Millar v. Whittington

West Virginia Supreme Court

Millar v. Whittington

87 S.E. 164, 77 W. Va. 142, 1915 W. Va. LEXIS 23

CourtWest Virginia Supreme Court

DecidedNovember 9, 1915

StatusPublished

Cited by7 cases

This text of 87 S.E. 164 (Millar v. Whittington) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Millar v. Whittington, 87 S.E. 164, 77 W. Va. 142, 1915 W. Va. LEXIS 23 (W. Va. 1915).

Pincite

Opinion

POFFENBARGER, PRESIDENT :

This appeal is from an order overruling a motion to quash an attachment, on the ground of insufficiency of the statement of the nature of the plaintiff’s claim, in the attachment affidavit, which describes it as follows:

[143]*143“A claim and debt arising ont of contract, upon and by the terms of which said contract there is justly due” the plaintiff from the defendants, naming them, “as affiant verily believes, at least the sum of Eight Hundred and Nine Dollars.”

Obviously this statement amounts to no more than a conclusion founded upon facts known to the affiant, brjt not set out, or even indicated, in the affidavit. No fact is given from which the nature of the contract can be known, not even its subject matter. What obligation the defendants took upon themselves is not disclosed, nor is there any. charge or claim of a breach thereof. Numerous decisions*of this court declare insufficiency of a mere claim by way of conclusion. Enough facts must be stated, to show a duty from the defendant to the plaintiff and a breach thereof, as in the case of a declaration or bill. The attachment stands upon the affidavit, not the bill or declaration, and that must state facts which, if true, constitute a cause of action. Bank v. Loeb, 7 W. Va. 494; Home Distilling Co. v. Himmel, 74 W. Va. 756; Eplin v. Blessing, 73 W. Va. 283; Crim v. Harmon, 36 W. Va. 596.

The defect is in the affidavit, not the order, and is substantial, not merely clerical and formal. Hence it is not amendable and the motion to quash should have been sustained. Sommers v. Allen, 44 W. Va. 120; Cosner’s Adm’r. v. Smith, 36 W. Va. 788; U. S. Baking Co. v. Bachman, 38 W. Va. 84. As the only ground of equity jurisdiction is the attachment, the demand being a purely legal one, the defendant was entitled to have the suit dismissed as well as the attachment quashed. Miller v. Zeigler, 44 W. Va. 484.

For the reasons stated, the order complained of will be reversed, the attachment quashed and the suit dismissed.

Reversed, attachment quashed, and suit dismissed.

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POFFENBARGER, PRESIDENT :

This appeal is from an order overruling a motion to quash an attachment, on the ground of insufficiency of the statement of the nature of the plaintiff’s claim, in the attachment affidavit, which describes it as follows:

[143]*143“A claim and debt arising ont of contract, upon and by the terms of which said contract there is justly due” the plaintiff from the defendants, naming them, “as affiant verily believes, at least the sum of Eight Hundred and Nine Dollars.”

Obviously this statement amounts to no more than a conclusion founded upon facts known to the affiant, brjt not set out, or even indicated, in the affidavit. No fact is given from which the nature of the contract can be known, not even its subject matter. What obligation the defendants took upon themselves is not disclosed, nor is there any. charge or claim of a breach thereof. Numerous decisions*of this court declare insufficiency of a mere claim by way of conclusion. Enough facts must be stated, to show a duty from the defendant to the plaintiff and a breach thereof, as in the case of a declaration or bill. The attachment stands upon the affidavit, not the bill or declaration, and that must state facts which, if true, constitute a cause of action. Bank v. Loeb, 7 W. Va. 494; Home Distilling Co. v. Himmel, 74 W. Va. 756; Eplin v. Blessing, 73 W. Va. 283; Crim v. Harmon, 36 W. Va. 596.

The defect is in the affidavit, not the order, and is substantial, not merely clerical and formal. Hence it is not amendable and the motion to quash should have been sustained. Sommers v. Allen, 44 W. Va. 120; Cosner’s Adm’r. v. Smith, 36 W. Va. 788; U. S. Baking Co. v. Bachman, 38 W. Va. 84. As the only ground of equity jurisdiction is the attachment, the demand being a purely legal one, the defendant was entitled to have the suit dismissed as well as the attachment quashed. Miller v. Zeigler, 44 W. Va. 484.

For the reasons stated, the order complained of will be reversed, the attachment quashed and the suit dismissed.

Reversed, attachment quashed, and suit dismissed.

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87 S.E. 164, 77 W. Va. 142, 1915 W. Va. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/millar-v-whittington-wva-1915.

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