State ex rel. Myers v. Hodge

• Decision Date: 18 March 1947
• Docket Number: 9878.
• Citation: 42 S.E.2d 23,129 W.Va. 820
• Parties: STATE ex rel. MYERS v. HODGE et al.
• Court: West Virginia Supreme Court

42 S.E.2d 23

129 W.Va. 820

STATE ex rel. MYERS v. HODGE et al.

No. 9878.

Supreme Court of Appeals of West Virginia.

March 18, 1947

[Copyrighted Material Omitted]

Syllabus by the Court.

1. A reasonable contract entered into by an infant for the lease of an apartment necessary for the comfort and shelter of himself and his family cannot be avoided by him on the ground of infancy alone.

2. In an action on an official bond of a constable for a wrongful distress where it appears that the distress in its inception was valid but the sale of the goods distrained is void because of lack of proper notice, the title to such goods does not pass; and the measure of damage to the owner of the goods is the actual loss sustained by him.

3. That part of the Soldiers' and Sailors' Civil Relief Act of 1940, incorporated in Section 530, Title 50, Appendix U.S.C.A., is not applicable to acts by an officer done under a writ of distress, and before the owner of the goods enters the armed service of the United States; and if the officer's acts subsequent to the entry of such person into such service are void, said act can not be invoked as a ground of recovery in an action for wrongful distress.

Scherer Bowers & File, of Beckley, for plaintiffs in error.

Ned H. Ragland, of Beckley, for defendant in error.

LOVINS, Judge.

This action in covenant in the name of the State of West Virginia for the use and benefit of Walter S. Myers against Roy Hodge and the surety on his official bond, Hartford Accident and Indemnity Company, was instituted in the Circuit Court of Raleigh County. To a judgment of that court for plaintiff in the sum of $514.60, the defendant prosecutes this writ of error.

On or about the 1st day of July, 1942, Walter S. Myers, then twenty years of age, entered into an oral agreement with H. D. Irwin for the lease of a three-room apartment in the City of Beckley, West Virginia, at a monthly rental of twenty dollars. Pursuant to the agreement Myers, his wife and child occupied the premises as their home. Myers paid no rent, and on September 2, 1942, Irwin procured a distress warrant from J. P. Meadows, a Justice of the Peace of Raleigh County, for rent in the amount of $68. In the present state of the record we assume that the amount of rent claimed is correct, and was due at the time the distress warrant was issued.

The warrant was delivered to defendant, Roy Hodge, a constable of Raleigh County, who commenced execution of the same on September 2, 1942, by levying on certain personal property and household furnishings belonging to Myers and valued at $514.60.

On the 4th or 5th of September, 1942, Myers left Beckley, and, after working in Bluefield, West Virginia, for one week, he went to Huntington, West Virginia, where on September 14, 1942, he enlisted in the United States Navy.

The exact date when the wife and child of Myers left Beckley does not appear, the trial court having sustained objections to questions intended to elicit that fact, but it is shown that Myers' wife followed her husband to Huntington, and remained there during the time of his service in the Navy.

No effort was made by Myers to contest the issuance, levy of, and purported sale under, the distress warrant, and on October 15, 1942, defendant Hodge advertised the sale of the personal property which he had theretofore levied on, to be held 'on Monday, the 26th day of October, 1942, between the hours of 9 o'clock A. M. and 4 P. M., of said day, at the _____, in Raleigh County, West Virginia, * * *.' It is shown that on October 15, 1942, copies of the foregoing notice were posted at the courthouse of Raleigh County, on a telephone post on Prince Street in the City of Beckley, and near the premises theretofore occupied by Myers. It was stipulated that the notice quoted above was a true copy of the notice as posted, although Hodge testified that the notices posted in fact stated the place at which the sale would be held. On October 26, Hodge attempted to sell the property, but, no bidders being present, he continued the sale until October 28, 1942, on which day he purportedly sold the household goods of Myers to Mrs. H. D. Irwin for $10.25.

Plaintiff and his wife testified that they had not knowledge of the issuance and levy of the distress warrant, nor the sale made thereunder, until after October 28, 1942, when the wife of plaintiff made an effort to obtain the goods from Mrs. Irwin. After his discharge from the Navy, Myers instituted this action in covenant against Hodge and the surety on his official bond.

