Webster Wagon Co.v. Home Insurance Co. And Peterson.

• Decision Date: 08 December 1885
• Citation: 27 W.Va. 314
• Court: West Virginia Supreme Court
• Parties: Webster Wagon Co. v. Home Insurance Co. and Peterson.

27 W.Va. 314

Webster Wagon Co.

v. Home Insurance Co. and Peterson.

Supreme Court of Appeals of West Virginia.

Submitted June 4, 1885.

Decided December 8, 1885.

1. The return of a sheriff, that he had served a writ on a foreign in-

surance company doing business in this State by serving it on its "lawful attorney," is prima facie a good service of the writ and gives to the court jurisdiction to render a personal judgment against such foreign insurance company. The words "lawful attorney7' on such return are regarded prima, facie as meaning the attorney, on whom the statute-law authorizes such process to be served, and the service upon whom is declared to be equivalent to service on such foreign insurance company, (p. 321.)

2. When in a common law suit a jury is waived, and the case is sub-

mitted to the decision of the court by consent of parties, and the court hears apart of the evidence and then continues the case to the next term of the court, when it hears the balance of the evidence and decides the case on the whole evidence, neither party objecting to its so doing, such judgment will not be reversed for the only reason, that the evidence was submitted at two different terms of the court. Quaere: Would it be reversed for this cause only, even had the party asking its reversal objected to this action of the court below and asked, that the whole case be heard de novo at the term of the court, when it was decided, and his objection to the court considering evidence offered at two different terms entered of record? (p. 324.)

If in an attachment suit against a non-resident defendant the writ is served on him, and a personal judgment is rendered against him, and afterwards the amount due from the garnishee is judicially ascertained to be less than this judgment against the non-resident defendant, such garnishee should be ordered to pay the amount of his indebtedness directly to the plaintiff as a credit on his judgment and ought not to be ordered to pay it to a receiver, and the receiver ordered to pay it to the plaintiff on his judgment against the non-resident defendant, (p. 326.)

If there be a suggestion, that the garnishee has not fully disclosed his indebtedness, and the amount found on the trial to be due from him be ascertained finally to exceed the amount he confessed, there should be included in the judgment against him the costs of such trial, (p. 328.)

Though the indebtedness of the garnishee to the non-resident defendant be such, that the defendant could not sue without first making a demand upon him, yet, though no such demand has been made upon him, he may nevertheless be summoned as a garnishee, and a judgment may be obtained against him as such, (p. 334.)

6. A contingent debt though arising out of a contract can not be garnished. As it would be unjust to the garnishee to render a judgment against him on a contract, when the amount apparently due may according to the terms of the contract be extinguished by subsequent events. But though for their convenience the garnishee and the non-resident defendant keep books in such a way thai the amount apparently due at any timeon their books by the garnishee may be decreased by further enquiry into existing facts, such a debt is not properly speaking contingent, and its payment may be enforced by proceedings against him as a garnishee, (p. 335.)

Statement of the case by Green, Judge:

On July 7, 1882, The Webster Wagon Company brought an action ot assumpsit in the municipal court of Wheeling against the Home Insurance Company of Columbus, Ohio, and in the summons issued the damages were laid at $2,000.00. The summons was in proper form and is signed by the clerk of said court and addressed to the sergeant of the city of Wheeling. The following is his return on said summons:

"I served the within writ within the city of Wheeling as to the Home Insurance Company of Columbus, Ohio, by delivering a copy thereof to William F. Peterson, its lawful attorney, he being a resident of the city of Wheeling, this 8th day of July, 1882, at 10 o'clock a. m.

"Caleb Sylvis, D. S., "For Thomas D. Bennett, C. S."

