Middleton's Ex'r v. White

Maxwell J. This is an attachment in equity against the estate of H. 0. Middleton, as a non-resident defendant. It is claimed that the court below erred in refusing to dismiss the bill, because Middleton was not a. non-resident of the State. So far as appears from the record, Middleton during his life time was never before the court, but after his decease, his personal representatives and heirs consented that the cause might be revived against them, and at the next term after the cause was so revived, the personal representative filed his answer, alleging among other things, that the defendant, Middleton, at the time of the institution of the suit, was a resident of the state of West Virginia. By section 16, chapter 125 of the Code, page 601, it is provided that where the declaration or bill shows on its face proper matter for the jurisdiction of the court, no exceptions for want ■of such jurisdiction shall be allowed, unless it be taken by plea in abatement. By section 19, of chapter 106, of the ■Code, page 559, it is provided that if a defendant desire to [574] controvert the truth of facts stated material to the issuing of the attachment, he may file a plea in abatement. In the case of the Bank of the Valley vs. Gettinger, 3 West Virginia 309, it was decided by this court that this question could only be raised by plea in abatement. The next objection is, that the deposition of Stuart, the assignor was improperly read on the hearing of the cause. The evidence of Stuart was clearly incompetent, as Middleton was not living. Code, page 619, section 23. But it is claimed that all objection to the reading of the deposition was waived by the consent of the defendant to take it. The consent was only to the taking of the depositions, and an exception was taken at the time to its being read, on the ground of incompetency. It is also claimed that all exception to the deposition on the ground of incompetency was waived by not being insisted on in the court below. An exception for incompetency is not waived in this manner. Scott vs. Cook 4 Monroe’s Rep. 280; Beverly vs. Brooke 2 Leigh 425; Fant vs. Miller 17 Gratt. 187. The deposition therefore, should have been excluded. Without this deposition, there is no evidence to sustain the decree, except as to the amount of the note for fifty dollars, with interest from November 10, 1860. The decree complained of will have to be reversed, with, costs to the appellant, and the cause remanded. The other judges concurred. Decree reversed.