Blair v. Morgan

37 S.E. 45, 59 S.C. 52, 1900 S.C. LEXIS 163

• Court: Supreme Court of South Carolina
• Decided: October 2, 1900
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Pope.

G. B. Morgan gave to B. M. Blair a lien on his crops to secure $500 advances made for agricultural purposes, and failed to pay such debt at maturity; but being about to dispose of his crops to defeat the lien of Blair, Blair applied to the clerk of the Circuit Court for Fairfield County for a warrant to enable the sheriff to seize the crops of G. B. Morgan to protect Blair’s lien for supplies. The warrant was issued on the 13th December, 1899, and the sheriff seized the crops on the 14th December, 1899, but the papers and the affidavit were not filed in the clerk’s office until the 18th December, 1899, and were never served upon the said Morgan. The defendant, Morgan, moved before his Honor, Judge James Aldrich, at the February, 1900, term of the Court of Common Pleas for Fairfield County for an order to set aside said warrant upon grounds hereinafter set out. The order was refused by Judge Aldrich. Thereupon the defendant appealed to this Court.

The following is the order passed by Judge Aldrich, to wit: “This is a motion to set aside and vacate a warrant of seizure under an agricultural lien. The warrant was issued by th-é clerk of this Court on- the 13th day of December, 1899. The sheriff made his return on the 14th day of December, and the papers were filed in the office of the clerk of this Court on the 18th day of said month. The defendant moves to set aside and vacate said proceedings upon -the following grounds: ‘First. Because the'said warrant was illegally and irregularly issued. Secondly. Because the said warrant was improvidently issued. Thirdly. Because the affidavit upon which the said warrant was isued was wholly insufficient, and the material statements untrue.’ I cannot sustain these grounds.

“The defendant further relies upon the following grounds: ‘Fourthly. Because no copies of the said warrant were served on the defendant. Fifthly. Because the said affidavit was not filed in the office of the clerk -of Court, as required by law.’ It is contended under these two grounds that the act of 1899, entitled ‘An act to amend section 250 of the Code of Civil Procedure of this State relating to affidavits in attachment cases,’ applies also to the issuing of warrants of seizure for the enforcement of agricultural liens. The act of 1885 (I9 Stats., p. 429-430), entitled ‘An act to amend section 2398 of the General Statutes relative to the enforcement of agricultural liens,’ provides, ‘that the affidavit and statements to be used to obtain such warrant of seizure shall conform, as nearly as may be, to the practice regulating the issuing of warrants of attachments under the Code of Procedure, and the person against whom it is issued shall have the right to move before * * * a Circuit Judge, to vacate said warrant of seizure for any of the causes which would be sufficient to vacate a warrant of attachment issued under the Code of Procedure.’ Now it is contended by defendant’s counsel that the act of 1899, which relates to attachment cases, and which provides that ‘it shall be the duty of the plaintiff procuring such warrant of attachment, at the time of issuing thereof, to cause the affidavits on which the same was granted to be filed in the office of the clerk of Court of Common Pleas * * * within forty-eight hours after the issuance of the attachment/ and ‘also cause copies thereof to be served on the ‘defendant with the summons, if he can be found within the county,’ is an amendment to the act of 1885, relative to the enforcement of agricultural liens. ‘A warrant of seizure,’ as used in the act of 1885, is procured for the purpose of enforcing a lien already in existence or created, ‘while a warrant of attachment’ is procured to acquire or create a lien. This distinction is recognized by the Supreme Court, and it bécomes