The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1891-07-29
Judgment by the Circuit Court.
.... STATE OF SOUTH CAROLINA, D..
COUNTY OF ABBETILLE.
In Common Pleas.
Mcinhard Brothers It Co., Plaintiffs,
npainSt

IN COMMON lleuS.
Mcinhard Brothers It Co., Plaintiffs,
against
j. r. Youngblood, Witz BREEDER Il Co., Hunt.
PrcSncll & Co., and w, ID. Mann. as Shcrill,
Defendants s.-t'omplant for Relief: ,,,
Tho defendants, WitH BREEDER n Co, Hunt.
prcsmcll 4 60. and W. u. Mann, as Sheriff, de-
mur orally iu the complaint in the above en-
titled ciinn, upon the following" gronndS;
l. because IL appears from the com pEtln'
That the Court has never acquired lurisulc'
liun OF the persons Of the defendants, " u"
lsrrdl"r II Co. aud Hunt, PrrSncll X Co., nc
curdin= to the provisions OF the Code oi FRO
cedurp.
III. Because the complaint does not slate
fncts sufficient To constitute Il cause of action
against said defendants.
IL appears that the defendants. Wiz Brct.-
Ter Il 60. and Hunt prcSncll l. Co. are non
resident creditors OF the defendant. j. 1.
Eouugbluod, II citizen of Abhevillc county,
served upon said non resident defendants
nndcr an order for publication granted by the
Clerk of this Court.
1t also appears that said nonresident de.
| PENDANTS, under separate writS OF attach'
mcntS. caused the defendant, Mann, as Sher'
| in TO levy upon all OF the property oi the de-
| frndant, j. Il. ioungblood prior to the com
mencemcnt of this action.
| IL Is urged in support OF the firSt ground ol
the demurrer that the nonresident defend,
ants, Wiz BREEDER IL Co. and Hunt, l'resnell
| Il Co., did not acquire under the levy undci
the writs of attachments, such claim or m
| tercst in property in this State, as would nu
thorZe the Clerk of Court to grant the order
| for the publication OF the summons under
Section l5G OF the Code. conclude that the
Court has acquired jurisdiction or the per
| sons OF the non. resident defendants, Wit
| Bredler Il Co. and Hunt. Prcsncll Il Co. under
Section l56 of the Code, and the first ground
| of the demurrer Is ovcrruled.
Does the complaint state incls Sutlicicht tu
constitute n cause of action against the dc
PENDANTS interposing the demurrer?
1t was stated by plaintifiS counsel at INC
| nI,x,,rn f.t,ti lnf
action was TO have the writs OF attachments
waived at the instance Of the defendants
WITT BREEDER L. Co. and Hunt, Prcsnell u Co.
and the levy by the Sheriff upon the proper
! ty of the defendant, J. r. IOungblOod, under
said writs of attachments set aside, and adj
Judged to be null and void. under the Assign
ment Act Of 1882.
The eleventh paragraph Of the complaint Is
relied upon as containing sufficient allega
| LionS to cntitle the plaintiffs (who sue on be-
half OF themselves and other creditors d
YoungbOod) TO relief under the Assignment
Act of 1882 The allegations OF said paragraph
"That the Issuing of these attachments and
the levy of all the defendants property there
under Is an attempt to give Il preference tC
the said Witz Bredler & Co. and Hunt, Pres
nell Il Co., over the other creditors Of the said
j. r. Youngblood, and the plaintiffs believe
and so charge, that the transaction was and
is colIuSive, and is a fraud upon the rights o
all other creditors, and they further aliegt
that the said proceedings are void upon ihcil
face and unless set aside they have no other
means Of protecting themselves from such i'll
justice and preference
Some of the other allegations OF the com
pluint relate to matters Of evidence and 9TH
ers are irrelevant. 1t Is alleged In the com
plant that the affidavits upon which The
writs OF attachments were issued were wnol
ly insufficient. and that the defendant
Yonngblood. declined to move 10 set asidt
sa i'd writs Of attachments, or to allow either
creditors to do so, without cost to himself
Youngblood alone could move TO set aside tho
attachments but his failure or refusal TO dO
SO. cannot have the effect 10 bring the trans
action within the provisions of the Assign
mcnt Act of 1852. There must be some posi-"
tive act upon the part OF the debtor with in
tent TO give preference to bring The transac
ton under the Act OF 1884,
The mere non-action Of the debtor Is moi
sufficient. IL Is not alleged I'm the complaint
that the defendant, Youngblo0d, procured his
property to be attached, and | conclude that
the allegations OF the eleventh paragraph o.
the complaint are too Indefinite, and that tho
complaint does not state flcts sufficient tC
constitute u cause of action under the Assign
mcnt Act of 1852.
1t is there fore ordered and adjurlgcd thai
the demurrer he sustained upon the second
ground as above stated. and that the plaIntills
complaint be dismissed with costs.
l. ID. Withcrspoon,
July 10, 1891. Presiding Judge.