Bedford, French & Goodwin Co. v. W. T. Adams Machine Co.
| Decision Date | 26 October 1908 |
| Citation | 47 So. 429,93 Miss. 537 |
| Parties | BEDFORD, FRENCH & GOODWIN COMPANY v. W. T. ADAMS MACHINE COMPANY |
| Court | Mississippi Supreme Court |
October 1908
FROM the circuit court of Quitman county, HON. SAMUEL C. COOK Judge.
The Bedford, French & Goodwin Co., appellant, was plaintiff in the court below; one Harris was defendant in execution there and the Adams Machine Co., appellee, was claimant of the property levied upon. From a judgment in claimant's favor on a claimant's issue, the plaintiff appealed to the supreme court.
One Harris purchased conditionally from appellee, the property machinery, involved in this litigation, and gave his note for same, dated January 20, 1903, due May 20, 1903; said note evidenced that the title to the property was reserved in the vendor and would not pass to Harris until he paid for the property. The property was delivered by appellee to Harris in the early spring of 1903. In February, 1905, appellant sued Harris and in March, 1905, recovered a judgment against him and the judgment was duly enrolled. An execution was issued on the judgment in April, 1906, and levied on the property in controversy in September, 1906, and same was claimed by appellee. The execution was returnable to the September term 1906 of the circuit court and the plaintiff on the first day of that term tendered an issue to the claimant, but the claimant did not join in the issue tendered until the second term of the court thereafter--the September term 1907--and not until after the plaintiff had moved for judgment because of claimant's failure to join issue at the term to which the execution was returnable. The court below overruled plaintiff's motion, and allowed claimant to join issue at the second term thereafter.
Judgment reversed ad case remanded.
J. W. Mack, for appellant.
The court below erred in overruling the motion of appellant to dismiss the claim of appellee because of appellee's failure to join issue at the first term. Sears v Gunter, 39 Miss. 338.
Code 1906, § 4993, provides that should claimant fail to join issue when tendered at first term then it shall be the duty of the court at the instance of the plaintiff, to order a writ of inquiry to ascertain the value of the property, and if the claim was made for delay, etc. In the case just cited it was held by the court, under a statute like the present one, that where plaintiff failed to tender issue in time for the cause to be tried at the first term, the levy should be dismised notwithstanding the delay was caused by the failure of the sheriff to return the claimant's affidavit and bond, and not because of any negligence on the part of the plaintiff.
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