important in determining the question here raised. In Sharp v. Palmer, 31 S. C., on page 452, Chief Justice McIver, referring to the act of 1885, says: ‘Here, also, it is sufficient to say that we know of no law requiring the service of such papers in a proceeding like this. It will be observed that the act of 1885 does not, as seems to be supposed by counsel for appellant, require that the practice in enforcing a lien shall conform to the practice under the attachment law; but the requirement is “that the affidavit and statements to be used to obtain such warrant of seizure shall conform, as nearly as may be, to the practice regulating the issuing of warrants of attachment.” The only conformity required is in the affidavit and statements in the subsequent proceedings. * * * There is great force, too, in the view presented by the Circuit Judge, that an attachment is in the nature of a mesne process, where copies are usually required to be served.’ In Monday v. Elmore, 27 S. C., p. 131-133, Chief Justice Simpson recognized this distinction, when he said: ‘It must be remembered that this was a proceeding upon an agricultural lien, and while this lien law does provide that the affidavit for a warrant of seizure in such cases should “conform as nearly as may be” to the practice in ordinary attachment, yet there is this material distinction between the two: in attachment cases, there is no lien on the property attached, which it is intended to enforce * * * but in agricultural contracts there is a lien.’ It will be observed that the act of 1899 relates to ‘affidavits in attachment cases,’ and provides that ‘copies shall be served on the defendant with the summons’ thus indicating that the act relates exclusively to the creation of a lien by attachment through a suit commenced, and not to a ‘warrant of seizure’ under an agricultural lien, which is in the nature of ‘a final process’ to enforce a lien already existing. ‘The words of a statute are to be understood in the sense in which they best harmonize with the subject of the enactment and the object the legislature has in view.’ Endlich on Stats., sec. 59. The subject of the act of 1899 is clearly attachment cases. No reference whatever is made to warrants of seizure to enforce agricultural liens. In section 74 the same author says: ‘Upon subjects relating to Courts and legal proceedings, the legislature may be presumed to speak technically, unless from the statute a different use of language is apparent.’ The agricultural lien and the mode of its enforcement is purely statutory; and no statute which does not purport to amend or affect agricultural liens or their enforcement, can apply; and the act of 1899 does not purport to amend the agricultural lien law, or the mode of enforcing such liens, but, as its title indicates, this act amends ‘section 250 of the Code of Civil Procedure of this State, relating to affidavits in attachment cases.’ It .will be further noted that the act of 1885 expressly provides that the ‘affidavit and statements to be used to obtain such warrant of seizure shall conform, as nearly as may be, to the practice regulating the issuing of warrants of attachments,’ &c.; but the act of 1899 makes no reference to ‘warrants of seizure’ under an agricultural lien. In Endlich on Stats., sec. 85, it is said: ‘Upon the principle stated seems to rest the rule that an act adopting by reference to the whole or a portion of another statute, means the law as existing at the time of the adoption, and does not adopt any subsequent addition thereto or modification.’ There is some force, too, in the contention of plaintiff’s counsel, that to apply the act of 1899 as an amendment to the law regulating the enforcement of agricultural liens would be in violation of the letter and spirit of sec. 17, art. III., of the Constitution of the State, which requires : ‘Every act or resolution having the force of law shall relate to but one subject, and shall be expressed in the title.’

