El Al. v. The Bank Of Charleston

• Decision Date: 31 January 1869
• Court: West Virginia Supreme Court
• Parties: Robert M. Sims el al. v. The Bank of Charleston, el al.

3 W.Va. 415

Robert M. Sims el al.

v.The Bank of Charleston, el al.

Supreme Court of Appeals of West Virginia.

January Term, 1869.

1. The only authority for the foreign attachment in equity is given in the 11th section of chapter 151, Code 1860. But, unless the plaintiff's claim be an equitable claim, the only remedy by attachment in equity authorized by this section is a suit and proceeding against a non resident debtor.

2. An attachment in equity cannot be sustained under the 2d section of chapter 151, Code 1860, against an absconding debtor, where it appears that the claim was purely a legal one and ought to have been enforced in a court of law.

3. An endorsement of the object of the suit on a summons in equity, founded on an affidavit as to the non residence of some of the parties who are to be summoned as garnishees, which said endorsement is not directed to the sheriff, or any one else, and which does not require the sheriff to attach the estate of the defendant or to perform any other act in the premises, and which does not run in the name of the State as required by the constitution, has none of the essentials of a valid attachment.

4. Affidavits are stated which are held to be insufficient.

The matter in controversy in this cause arose between creditors of the Bank of Charleston, located in Kanawha county. In 1861 the bank was removed by its officers to Lynchburg, Virginia. In September, 1865, Robert M. Sims made the following affidavit before the clerk of the circuit court of Kanawha county, viz:" West Virginia, Kanawha county, to loit:

"This day Robert M. Sims personally appeared before me, and made oath that the Bank of Charleston is justly indebted to him in the sum of 1, 620 dollars and 08 cents, with legal interest on 541 dollars and 29 cents, from the 27th of February, 1861, and like interest on 631 dollars and 26 cents from the 12th of May, 1861, and like interest on 441 dollars and 53 cents from the 25th of July, 1861. That the Bank of Charleston has removed and is removing its estate and effects from the State of West Virginia, so that process of execution on a judgment in said suit, when it is obtained will be unavailing; that Henry Fitzhugh and the Dabney Salt Company are non residents of the State of West Virginia. That he is informed and believes that the said Henry Fitzhugh, who was president of the Bank of Charleston, has the legal title, in himself, to a valuable tract of land near Ravenswood, in the county of Jackson, which he holds in secret trust for said bank, and that one Park is now in possession of the said real estate for said Fitzhugh; that he does not know the given name of the said Park.

Teste: no. Slack, Clerk."

He also took out a summons in chancery in Kanawha county against the defendants named in the affidavit, on which was endorsed the following:

"The object of this suit is to subject to sale a valuable tract of land near Ravenswood, in the county of Jackson, the property of the Bank of Charleston, but deeded to Henry Fitzhugh for purposes of trust, to satisfy a debt of 1, 620 dollars and 08 cents, with interest due from the Bank of Charleston to the plaintiff, and the costs, and also to subject the rents in the hands of the said Park, and to attach the said lands and rents for the purposes aforesaid, in the hands of said Park, and to restrain the said Fitzhugh, and the said bank, from selling and conveying away said tract of land.

Teste: John Slack, Clerk."

He also took out a summons directed to the sheriff of Jackson county, in like form, and with a like endorsement as the summons in Kanawha county. He took an order of publication against Fitzhugh and the Dabney Salt Company as non residents.

The summons to Jackson county was returned with the following endorsement by the sheriff: "I, this day, by virtue of the within attachment levied the same upon 175 dol lars in the hands of Robert Park, and also upon 1, 025 acres of land charged on the commissioner's books of Jackson county, West Virginia, dated November 14th, 1865."

At March rules, 1866, the complainant filed his bill setting forth his claim, which consisted of the proceeds of certain notes collected by the bank belonging to complainant, and alleging that the bank was established by law at Charleston, and was, in 1861, carried by the president, who was a non resident, to eastern Virginia, whence it was taken in 1863 to Europe. It further alleged that the land in Jackson county was held for the bank in secret trust to Fitzhugh, the president; that Park was the agent for the sale of it and had some funds derived from rents and sales. It prayed that Fitzhugh and Park be restrained from further sales, and that the land be sold by order of the court to satisfy complainant's debts. By leave, other parties, the firm of Ivuhn & Co., were made defendants and another attachment was issued against the effects due the bank in their hands.

James Ruffuer also brought suit in chancery, in Kanawha county, on the 28th day of March, 1865, against the Bank of Charleston, as a non resident debtor, for certain deposits amounting to 2, 250 dollars, and sued out a summons against it and the Kanawha Cannel Coal Mining and Oil Manufacturing Company, seeking effects in the hands of the latter due the bank. As this affidavit, order of attachment and return in the case was not considered here, but only the same process in relation to the land in Jackson county, it is not necessary to introduce them. But the affidavit on which the order of attachment was predicated, and which appears to be the only one made by Ruffner, none appearing in the record as having been made after the filing of the supplemental bill, is as follows:

"The complainant, James Ruffner, this day made oath before me, John Slack, clerk of the circuit court for said county, that the defendant, the Bank of Charleston, is indebted to him in the sum of 2, 250 dollars with legal interest on 1, 000 dollars, part thereof, from the 21st day of March, 1860, until paid, and like interest on 1, 250 dollars residue thereof, from the 2d clay of May, 1861, until paid, and that the said claim is just, and that there is present cause of action therefor, and that the assets of said bank have been removed by Henry Fitzhugh, president of said bank,...