At the conclusion of all the evidence adduced by plaintiff and defendants, the trial court sustained a motion to strike the evidence of defendants from the record and instructed the jury to return a verdict for plaintiff, but submitted to the jury the question of the amount due plaintiff. After receiving the directions of the court, the jury found a verdict in favor of plaintiff in the sum of $514.60, on which verdict the court entered judgment.

Defendants assign as error the action of the trial court in directing a verdict for plaintiff and rendering judgment thereon. We think the following questions are comprehended within that assignment, and fairly arise on the record herein: (1) Were the issuance and levy of the distress warrant sustained by facts and authorized by law; (2) is the sale of plaintiff's proerty valid; (3) what is the true measure of plaintiff's damages in this action; (4) was the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A.Appendix, § 501 et seq., a bar to the issuance and levy of the distress warrant and the sale thereunder?

Before discussing the merits of the case, however, it is appropriate to pass on the preliminary question whether the action on an officer's bond lies for wrongful execution of a distress warrant. By inference this Court approved such an action in State v. Miller, 104 W.Va. 226, 139 S.E. 711. Therefore, we conclude that the remedy pursued here by plaintiff is proper.

The rights of the parties to this action depend in a large measure on facts and legal principles applicable to the issuance and levy of a distress warrant and the sale thereunder by defendant Hodge.

At common law a landlord had the right to distrain the goods of a tenant, which could be done by a bailiff or private individual. But that right has long since been modified by statute. Moreover, a distress under the common law was effectual only as a security for rent and the goods and chattels of a tenant could not be sold to satisfy the landlord's demand. Smith v. Ambler et al., 1 Munf. (Va.) 596. Under existing statutory provisions, only a qualified officer, such as a sheriff or constable, may make sale of a tenant's goods under a writ of distress. Ferguson et al. v. Moore, 2 Wash. (Va.) 54.

A distress warrant is a writ within the meaning of the Constitution requiring all writs to run in the name of the State. Beach v. O'Riley et al., 14 W.Va. 55. But a distress warrant is not a judicial process, and it is unnecessary to make it returnable before a justice or court. Anderson v. Henry et al., 45 W.Va. 319, 31 S.E. 998. This Court has held that a proceeding by distress for rent, pursuant to Chapter 93 of the Code, 1923, is judicial in character. Newman v. Robson & Prichard, 86 W.Va. 681, 104 S.E. 127. But we have found no opinion of this Court which goes any further in defining a writ of distress and the action thereunder as having juristic qualities. By Chapter 80, Acts of the Legislature, 1925, statutory provision was made for the trial of the issues arising upon the issuance of a distress warrant; but in the revision of the Code of 1931 the provisions of that act were eliminated and the former pertinent statutory provisions as contained in the Code of 1923 were restored. After the revision of the Code of 1931, this Court, in discussing the effect and scope of a distress warrant, said: 'The fact that the amount laid in a distress warrant exceeds $300.00, which is the limit of jurisdiction of justices in civil matters, is not material, because a distress warrant does not operate as a writ to initiate a proceeding for juristic determination of the rights of the parties. There can be no trial on such warrant.' Beirne v. Snyder, 114 W.Va. 691, 692, 173 S.E. 570, 571. It is now provided by statute that 'Rent of every kind may be recovered by distress * * *.' Code, 37-6-9. A distraint for rent must be made within one year after the time it becomes due, and must be made by a sheriff or constable of the county wherein the premises yielding the rent, or some part thereof, or the goods liable to distress may be found. Code, 37-6-12. The warrant is issued by a justice and is founded upon the affidavit of the person claiming the rent or his agent. Code, 37-6-12.

It is not disputed that a proper affidavit was filed with the justice by the landlord claiming the rent, and that a writ of distress was issued and delivered to a constable. So far as disclosed by this record, the constable made a proper levy of the distress warrant, and unless the infancy of Myers eliminated the contractual basis for the relation of landlord and tenant, we do not think that the issuance and levy of the distress warrant was wrongful.

Counsel for Myers directs the attention of this Court to the fact that Myers was an infant. Generally speaking, contracts of infants are voidable, and may be ratified or disaffirmed after majority, and if one who was an infant when he incurred the obligation does not seek to avoid it on the ground of infancy, it stands as a valid and binding liability. Andrews v. Floyd, 114 W.Va. 96, 170 S.E. 897. Moreover, there is an exception to the general rule in that an infant may do acts for his benefit which are binding. ...