On the same day oath was made by the treasurer of the Webster Wagon Company before the clerk of said court in his office, that the plaintiff in said suit was entitled to recover in said action $1,363.64 with interest thereon from June 29, 1882, till paid, the claim being for a loss by fire occasioned on the night ot April 20, 1882, destroying and injuring certain property of the plaintiff, which was insured by a policy of insurance issued by the defendant April 2, 1882, which insured said property against loss and.damage by fire; and that the defendant was a foreign corporation. Upon this affidavit being; tiled the clerk of said court issued an attachment in proper form against the personal estate of said defendant sufficient to pay $1,363.64 with interest thereon from the 29th day ot June 1882, till payment and the costs of this suit. This attachment was endorsed by the plaintiffs attorney, that the plaintiff designates William P. Peterson of the city of Wheeling as indebted to the within named defendant, The Home Insurance Company of Columbus, Ohio, and as having in his possession and under his control money and effects of the within named defendant, The Home Insurance Company of Columbus, Ohio. Thereupon on the same day July 7, 1882, the clerk of said court issued the usual garnishee summons requiring said William F. Peterson to appear at the next municipal court of Wheeling and disclose on oath in what sum of money he is indebted to the defendant, The Home Insurance Company of Columbus, Ohio, and what effects and money of said defendant he had in his possession or under his control. This summons was duly served on this garnishee on July 8, 1882, at 10 o'clock a. m. At July rules the declaration in this suit was filed. The defendant failed to appear; and a judgment was regularly taken against it on August 26, 1882, as follows:

," This day came the plaintiff, by its attorneys, and the defendant who was duly summoned, being solemnly called, came not, thereupon it is considered by the court that the judgment entered in the clerk's office of this court against the said defendant stand confirmed. No jury being required by the parties, the court proceeded in lieu of a jury to ascertain the amount that the plaintiff is entitled to recover against the defendant in this action, and having heard and considered the evidence, doth consider that the plaintiff recover against the defendant the sum of $1,377.27, (thirteen hundred and seventy-seven dollars and twenty-seven cents) damages, aggregate amount of principal and interest to August 26, 1882, with interest on said sum of $1,377.27 from August 26, 1882, until paid, and its costs by it about its suit in this behalf expended."

On September 2, 1882, William F. Peterson failing to appear as garnishee as required, a rule was issued against him returnable to the first day of the next term. He then appeared on November 18, 1882, and filed two statements of his indebtedness to the Home Insurance Company, of Columbus, Ohio, one showing a balance due from him of $203.74 and the other showing that there was a balance due from J. C. Alderson an insurance broker of Wheeling to W. F. Peterson from premiums due to this insurance company, the two together making $430.64; but he said that these statements were not correct or complete. Upon his examination on oath and producing these statements and making these answers, it was suggested by the plaintiff, that he had not fully disclosed the debts due by him and the effects in his hands of the defendant, and thereupon it was ordered, that a jury be impanelled to enquire as to such debts and effects as were owed by said Peterson to said defendant or as were in his hands or under his control at ten o'clock on July 8, 1882, and since that date, and a verdict render ot the amount, value and character of such debts and effects, upon which enquiry the plaintiff herein should have the affirmative. The trial of the issue was continued. After various continuances at a session of the court held June 12, 1883, a jury was waived by the parties, and the matters involved were submitted to the court for hearing. The evidence was partly heard, and the further hearing thereof was continued till July 9, 1883. On that day by consent it was further continued till July 17, 1883, that being the second day of the next term of the court, when the case was set for trial. On that day on motion of the garnishee, W. F. Peterson, and on his oath, that he could not go to trial in the absence of his witness, J. C. Alderson, the case was eon tinued till August 27, 1883, when it was again set for hearing. On August 27, 1883, the case came on to be further heard, W. F. Peterson being present, and the court proceeded to hear further testimony in the matter, and having fully heard the evidence and the arguments of counsel the court not being advised of its judgment herein took time to consider thereof, and on Decgmber 17 the court rendered its judgment, which was entered as follows:

" This day came again the plaintiff, by its attorney, and W. F. Peterson, garnishee, by his attorney, and the issue heretofore made as to whether the said Peterson, by his answer of November 18, 1882, fully disclosed his liability to said defendant, having been by consent submitted to the court in lieu of a jury, and the evidence and arguments being heard, the court doth find that on July 8, 1882, the date ot service of the process of garnishment, the said W. F. Peterson was indebted to said defendant in the sum of $475.00 (four hundred and seventy-five dollars.) It is therefore considered by the court that the said plaintiff, the Webster Wagon Company, recover against the said W. F. Peterson the said sum $475.00, together with the costs by it expended in the trial of this issue, the said sum of $475.00, to be applied for and towards the...