Barlow v. Serio
| Citation | 129 Miss. 432,91 So. 573 |
| Decision Date | 15 May 1922 |
| Docket Number | 22530 |
| Court | Mississippi Supreme Court |
| Parties | BARLOW ET AL. v. SERIO |
1. LANDLORD AND TENANT. Nature of "attachment for rent."
An attachment for rent under section 2336 et seq. Hemingway's Code (section 2838 et seq., Code of 1906), is not a judicial proceeding. The writ is simply a mandate directed to the sheriff or any constable, by which this officer is required to distrain the goods and chattels of the defendant.
2. LANDLORD AND TENANT. Where property attached for rent is replevied, the proceeding becomes a suit for the first time.
When the property levied on is replevied under the statute, the proceeding becomes for the first time a suit.
3. APPEAL AND ERROR. Papers in attachment for rent not proper part of transcript, on appeal from judgment in action to replevy property levied on.
Unless the papers in attachment are made either exhibits to the pleadings, or introduced in evidence, they do not constitute a proper part of the transcript on appeal to this court, and will be stricken from the record on the proper motion.
APPEAL from circuit court of Bolivar county, HON. W. A. ALCORN Judge.
Action by San Serio against W. H. Barlow and others. From default judgment for plaintiff, defendants appeal. On motion to strike out part of record. Motion sustained.
Motion sustained.
Shands Elmore & Causey, for appellant.
Clayton D. Potter, for appellee.
The appellants, proceeding under section 2838 et seq., Code of 1906 (section 2336 et seq., Hemingway's Code), sued out an attachment for rent against the appellee, Sam Serio, under which process was issued to an officer, and certain personal property was by this officer levied on and taken possession of. Sam Serio then replevied the property, and in due course, in the circuit court of Bolivar county, filed his declaration in replevin, to which the defendant pleaded an avowry, in accordance with the statute.
A default judgment was rendered against the defendants, from which judgment this appeal is prosecuted.
The appellants (the Barlows) have made a motion in this court to strike from the record their affidavit upon which the attachment was issued, the writ of attachment of the officer, and the return upon said writ, upon the ground that these papers, relating to the attachment, formed no proper part of the record in this case. These attachment papers above enumerated were not made exhibits to the pleadings, neither were they introduced in evidence.
In the case of Pate v. Shannon, 69 Miss. 372, 13 So. 729, it was held that:
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Irby v. Corey, 8662.
...of distraint which is the equivalent of a common-law distress. It is an administrative and not a judicial proceeding. Barlow v. Serio, 129 Miss. 432, 91 So. 573; Pate v. Shannon, 69 Miss. 372, 13 So. 729; Smith v. Jones, 65 Miss. 276, 3 So. There is language to the effect that a landlord ha......
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Norton v. Norton
...sanctions. Documents which are made exhibits to motions are properly before the court for its consideration. See Barlow v. Serio, 129 Miss. 432, 433, 91 So. 573, 574 (1922). Additionally, the legal analysis contained in the letter was, for the most part, also included in the motion to dismi......
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Crum v. Upchurch, 40571
...1291 and 1644, Code of 1942, and the following decisions of this Court: Roberts v. Lyon Co., 124 Miss. 345, 86 So. 851; Barlow v. Serio, 129 Miss. 432, 91 So. 573; Bridgeman v. Bridgeman, 192 Miss. 800, 6 So.2d 608; Hudson v. Belzoni Equipment Co., 211 Miss. 178, 51 So.2d But in this same n......