The Farmer's Bank Of Va.. v. Gettinger

• Decision Date: 31 January 1870
• Citation: 4 W.Va. 305
• Court: West Virginia Supreme Court
• Parties: The Farmer's Bank of Virginia et al. v. J. H. Gettinger.

4 W.Va. 305

The Farmer's Bank of Virginia et al.

v.J. H. Gettinger.

Supreme Court of Appeals of West Virginia.

January Term, 1870.

1. The Farmer's Bank of Virginia, being a domestic corporation in Virginia, before the division, and having branches in the territory which became West Virginia, from the date of the division continued in law and in fact a domestic corporation of the latter State as effectually as it had been under the former State, and as such was liable to be sued, and was not liable to be proceeded against as a foreign corporation.

2. Where such an affidavit as the law requires to be made, upon which to predicate an attachment, is, in fact, made, the accidental omission of the clerk, before which it was made, to sign it at the time, is not sufficient to vitiate the attachment properly issued thereon.

3. Where a party is summoned as a garnishee to answer the amount of his indebtedness to a bank of circulation, he cannot offset that indebtedness with the notes of circulation of the bank acquired after the service of the summons on him, the lien of the creditor being fixed on the indebtedness existing at the time of the service. Nor does the provision of the statute requiring the bank to receive its notes in payment of debts due it, alter the case. But he is entitled to offset the notes of the bank held bona fide by him at the time of the service of the summons.

This case arose in Berkeley county, and the summons was returnable to April rules, 1866. The action was assumpsit, An affidavit appears in the record, dated March 14th, 1866, (not signed by any one, though the testimony of the clerk of the circuit court of Berkeley county proves that it was made by the plaintiff, before him), stating that the defendant, The Farmers' Bank of Virginia, was justly indebted to plaintiff in the sum of 2000 dollars; that there was present cause of action therefor; and that the bank and its corporate authorities were non residents of the State, and had debts or estate due it within the county.

Upon this an attachment issued, dated March 15th, 1866, and was served on William T. Snodgrass, as trustee, &c., as garnishee.

Upon the first calling of the cause, at what date does not appear in the record, the defendant moved the court to dismiss the summons and send the case back to rules, upon the grounds that the summons could not be sued out in Berkeley county, and because the summons had not been served on the defendant according to law, it having been proceeded against as a non resident or foreign corporation by attachment and order of publication, when it was a corporation holding a charter under the constitution and laws of West Virginia. This motion was overruled, the court holding it to be a foreign corporation, and that the process was properly served by order of publication, and that the persons named as owing debts to it were properly summoned as garnishees; to which the defendant excepted.

John M. Godden and Samuel C. Robinson, subsequently, at what precise time the record is also silent, filed their petition, alleging that it was a corporation of this State, and could not be proceeded against by foreign attachment; that by a law passed by the legislature of Virginia, in February, 1866, the bank was authorized to make an assignment for the protection and benefit of all of its creditors, which it shortly afterwards did, and before the proceedings of the plaintiff were commenced, to the petitioners as trustees, &c.

Snodgrass answered the summons, that he had in his possession, at the date of the service of the attachment on him, 246 dollars in notes of circulation on the bank, and that he owed it as trustee of one H. Tabb, a gross sum of 1, 598 dollars and 77 cents; that at, and prior to, the time of the service of the attachment on him, he had an arrangement with the cashier of the Farmers' Bank at Winchester, Virginia, to receive the circulating notes of the bank in discharge of notes due to it by Tabb, and that such was its usual course of business; that at the time of the service of the attachment, and when this understanding was had, the bank had made no assignment and had not gone into liquidation; that by the proceedings of the plaintiff', Gettinger, he had been unable to complete this arrangement, but claimed the right and privilege of doing so now, and tendered the sum due from him as trustee, to the court, in the circulating notes of The Farmers' Bank of Virginia.

The court gave judgment, at what time does not appear by the record, against Snodgrass, for the whole sum due the bank, less the 246 dollars in his hands at the date of the service of the attachment, to be paid in current par funds, and the 246 dollars to be paid in the circulating notes of the bank.

Snodgrass excepted to the judgment.

It does not appear from the record where the Farmers" Bank of Virginia was located. There was no evidence certified in the record except that of the clerk of the circuit court of Berkeley county, on the question of the making of the affidavit for the attachment.

The opinion of the President furnishes some statements as to the location of the bank.

The defendants brought the case here.

Hon. E. B. Hall was judge of the circuit court of Berkeley county, on the hearing of the defendant's ...