Advance Lumber Co. v. Laurel Nat. Bank

• Decision Date: 17 April 1905
• Citation: 38 So. 313,86 Miss. 419
• Court: Mississippi Supreme Court
• Parties: ADVANCE LUMBER COMPANY v. LAUREL NATIONAL BANK

38 So. 313

86 Miss. 419

ADVANCE LUMBER COMPANY v. LAUREL NATIONAL BANK

Supreme Court of Mississippi

April 17, 1905

FROM the chancery court of Jones county, HON. JAMES L. McCASKILL Chancellor.

The Laurel National Bank, the appellee, was complainant, and the lumber company, the appellant, was defendant in the court below. From a decree in favor of the complainant; the defendant appealed to the supreme court.

The Laurel National Bank filed the bill in this case in the chancery court of Jones county against the Advance Lumber Company, alleging that the defendant was indebted to complainant in the sum of $ 897.30. 'The bill further alleges that the Advance Lumber Company is a non-resident of the state, and "has property in Jones county, consisting of lumber at Sandersville, and a deed of trust on the Bostick Lumber Company, covering personalty and realty, which may be levied on, and subjected to, the payment of complainant's debt." The prayer of the bill is that a writ of attachment in chancery be issued; "that the lands and tenements and effects and sufficient property to pay said indebtedness belonging to the Advance Lumber Company, located in Jones county, said state, be attached and held to await the determination of the cause." The chancery clerk issued an attachment writ in the ordinary form, and placed it in the hands of the sheriff, who levied it on 110,000 feet of yellow pine lumber, the property of the Advance Lumber Company. No affidavit or bond was filed by complainant. The Advance Lumber Company filed a motion to quash the attachment writ and discharge the levy, assigning the following reasons "Only personal property was levied on, and no bond was filed before the issuance of the writ of attachment. The levy is illegal and void. The officer had no authority to levy on personal property without bond first being given." This motion was overruled. Defendant then filed its demurrer to the bill, which was also overruled.

Decree reversed and demurrer sustained.

Shannon & Street, for appellant.

Can an attachment be issued by the chancery court, without bond first being given, against a non-resident, absent or absconding debtor, unless such debtor has lands and tenements in this state, or against any such debtor and persons in this state unless they have in their hands effects of, or are indebted to, such non-resident, absent or absconding debtor? In other words, can an attachment issue in chancery under Code 1892, without bond, for the seizure of personal property only?

The sections of the code of 1892 bearing upon attachments and writs of sequestration in the chancery court are secs. 486 to 491 and 511 to 517, inclusive.

The chancery court certainly has no jurisdiction in attachment suits, except that given by statute, and there is nothing in the section of the code just quoted giving it jurisdiction of attachments against personal property. On the contrary, the statute limits the jurisdiction to debtors who own lands and tenements within this state; or, if there are no lands and tenements, then other persons must be joined in the action with the non-resident defendant, who have in their hands effects of, or are indebted to, such defendants.

The bill in this case not having any resident defendants joined with the non-resident defendant, as indebted to, or having effects belonging to, such non-resident defendant, it is perfectly plain that the latter part of Code 1892, § 486, does not apply; and so the only thing that can give the chancery court jurisdiction in this case is that the defendant must own lands and tenements in this state. This is not charged.

In chancery, if the process desired is to be levied upon lands and tenements or effects of the defendant in the hands of third persons, the proper writ is attachment, and no bond is required until after decree. Code 1892, § 491.

But if the process desired is to be levied upon personal property the proper writ is one of sequestration. Code 1892, § 511.

And an affidavit has to be made before the writ of sequestration shall issue. Code 1892, § 512.

And also before...