Townsend v. Sparks , 50 S.C. 380 ( 1897 )

The opinion of the Court was delivered by

Mr. Justice Jones.

This is an appeal from an order vacating a warrant of attachment issued against respondent at the instance of appellant under the agricultural lien law. Under this warrant the crops of respondent were seized by the sheriff. Respondent, as plaintiff, brought an action of claim and delivery against the sheriff and appellant, as defendants, and gave bond to obtain the delivery of the said crops to him; but upon the sheriff and appellant executing the required bond, the property was retained by the sheriff. Thereafter, respondent moved before Judge Watts to vacate said warrant on the ground that it was improvidently issued, in that the affidavit upon which it was based is not true, and on the further ground that it was irregularly issued, because (1) no statement of the amount due accompanied the affidavit; (2) the affidavit was not filed with the clerk of the court within ten days after the issuance of the warrant. The Circuit Judge vacated the warrant, basing his judgment solely upon the ground that the affidavit upon which the warrant was issued was not filed with the clerk of said court, as required by sec. 250 of the Code of Procedure, and Rule 69 of the Circuit Court, overruling the other grounds.

Appellant appeals on the following grounds: “1. Because his Honor, Judge Watts, erred in holding that the affidavit upon which the warrant to seize the crop was issued was not filed with the clerk of the court, as required by sec. 250 of the Code of Civil Procedure, and Rule 69 of the Circuit Court. 2. Because said affidavit was actually and legally filed, and his Honor should have so held. 3. Because the respondent, by replevying the property seized under the said warrant of foreclosure, waived his right to move to vacate the said warrant, and his Honor should have so held. , 4. Because the penalty fixed by Rule 69 of the Circuit Court is void, being in contravention of the statute, and his Honor should have so held.”

We consider the exceptions in their inverse order:

1 1. Under sec. 450 of the Code of Civil Procedure, the Justices of the Supreme Court and Judges of the Circuit Courts have authority to meet in general convention and adopt rules deemed necessary to regulate the practice in the Circuit Court, provided such rules are not inconsistent with any statute of the State. We have been pointed to no statute with which Rule 69 is inconsistent, and know of none. On the contrary, sec. 250 of the Code of Civil Procedure provides that “it shall be the duty of the plaintiff procuring such warrant (warrant of attachment under the Code), within ten days after the issuance thereof, to cause the affidavits on which the same was granted to be filed in the office of the clerk, &c.” Rule 69 of the Circuit Court makes it the duty of plaintiff’s attorney, within ten days after the issuance of the attachment, to file with the clerk of the court the affidavits upon which the attachment was granted, and upon failure to do so, defendant shall be at liberty to move the Court to vacate the proceedings for irregularity. In Ketchin v. Landecker, 32 S. C., 157, this Court held that Rule 69 was intended to carry out the provisions of sec. 250, quoted above, and that under sec. 250 and Rule 69, a warrant of attachment issued in an action could be vacated for failure to file the affidavits upon which it was based within ten days after issuance. It is argued that Rule 69 has no application to this case. It is true, that this rule relates directly to practice in the Circuit Court, and has no direct application to a proceeding like this, which arises under a special statutory authority conferred upon the clerk to issue a warrant of seizure in certain cases, the authority of the convention of Justices and Judges being limited to regulating the practice in the Circuit Courts. Sharp v. Palmer, 31 S. C., 452. But Rule 69 is applicable to the case of a warrant of attachment under the Code, as shown in Ketchin v. Landecker, supra, and the acts of 1885, 19 Stat., 429, sec. 2519, Rev. Stat. 1893, relating to the enforcement of agricultural liens, provides that “the person against whom it (warrant of seizure under the agricultural lien law) is issued, shall have the right to move before the clerk of the court, or trial justice by whom it is issued, or a Circuit Judge, to vacate said warrant of seizure for any of the causes which would be sufficient to vacate a warrant of attachment issued under the Code of Procedure.” It follows that a warrant of seizure issued by a clerk of the court under the agricultural lien law may be vacated for failure to file with the clerk the affidavits upon which it was, granted within ten days after the issuance of the warrant. Doty & Co. v. Boyd, 46 S. C., 42. This, by virtue of the act of 1885, supra, and not by virtue of Rule 69, except in so far as that rule has the force of a statute, as applied to sec. 250 of the Code of Civil Procedure.

