This exhaustion of the personal estate need not be proven and in fact need not actually exist, but the statute requires a return "no property found" as a means of making a jurisdictional showing to that effect. Hall v. McGregor, 65 W. Va. 74, 64 S.E. 736. In the case presently under consideration, the record shows that Mr. Jarvis' judgment was rendered on May 11, 1982. It also shows that he filed his creditor's complaint on February 16, 1983, less than one year after obtaining his judgment.

It can be impeached therefor, not collaterally, but only by a direct proceeding, to set it aside by original bill or cross bill or answer." In Hall v. McGregor, 65 W. Va. 74, 64 S.E. 736, Point 4, syllabus, it is held: "A judgment cannot be assailed in equity upon pleadings which fail to show affirmatively some reason, founded in fraud, surprise, accident, mistake, or adventitious circumstance beyond the control of the party complaining, why the defense was not made at law." To the same effect are Wyatt v. Wyatt, 79 W. Va. 708, 92 S.E. 117; Plant v. Humphries, 66 W. Va. 88, 66 S.E. 94, 26 L.R.A. (N.S.) 558; First National Bank v. Distilling Co., 41 W. Va. 530, 23 S.E. 792, 56 Am. St. Rep. 878; and Justis v. Realty Co., 109 Va. 366, 63 S.E. 1084.

Rule VI, Section (d), Rules of Practice and Procedure for Trial Courts, Promulgated April 10, 1936, 116 W. Va. lx. If the original cause of action is preserved, the allegations of a bill of complaint in a suit in equity may be changed by amendment to add new matter and to cure imperfections and mistakes in the statement of a plaintiff's case. See Hall v. McGregor, 65 W. Va. 74, 64 S.E. 736; Cox v. National Coal and Oil Investment Company, 61 W. Va. 291, 56 S.E. 494. A court has discretion in permitting an amendment to a pleading and it is not error to permit an amendment, not contradictory of the original pleading, which sets up matter proper to the determination of the issues involved. Dickinson v. Rand, 102 W. Va. 574, 136 S.E. 42. The circuit court, in the exercise of a sound judicial discretion, should have permitted the amended and supplemental bill of complaint to be filed. Halterman v. Burgess, 128 W. Va. 23, 35 S.E.2d 436; Bird v. Stout, 40 W. Va. 43, 20 S.E. 852; Kuhn v. Brownfield, 34 W. Va. 252, 12 S.E. 519, 11 L.R.A. 700; Lamb v. Cecil, 28 W. Va. 653.

Gill v. More, 200. Ala. 511, 76 So. 453; Wittmeir v. Leonard, 219 Ala. 314, 122 So. 330; Home B. M. Co. v. Alabama U.S. Co., 225 Ala. 322, 142 So. 827; Sapp v. Warner, 105 Fla. 245, 141 So. 124, 143 So. 648, 144 So. 481; Nolen v. Henry, 190 Ala. 540, 67 So. 500, Ann.Cas. 1917B, 792; Figh v. Taber, 203 Ala. 253, 82 So. 495; Silvey Co. v. Cook, 191 Ala. 228, 68 So. 37. When a paper is filed pursuant to statute, it becomes a record and affords constructive notice as of the date of filing. Phillips v. Beene's Adm'r, supra; McGregor v. Hall, 3 Stew. P. 397; Howard v. Deens, 143 Ala. 423, 39 So. 346; Chadwick v. Russell, 117 Ala. 290, 23 So. 524; Haynes Bro. v. Gray Co., 148 Ala. 663, 41 So. 615; Woods v. Rose, 135 Ala. 297, 33 So. 41. David A. Grayson, Cooper Cooper, and Taylor, Richardson Sparkman, all of Huntsville, for appellees.

This exhaustion of the personal estate need not be proven and in fact need not actually exist, but the statute requires a return "no property found" as a means of making a jurisdictional showing to that effect. Hall v. McGregor, 65 W. Va. 74, 64 S.E. 736. Hence, if the return of executions addressed to counties other than the county of the debtor's residence are of no value on the question of exhausting the debtor's personal estate for the purpose of equity jurisdiction to entertain a judgment lien creditor's suit within two years from the date of the judgment, they surely can not be said to constitute an election to proceed by exhausting the debtor's personal estate before proceeding in equity to sell his land. The reasons set forth above, coupled with the fact that the execution required by the statute has already been defined by this court, and because of the general rule of construction that terms having one meaning in a statute are to be given that same meaning throughout, unless to do so creates repugnancy or otherwise distorts the plain purpose of the act, impel us to hold that the execution contemplated throughout the statute and in the proviso is an execution addressed to the county of the judgment debtor's residence.

. (Emphasis ours.) Macile Miller was an obligor in her individual capacity; i. e., she contracted to pay, and was liable for, the entire amount of the loan, and therefore falls within the protection of the statute. McDonald v. Cabiness, 100 Tex. 615, 102 S.W. 721 (Tex. 1907); Hall v. McGregor, 431 S.W.2d 369 (Tex.Civ.App., Houston (1st Dist.) 1968, no writ). The Bank has cited no authority in point for its contention that Macile Miller's claim is extinguished, or that one-half of the entire claim is extinguished, by reason of the death of one of the joint and several obligors. Macile Miller has caused the principal on the note to be paid, as she was obliged to do, and retains the right in her individual capacity to collect any penalties awarded by reason of usurious interest having been charged her for obtaining the loan.

Fraud and collusion in making the return, for the purpose of basing an action thereon against the surety, may alter the rule; but nothing short of such fraud and collusion will alter it. (See Hall v. McGregor, 65 W. Va. 74 [64 S.E. 736]; Clements v. Waters, 90 Ky. 96 [13 S.W. 431], and Stoors v. Kelsey, 2 Paige (N.Y.), 418.) No cause of fraud or collusion appears here.