Swann v. Summers et al.

• Decision Date: 10 December 1881
• Citation: 19 W.Va. 115
• Parties: Swann, adm'r, v. Summers et al.*(Patton, Judge, Absent.)
• Court: West Virginia Supreme Court

19 W.Va. 115

Swann, adm'r,

v. Summers et al.*(Patton, Judge, Absent.)

Supreme Court of Appeals of West Virginia.

Submitted January 14, 1881.

Decided December 10, 1881.

1.Under the 10th and llth sections of chapter 141 of Code of West Virginia pp. 673-674 providing for a suggestion by a judgment-creditor, that by reason of the lien of a writ of fieri facias there is a liability on any person other than the judgment-debtor and a summons thereon to such third person to answer the suggestion a judgment can be rendered against such third person, only when he owes a debt to the defendant in the execution or has in his hands personal estate of the defendant in the execution, for which debt or estate an action at law could have been brought against him. And if his liability is purely equitable and could be enforced only in a court of equity, no judgment can be rendered against him in such proceeding as a garnishee.

2.A remedy to enforce such purely equitable liability is provided in the 15th section of said chapter and is by a suit in equity in the name of the sheriff or such other officer, as the court may designate.

3.If by any legislation one corporation takes charge of a portion of the property and franchise of another arid conducts its business in part, and by such legislation and action it is responsible to render an account in a court of equity for its actings and doings to the first corporation or its creditors, the creditor of the first corporation, who has issued a fieri facias against the property of the first corporation, can not obtain by the garnishee-process a judgment against the second corporation or any of its debtors. 4. a judgment-creditor of the James River and Kanawha company, who has sued out a fieri facias, can not by a garnishee-process obtain a judgment against the Kanawha Board or any of its debtors.

Writ of error and supersedeas to a judgment of the circuit court of the county of Kanawha, rendered on the 13th day of June, 1879, in an action in said court then pending, wherein Thomas B. Swann, administrator of the estate of Stewart Eagle, deceased, was plaintiff, and Lewis Summers and others, debtors of the James River and Kanawha Company, were defendants, allowed upon the petition of the said Summers.

Hon. Joseph Smith, Judge of the seventh judicial circuit, rendered the judgment complained of.

Green, Judge, furnishes the following statement of the case.

At the February term, 1857, of the county court of Kanawha county Stewart Eagle recovered against the James River and Kanawha Company a judgment for the sum of $5,400.00 with interest from February 23, 1857, till paid and costs $40.00, on which judgment writs of fieri facias issued on March 7, 1857, on August 21, 1857, and on November 9, 1857, all of which were returned " No property found." This judgment was revived in the name of Thomas B. Swann, administrator of Stewart Eagle, in the circuit court of Kanawha county at the October term, 1870, by scire facias; an execution was awarded for the balance then due, $3,967.18 with interest thereon from November 8, 1870, and costs $31.23; and writs of fieri facias issuedsthereon on November 15, 1870, August 5, 1875, and February 15, 1879, all of which were returned " No property found." On February 3, 1879, a suggestion was made, that by reason of the lien of this last execution there was a liability upon Lewis Summers, the Kanawha Board and the Kanawha Valley Bank; and on the same day a summons issued against these parties to answer this suggestion at the next term of the circuit court of Kanawha county. On April 17, 1879, a like suggestion was made and summons issued against C. C. Lewis.

The Kanawha Board answered and set forth a history of the legislation of Virginia and West Virginia with reference to the James River and Kanawha Company and the Kanawha Board, and stated, that under the act of December 2, 1863, it issued certain bonds, which fell due January 1, 1874, and gave a deed of trust on their property &c, to secure the same; that it used the proceeds of these bonds in payment for dredges and other boats, machinery &c. and that under the act of March 2, 1869, (see Acts of 1869, page 75) it issued bonds to the amount of $15,500, 00 falling due January 1, 1881, the proceeds of which were to pay off said bonds before named and a floating debt; that they were also secured by a deed of trust on all its property; of this $3,500.00 had been paid and $1,200.00 was still unpaid; to pay this it had provided a sinking fund, of which Lewis Summers was a borrower of $3,500.00 not yet due, and the Kanawha Valley Bank was also a borrower of $1,399.97, a part of this sinking fund; that this money was all earned by its operations in hiring out the use of its dredges to the United States Government, which was improving the navigation of the Kanawha River, and from tolls on this river, which it had collected. A copy of the last deed of trust is filed with the answer. This deed was dated January 5, 1871, and was recorded February 22, 1871. It conveys to trustees all its interest legal or equitable in the Great Kanawha river, the improvements thereof, the revenues and tolls arising therefrom and all the interests now in its possession or under its control and all the property it hereafter acquires, and all the incomes, rights, franchises and privileges in which it is or may be entitled when the holders of the bonds and interest-warrants secured may claim the benefit of the trust, upon trust to permit it to collect the revenues and tolls of the river and use and control the movable property until there be default in the payment of the interest or principal of the bonds secured. The bonds secured were to be issued to the amount of $100,000.00, payable January 1, 1881, and to bear interest at the rate of ten per cent, per annum payable semi-annually.

