner, appearing, agreed that the matters of law and fact arising upon said petition be submitted to the court, each party waiving a jury; and, after part of the evidence was heard, the petitioner moved that he be allowed to amend his petition by inserting the words, "And the said petitioner, desiring to controvert the existence of the grounds for the said attachment stated in the affidavit of the said Lucy K. Smith, filed therefor, denies the existence of said grounds for said attachment, " to which plaintiff objected, the objection was overruled, the amendment made, and plaintiff excepted. The plaintiff then moved that the trial of the ease be continued, and moved that said petition as so amended be stricken out, and asked that the court, in hearing said motion, take into consideration the entire record, except the bills of exceptions filed in the case; which motion was objected to by petitioner, argued, and submitted, and on the 5th day of January, 1899, the court having considered plaintiff's said motion to strike out the petition, the same was overruled, and plaintiff excepted. On January 12, 1899, the parties appeared, and agreed that the matters of law and fact arising upon said petition be submitted to the court, each party waiving a jury, and, having heard the evidence, the court ascertained that petitioner, Levin Smith, trustee, had no title to, or lien upon, or any interest in the property maintained in said petition as levied upon in said case which was superior to the lien of plaintiff, but had title to, lien upon, and interest in any property or proceeds thereof that might remain after the satisfaction of the said debt of Lucy K. Smith, and that as to so much of said property or the proceeds so levied on by virtue of said attachment as might be necessary to satisfy her debt said petition was dismissed, and that plaintiff recover her costs against said trustee, to be paid by him out of the trust fund in his hands; to which ruling of the court said Levin Smith, trustee, excepted. On the 11th of February, 1899, Levin Smith, trustee, presented his five several bills of exception designated, respectively, "A, " "B, " "C, " "D, " and "E, " which were signed, and made a part of the record. The defendant corporation and Levin Smith, trustee, asked and obtained a writ of error, assigning on the part of the defendant 14 alleged errors, in which the petitioner, Smith, trustee, joins, and 6 assignments by said Smith.

The first assignment is that the court erred In overruling defendant's demurrer to the several counts in the declaration of plaintiff. As appellant makes no mention of it in its brief, and points out no defect, and I find none patent in the declaration, I conclude that the demurrer was properly overruled.

"Second: The court erred in overruling the defendant's motion to set aside the verdict of the jury, and grant it a new trial, as set forth in defendan...