“I, therefore, hold that the act of 1899 d°es n°t aPPty to the enforcement of an agricultural lien, and is not an amendment to the act of 1885, or to the law relating to agricultural liens and the mode of their enforcement. The motion is refused.”

The defendant excepts to the order of his Honor, James Aldrich, filed herein on the 18th day of March, 1900:

“1. Eor that his Honor erred, in that he should have held that the affidavit upon which the warrant of attachment was issued in this proceeding, not having been filed in the office of the clerk of Court within forty-eight hours after the issuance of the said warrant, that the said warrant should for that cause be vacated and set aside. 2. For that his Honor erred, in that he should have held that no copy of the said affidavit having been served on the def endant, as required by law, that the said warrant should for that cause be vacated and set aside. 3. For that his Honor erred, in holding that it is not necessary to file in the clerk’s office the affidavit upon which a warrant of attachment under an agricultural lien is issued, within forty-eight hours after the issuance thereof, and that it is not necessary to serve a copy of such affidavit on the defendant.”

It seems to us that the Circuit Judge is in error, as is pointed out in the foregoing exceptions for the following reasons. The law of this State regulating agricultural liens, as set out in section 2519 of vol. 1, Revised Statutes of this State, so far as the method of procuring and issuing a warrant for seizure of crops, is as follows: “Sec. 2519. The affidavit and statements to be used to obtain any warrant of seizure provided for in the two last preceding sections (sec. 2517 relates to applications to clerk of Court to issue warrants of seizure of crops, and sec. 2518 relates to applications to magistrates in liens under $100) shall conform as nearly as may be to the practice regulating the issuing of warrants of attachment under the Code of Procedure; and the person against whom it is issued shall have the right to move before the clerk of 'Court, or trial justice by whom it is issued, or a Circuit Judge, to vacate said warrant of seizure for any of the causes which would be sufficient to vacate a warrant of attachment issued under the Code of Procedure.” * * * Two things, amongst others, appear in this section: first, the affidavit and statements must conform, as nearly as may be, to the practice regulating the issuing of warrants of attachment under the Code of Procedure; and second, a Circuit Judge may vacate such a warrant for any of the causes which would be sufficient to vacate an attachment under the Code of Procedure. Prior to the year 1899, section 250 of our Code of Procedure required that: “It shall be the duty of the plaintiff procuring such warrant (warrant of attachment), within ten days after the issuing thereof, to cause the affidavits on which the same was granted to be filed in the office of the clerk of the Court of Common Pleas * * *” While this section, 250, as it was prior to the year 1899, was of force, -this Court had occasion to consider what these terms meant, and whether they applied to warrants for the seizure of crops under agricultural liens. In Ketchin v. Landecker, 32 S. C., 158, where the Court said, in discussing the filing of affidavits under a warrant of attachment, as required by section 250 of the Code of Procedure: “But be this as it may, it is quite sufficient for us to know that the law-making power has required the filing of the original affidavits; for in the language of O’Neall, J., in Myers v. Lewis, 1 McM., 54: ‘We have no right to do more than to say ita lex scripta estWhile this precise question has never heretofore been brought before this Court, yet in the case of Wagener v. Booker, 31 S. C., 375, it was spoken of, and it was then plainly intimated that a failure to comply strictly with this requirement of the statute would be fatal, even where copies, but not the original, had been filed in due time. Here, however, neither the original nor the copies were filed within the prescribed time, and this zvas clearly fatal” (italics ours). The prescribed time was ten days. So, too, in the case of Doty v. Boyd, 46 S. C., 42, it was held by this Court that the failure to file the affidavit in the office of the clerk of the Court of Common Pleas rendered the warrant null and void, recognizing the authority of the case of Ketchin v. Landecker, supra; and also it was held to apply to and govern warrants to seize crops. What change in the law relating to agricultural liens and warrants for seizure of crops thereunder has been wrought by the act of 1899, 23 vol. Statutes at Large of this State, page 31, which merely changed ten days into two days (or forty-eight hours), and also required copies of affidavits to be served with the summons upon the defendant? All the change made was that the time of filing affidavits with the clerk of the Court is reduced from ten days to two days, and that service of copies of affidavits must be made upon defendant. So that now there no longer exists sec. 250 of the Code of Procedure as it was prior to the act passed in 1899. What practice exists in the Code of Procedure regulating the issuance of writs of attachment? We answer: section 250 of the Code of Procedure, as it was amended by the act of 1899. This being so, the time of ten days in which affidavits, upon which warrants for attachments issue, should be filed in the office of the clerk of Court, is blotted out of section 250 of the Code of Procedure. Where, therefore, section 2519 of vol. 1, Revised Statutes of this State, directs that the affidavits and statements upon which warrants, for seizure of crops for violation of the agricultural lien law, shall conform to the practice regulating the issuing of warrants of attachment under the Code, it must mean the law- as it is set out in the Code of Procedure now or at this date, for the section, 250, as it existed prior to the year 1899, no longer exists. Besides, how can you apply in the year 1900 in your effort to vacate a writ to seize crops that provision of the law which governed in the effort to vacate writs of attachment under the act of 1885 (section 250 of the Code, as it existed prior to the year 1899), when so much of said act as prescribes ten days within which to file affidavits in the clerk’s office no longer exists; but on the contrary two' days (forty-eight hours) is now prescribed? It follows that the affidavits must be filed in forty-eight hours or otherwise 'no law governs.

The Circuit Judge was in error, and his order must be vacated. In my opinion, the judgment of this Court should be: “It is the judgment of this Court, that'the order of the Circuit Court appealed from be reversed and vacated, and that the proceedings be remitted to the Circuit Court to prepare an order vacating the writ for seizure of defendant’s crops;” but the majority affirm the Circuit judgment from which I dissent.

Mr. Justice Gary dissents, and concurs in the dissenting opinion of Mr. Ci-iiee Justice McIver. Mr. Justice Jones concurs in affirming the judgment of the Circuit Court, for the reasons stated in the opinion of that Court.