Wando Phosphate Co v. Rosenberg

• Decision Date: 09 July 1889
• Parties: Wando Phosphate Co. v. Rosenberg.
• Court: South Carolina Supreme Court

9 S.E. 969

(31 S.C. 301)

Wando Phosphate Co.

v.Rosenberg.

Supreme Court of South Carolina.

July 9, 1889.

Affidavits in Attachment.

Affidavits in attachment alleging that defendant had disposed of or secreted his property with intent to defraud his creditors are insufficient where they only show that defendant, who was doing a large business, had sold goods cheaply, and in some cases below cost, and state that in the impression of the community he was doing a reckless business.

Appeal from common pleas circuit court of Darlington county; Hudson, Judge.

The Wando Phosphate Company sued Joseph Rosenberg in attachment. Prom an order refusing to grant the motion to vacate the attachment defendant appeals.

Ward & Woods, for appellant. Boyd & Brown, for respondent.

Simpson, C. J. An attachment was granted by his honor Judge Hudson in the action below upon certain affidavits submitted by the plaintiff (respondent.) A motion was afterwards made by the defendant (appellant)to dissolve or discharge said attachment, and affidavits were submitted both by respondent and appellant. This motion was refused by his honor Judge Hudson, who heard the same. The defendant has appealed on the ground that the attachment was both irregularly and improvidently issued, and also upon the further ground that his honor erred in considering the conduct of the defendant sub-sequent to the issue of the attachment in determining the question of irregularity, etc., on the motion to discharge. First, should the attachment have been discharged because of irregularity? This question calls for an examination of the affidavits upon which it was issued, and also for a statement of the legal principles which control in such cases. Attachments are statutory proceedings, and they are intended to summarily dispossess a party of his property, and to hold it subject to the result of an action in progress, and being in direct conflict with that dominion and right which every one has at common law over his own, and which government is constructed to protect, statutes authorizing such proceedings have always been strictly construed, and all of their requirements absolutely demanded to be present. True, they are efficient and useful remedies, and very advantageous to commerce and trade, but still they are harsh and summary, and are only allowed upon the conditions found in the statute, which must be made to appear in the affidavit submitted. This, too, not upon allegations founded upon information and belief and hearsay merely, but upon the averment of facts and occurrences which, if true, would at least furnish prima facie evidence of the existence of the statutory condition upon which the attachment is sought. This is the law in this state, as adjudged in several cases. Myers v. Whiteheart, 24 S. C. 202; Smith v. Walker, 6 S. C. 169; Brown v. Morris, 10 S. 0. 469; Claussen v. Fultz, 13 S. C. 478; Ivy v. Caston, 21 S. C. 583. Now, in the action below the attachment was moved on the ground that the defendant had disposed of or had secreted his property with intent to defraud bis creditors, or was about to dispose of or secrete said property with said intent. These are some...