Sims v. Bank of Charleston , 3 W. Va. 415 ( 1869 )

Berkshire, J.

Sims and Ruffher, the attaching creditors, who claim priority of lien on the land in controversy by virtue of their respective attachments, each instituted suits in equity against the bank of Charleston and others in the circuit court of Kanawha county.

The controversy is between them and James H. and Leonora C. Rogers, who obtained separate judgments against said bank and filed their separate petitions in these suits, setting up their judgment liens against the land in controversy and claiming priority of lien over the said attachments on account of their not having been levied on the land in dispute, and also because of their insufficiency.

1. As to the attachment of Sims.

. He sued out what is claimed to be an attachment under the second section of the attachment law, Code of 1860, chap. 151, p. 645, and proceeded against the 'Bank of Charleston (his debtoi’) not as a non resident, but as an absconding debtor who was removing his estate and effects out of this State. His suit, however, is in the nature of a foreign attachment.

The only authority for the foreign attachment is given in the eleventh section of the chapter just cited. But unless the plaintiff’s claim be an equitable claim, the only remedy by attachment in equity authorized by this section is in a suit and proceedings against a non resident debtor. It is not claimed in this case, however, that the Bank of Charleston, the debtor, is a non resident of this State, nor is there anything in the record to show it. But on the contrary, it is insisted here that the attachment issued under the second section of the attachment law before cited, and ought on that account to be sustained. Neither is it pretended that the claim or debt is an equitable claim. On the contrary, it distinctly appears that it was purely legal and could and ought to have been enforced and recovered in a proceeding at law.

It necessarily follows, therefore, as it appears tó me, that there was no authority to issue an attachment in this case, and as a consequence there could have been no valid lien, even if what is claimed to be an attachment in this case had been sufficient in form and substance, and properly levied. But, so far as the record discloses, I think no valid attachment did in fact issue. The paper claimed to be such, under which the lien on the real estate it is claimed was created, certainly cannot be sustained as an attachment. It is only a copy of the endorsement stating the object of the suit upon which the affidavit as to the' non residence of some of the parties, who were to be summoned as garnishees, was founded. It is simply copied and endorsed by the clerk on the alias summons which was directed to the sheriff of Jackson county; but it has none of the essentials of a valid attachment. It does not run in the name of the State of "West Virginia as required by the constitution. It is not directed to the sheriff' of Jackson county (where the land in controversy is situated), or any one else. Nor is the sheriff', or any other person, requested or required to attach the estate of the debtor or to perform any other act or do anything in the premises whatever. And, moreover, it does not seem to have been founded on any sufficient affidavit; nor to have been levied on the land in controversy. In my judgment, therefore, it was clearly a nullity and no lien could be created under it.

2. As to the case of Buffher:

In his bill he alleges that the Bank of Charleston is a non resident debtor; but the attachment or order of attachment on which he relies does not appear to have ever been levied on the land in controversy or the land described in the bill. And, besides, I think it is fatally defective because it does not run in the name of the, State as required, nor is it founded on any sufficient affidavit as required by the statute. For these reasons I think it was invalid and that no lien was or could be created by it.

The decree must be affirmed with costs and damages.