Hall v. Packard

Dent, President: Hannah Hall and W. G. Morgan, late partners doing business as the Dary Coal Company complain of a judgment of the circuit court of McDowell County,- rendered on the 17th day of September, 1901, dismissing their bill and attachment against Mark Packard and F. M. Boynton, partners trading as Packard and Boynton, on demurrer for the reason that service of summons had been had on the defendants in said county. Plaintiffs sued defendants as non-residents in chancery and filed an affidavit to this effect, obtained an attachment, and had it levied on a'-tract of land belonging to one of the defendants. Summons was served upon both of them in McDowell County. They appeared, craved oyer of the writ and return thereon, and demurred to the bill, the only grounds of demurrer being service of summons' upon them. The demurrer was sustained. This action of the court was certainly unjustifiable and erroneous. The object of an attachment against a nonresident is to seize and hold his property to answer any decree or judgment that may be obtained against him, and service of summons on, neither makes him a resident nor releases his property. Section 17, chapter 106, Code, contemplates personal service on non-residents, but such service cannot abate the attachment. The quotation of defendants’ counsel from Long v. Ryan, 30 Grat. 720, shows this wherein it says: “While on the other hand the casual or temporary sojourn of a person in this State, whether on business or pleasure, does not make him a resident [266] of tbe state within the meaning of the attachment laws, especially if his personal domicile be elsewhere.” Counsel also quotes from Andrews v. Munday, 36 W. Va. 22: “In order to sustain an issue that a party is not a resident he has only to establish the fact of actual resident in this State under such concomitant circumstances as make it entirely practicable to serve him with process and to reach his property according to the course of the common law.” They stop short off here and comment: “The court will note that in the case at bar it was ‘entirely practicable' to serve the defendants with process'and to reach their property according to the common law.” It is certainly true that service of process was had on them, but still if they are non-residents of the state, they may dispose of their property herein and transport the proceeds beyond the jurisdiction of the court before judgment may be obtained against them. It may, be said a resident might do the same thing. A resident is not so likely to do so, and if he attempts to do so, an attachment may be issued against him. The law makes a distinction in favor of the resident in this respect as over the non-resident. If the counsel had continued their quotation from Andrews v. Munday, they would have perceived this difference. This Court continuing in explanation of the clause quoted, says: “If a man’s family has been removed to this state or if having no family, he has himself removed here, and entered into business, and his means and property have been brought here, and he dwells- here, and his business engagements in this state are such as to render his stay wholly uncertain and indefinite as to duration, he is not a non-resident of this state within the purview of the attachment law.” There is nothing in the service of summons to show that these defendants have their families in this state or having no families, have removed here and entered into business and have brought their means and property and dwell here. On the contrary they may be temporary sojourners or travellers in the state on business or pleasure. The demurrer of the defendants was therefore improperly sustained. The judgment is reversed, the demurrer overruled and cause remanded for further proceedings. Reversed.