The Kanawha Board in this answer denies, as do also all the other garnishees, that they or any of them was at the date of said last named execution or since in any way indebted to the defendant in said execution, the James River and Kanawha Company, or had in their possession then or since in the possession or under the control of any of them any property, effects, rights or credits belonging to the James River and Kanawha Company, or that there is any such lien as suggested by the said plaintiff. The Kanawha Valley Bank and Lewis Summers adopt this answer and admit their indebtedness to the Kanawha Board as stated but deny any indebtedness to the James River and Kanawha Company. C. C. Lewis the other garnishee also denies all indebtedness to the James River and Kanawha Company but admits, that as treasurer of the Kanawha Board he has in his hands $2,960.05, of which $868.49 came into his bands after March 3, 1879. These answers were all sworn to.

On May 24, 1879, the following order was made:

"And at another day, to wit: At a circuit court held for Kanawha county, at the court-house thereof, on the 24th day of May, 1879, this day the suggestee, C. C. Lewis treasurer of the Kanawha Board, filed his answer to the suggestion against him in this cause; and the plaintiff also filed as evidence the report of the Kanawha Board, a statement in writing made by J. D. Baines, secretary of the Kanawha Board, and copies of a judgment in favor of S. Eagle against James River and Kanawha Company, and of S. Eagle's administrator vs. same, with copies of executions issued on last judgment. And defendants, the Kanawha Board and the other suggestees, filed two deeds, one of the Kanawha Board to whom it may concern, and the other of the James River and Kanawha Company to the Commonwealth of Virginia."

The statement of J. D. Baines, secretary of the Kanawha Board, referred to showed in detail the receipts and disbursements of the Kanawha Board from March 28, 1871, to May 1, 1879. The receipts being $110,376.10, and the disbursements $107,188.22, present balance May 1, 1879, $2,877.91. The two deeds referred to were a deed of trust dated and duly recorded July 17, 1871, simply reducing the number of bonds to be issued and secured under the deed of January 5, 1871, referred to and filed in the answer of the Kanawha Board, the amount of bonds issued and to be issued secured by said deed being reduced to $50,000.00, and a mortgage recorded in Henrico county, Virginia, May 30, 1860, and in Kanawdia county June 15, 1860, which mortgage was dated May 25, 1860, and was executed by the James River and Ka- nawha Company to the Board of Public Works of Virginia. This deed on its face states, that it was made under the act of the Legislature of Virginia dated March 23, 1860, and thatit conveyed to the Commonwealth of Virginia the works, property and net revenue of the Kanawha line of improvement from the mouth thereof to the Loup creek shoals, provided, nevertheless, if the said Kanawha Board of directors of said company shall well and truly pay into the treasury of the Commonwealth three and one half per centum on the 15th of June and December of each year on such amount of registered stock as may be issued under said act, till the whole amount of same principal and interest is paid, then the deed was to be void, or otherwise to remain in full force.

On the 26th of May, 1876, the circuit court of Kanawha county in this case made the following order:

" By consent of parties it is agreed, that all the parties, who have been suggested in this cause, shall have the right to give in evidence any matter, which they could have given in evidence if the statute of limitations had been pleaded by them; and they, and each of them, may rely on said statute of limitations in the same manner as if the same had been pleaded in this cause by them; and that the administrator of Stewart Eagle may give in evidence any matter they could have given in evidence on a special replication to the plea of said statute, and may rely on any matter given in evidence in the same manner as if a special replication had...