2 2. The question raised in the third exception, that respondent waived his right to move to vacate the warrant of seizure by the proceedings in claim and delivery for the property seized, does not appear to have been raised before or considered by the Circuit Judge, and is not properly before us, but we may say it is untenable. Segler v. Coward, 24 S. C., 123.

3 4 3. The first and second exceptions may be considered together. Having shown that a warrant of seizure under the agricultural lien law issued by a clerk of the court may be vacated for failure to file the affidavit upon which it was granted with the clerk within ten days after issuance of the warrant, it remains to see if there was in fact such failure to file in this case. In Sternberger v. McSween, 14 S. C., 42, this Court defined what is filing a paper, and quoted with approval the definition in 1 Bour. Taw Diet., 524, as follows: “A paper is said to be filed when it is delivered to the proper officer and by him received to be kept 07i file.” The above mentioned case held that an agricultural lien marked filed by the clerk and immediately thereafter withdrawn by the lienee and retained in his possession, was not a compliance with the act of 1878, requiring that such liens “shall be filed in the office of the register of mesne conveyance for the county in which the lienor resides * * * and he shall keep an index of all such liens so filed, * * * and this shall be a sufficient record of the same.” The evidence submitted to the Circuit Judge tended to show that the affidavit upon which the clerk issued the warrant in this case was prepared by appellant’s attorney and sworn to by appellant before the clerk in the clerk’s office. The affidavit was on the same sheet of paper containing the warrant issued. This paper with the undertaking were left with the clerk without instructions. The undertaking was marked filed, but no such indorsement was made on the affidavit. As soon as he could thereafter, the clerk delivered the warrant and affidavit to the sheriff, who immediately seized respondent’s crops. When the sheriff went to seize respondent’s crops, he showed the affidavit and warrant to appellant. A day or two after the issuance of the warrant and the seizure thereunder, respondent, Sparks, applied to the clerk of the court to see the papers, especially the affidavit. The clerk thereupon, considering it his duty to do so, went to the sheriff’s office, got the papers, including the affidavit, and showed them to respondent for examination, after which the clerk returned the affidavit and warrant to the sheriff. Before the expiration of ten days from the issuance of the warrant, the attorneys for respondent as well as the attorneys for appellant had the affidavit and warrant in their possession for a while, having received them from the sheriff, who had possession or custody of the papers until after the commencement of these proceedings. The Circuit Judge found that the affidavit upon which the warrant was issued was not filed with the clerk of said court, as required by sec. 250 and Rule 69 of the Circuit Court — that is, within ten days after the issuance of the warrant. He doubtless concluded that since the warrant was manifestly left with the clerk, not for filing, but to be delivered to the sheriff, and since it was impossible to deliver to the sheriff the warrant without also delivering the affidavit inseparably attached, the affidavit was also left with the clerk, not for filing but to be immediately delivered to the sheriff. This inference he no doubt thought was further evidenced by the fact that the undertaking was marked filed and the affidavit was not so marked. If the paper was not delivered to the clerk as clerk to be filed, and the clerk as clerk did-not receive it to be kept on file, it was not filed as matter of law. Whether the paper was actually delivered and received for the purpose of filing, is a question of fact. In a proceeding of this kind we have no jurisdiction to review the evidence with a view to ascertain whether the facts be different from what was necessarily found by the Circuit Court, just as we have no jurisdiction to review the facts presented to him on the issue whether the attachment was improvidently issued. Sharp v. Palmer, 31 S. C., 444.

We find no error in the judgment of the Circuit Court. It is, therefore, affirmed.