Josey v. Reynolds

The opinion of the Court was delivered by Mr. Justice Carter. This action by B. S. Josey, C. B. Windham, J. M. Dowling, R. R. Oates, and L. J. Beasley, as liquidating committee of Merchants’ & Planters’ Bank, of Lamar, S. C., against the defendant, C. L. Reynolds, commenced in the Court of Common Pleas for Darlington County, January 24, 1924, is an action on a promissory note executed and delivered by the defendant unto the said Merchants’ & Planters’ Bank, in the sum of $852, together with provision for the payment of interest and attorney’s fees, dated November 3, 1928, and payable January 15, 1929, in which action a warrant of attachment was sought and procured against the defendant. The first warrant of attachment procured was, on motion of the defendant, vacated by order of his Honor, Judge E. C. Dennis, dated January 29, 1929.' Subsequently the plaintiff procured another warrant of attachment on new or additionál affidavits. The defendant made a motion before Judge Dennis to vacate this second warrant of attachment, but the motion was refused. Later the defendant on additional affidavits made another motion before his Honor, Judge Dennis, in which motion the defendant asked for an order tO' vacate the second warrant of attachment and to rescind the order theretofore made refusing the motion to vacate the said second warrant of attachment. This motion was also refused. From the aforesaid orders of the Circuit Judge pertaining to the second warrant of attachment the defendant has appealed to this Court upon exceptions which will be reported. The question raised by the fourth exception, which should be considered at the threshold of the case, is whether or not an affidavit which does not state a cause of action against the defendant can be augmented by an unverified complaint, which states a cause of action, for the purpose of issuing a warrant of attachment based upon such insufficient affidavit, which affidavit makes reference to such complaint. *354 One of the conditions upon which a warrant of attachment may be issued is that it shall appear by affidavit that a cause of action exists against the defendant, specifying the amount of the claim and the grounds thereof. Section 502, Vol. 1, Code 1922. Respondents concede that the affidavit upon which the warrant of attachment was issued does not comply with this requirement, but it is their contention that the defect is cured because the affidavit makes reference to the complaint which states a cause of action. This Court has held that a verified complaint attached to the affidavit may be used to- augment the affidavit for the purpose of furnishing grounds for issuing the warrant of attachment, but an unverified complaint cannot be used for such purpose. While the respondents do not specifically admit the insufficiency of the verification of the complaint, they do not seem to controvert that position. The verification fe> the complaint was made by an agent, and it is not stated by him that the note sued on is in his possession, nor is it stated by him why the verification is not made by a party plaintiff. We think it clearly appears from the record that the attempted verification of the complaint is not a compliance with the requirement, but that it is defective, and therefore the complaint cannot be used in connection with the affidavit for the purpose of issuing a warrant of attachment based thereon, even though the complaint be annexed to the affidavit. Respondent contends that this point was not sufficiently raised in the motions before the circuit Judge, and for that reason contends that it should not be raised at this time. We do not agree with respondent, but think that the grounds stated by the defendant before the circuit Judge upon which the several motions were based clearly raised this question, and that, under the appellants’ exceptions, the question is properly before this Court. It is the contention also of respondent that the appellant waived any defect in the verification by filing a verified answer to the complaint. Such action on *355 the part of the appellant could in no way change the statutory requirement for issuing the warrant of attachment. The warrant of attachment was not issued on the answer, but was issued on an insufficient supporting affidavit which made reference to an unverified complaint attached, which paper could not augment such insufficient supporting affidavit. The position of respondent is untenable. The further contention of the respondent, that the defective verification in question should in any event be regarded as an affidavit for the purpose of augmenting the defective supporting affidavit upon which the warrant of attachment was issued, is also untenable. The fourth exception is therefore sustained. We shall not pass upon the other exceptions. It is the judgment of this Court that the-orders issued by his Honor, Judge Dennis, appealed from herein, be reversed, and that the warrant of attachment issued in the cause be vacated. Mr. Chief Justice Watts and Messrs. Justices Brease and StabrEr concur.