Altmeyer v. Caulfield

Holt, Judge : ^ As the law was by the Code of 1868 (see section l,c. 106, Code 1868) the plaintiff was required, before being entitled to an order of attachment against the property of the defendant, to file with the clerk of the -court his own affidavit or that of some credible person, stating the nature of the plaintiff’s claim and the amount the affiant believes the plaintiff is justly entitled to recover in the action, etc. By the ac( of March 24, 1882, this section was amended so as to read as the law now is in that part of section 1, c. 106, Code 1891; that is, the words “at the least” were inserted immediately after the word “amount,” so as to read, “stating the nature of the plaintiff’s claim and the amount at the least the plaintiff is justly entitled to recover in the action,” etc. Said act made in that part of the section no other change whatever. The question is: Is this phrase, like the phrase “as near as may be,” merely a directory caution addressed to the affiant, which need not go into the affidavit, oris it intended to be put into the written statement as an essential qualification of that, which must be stated and vouched for by the affiant’s corporal oath, viz. the amount he is justly entitled to recover? We think the latter the correct view, for the following reasons: The legislature is presumed to have possessed complete knowledge of the subject-matter, concerning which it has prescribed this rule of law, and that it has chosen its expressions with reference thereto, using no unmeaning words or phrases;- and especially where the phrase in question is the only amendment made, the best rule to arrive at the meaning of the statute as amended is to abide by the words the lawmaker has used, so that no clause, sentence or word shall be superfluous, void or insignificant. The nature of the subject, the character of the statute amended, the context, and the effect and consequences of the statute must be regarded; and, as we are to presume that the lawmaking [850] power bad some intelligent object in view, the end, towards which this amendment was directed, and the canse, which moved the legislature to make it, must also be considered in ascertaining the meaning in this regard of the act as amended. As to the general character of the act, it relates to “attachment proceedings which spring exclusively from the statute and are in derogation of the common-law. They are somewhat severe in their character, seizing and holding the' property of the alleged debtor for the payment or satisfaction of a claim or demand yet to be established, and for which a judgment may or may not be rendered. The only authority for this proceeding, and the only shield interposed for tlie protection of the debtor, is the affidavit, which the law requires to be made before the attachment shall issue. A full and careful compliance with the statute asffo what the affidavit shall contain and express * * * is most reasonable and just.” Capehart v. Dowery, 10 W. Va. 130-135. It is summary in its effects, and liable to be abused and used oppressively; therefore “its application must be carefully guarded, and confined strictly within the limits proscribed by the statute. An order of attachment is an execution by anticipation. * * * The claim may bo entirely unfounded ; and oven where the demand is just, the order may issue /and be levied before it has become duo or payable”(Delaplain v. Armstrong, 21 W. Va. 211-213) or, I may add-, without being reduced by proper credits and counter-claims, thus destroying the debtor’s business and credit, and causing his complete financial shipwreck^whore-as by the ordinary proceeding of trial and judgment before seizure of his property his business would have been left intact, and his financial standing unimpaired. And the court, in a still later case (Chapman v. Railwuy Co., 26 W. Va. 299-322) commenting on these and other cases, where this strict rule was applied, says, Judge JOHNSON delivering the opinion : “We do not desire to relax the rule in such cases; the affidavit lies at the very foundation.” Under this section, as it was before the amendment, the creditor might swear that he was justly entitled to recover, [851] say five hundred dollars, the amount of the note sued on, when at the same time he owed the defendant three hundred dollars, say for a piano; and so in other cases, especially cases of open accounts, or in cases of unliquidated damages. The words “at the least” were added to purge his conscience as to the amount due, giving in his written statement the true amount “at the least,” after giving all credits and allowing all proper discounts, and not making loose and random statements as to the amount of damages ho has suffered and is entitled to recover, as is often done in the writ and declaration — a very important object when we consider how harsh and oppressive this ex parte proceeding may he made. Therefore the lawmaker has seen fit to put the affiant to the stress of giving in the written statement under oath the amount, and that this is the true amount “at the least;” and he is not excused for giving the full amount as it may appear justly due in the note or account sued on. But, more than that, it gives some effect to the words introduced as an amendment — an amendment not of the common-law, but of a statute — and relieves the lawmaking power of the imputation of having done a vain and idle thing hy making this one insertion, and yet leaving the statute in meaning and effect just as it was before. I therefore regard this qualification of the amount sued for just as essential and important in the eyes of the lawmaker as the amount itself, and the amount thus qualified must be stated in the affidavit. The phrase “at the least” qualifies the amount stated, and not the mode of statement. The affidavit is the foundation of the jurisdiction of the court, and there can be no valid attachment without a sufficient affidavit; and as there can be no sufficient affidavit which does not give a sworn written statement of the amount, so_ for the like reason such written statement can not be sufficient which leaves out what the legislature has thus seen fit to prescribe as a qualification of the amount so to . be given; and the creditor can not leave out such qualification as vain and futile. ¥e think the judgment complained of is right, and ought to he affirmed.