Campbell v. Triplett

• Decision Date: 26 October 1896
• Citation: Campbell v. Triplett, 74 Miss. 365, 20 So. 844 (Miss. 1896)
• Court: Mississippi Supreme Court
• Parties: C. N. D. CAMPBELL v. N. D. TRIPLETT

20 So. 844

74 Miss. 365

C. N. D. CAMPBELL v. N. D. TRIPLETT

Supreme Court of Mississippi

October 26, 1896

October 1896

FROM the circuit court of Winston county HON. A. G. MAYERS, Judge.

The original writ of attachment herein, issued in 1891, was returned by the sheriff of Winston county "No property found. Defendant not found in my county." A similar return was made on an alias writ issued to Attala county; and an alias Writ issued to Leflore county was returned "No property found, " but the defendant, Campbell, was summoned in the last mentioned county, which is and then was his place of residence. At a subsequent term of the circuit court of Winston county, in January, 1893, a judgment by default for the indebtedness was entered against the defendant; and afterwards, in January, 1896, the defendant by his petition, setting forth the above facts, applied to the court to set aside and vacate the judgment for want of jurisdiction. The plaintiff, Triplett, demurred to the petition, and, his demurrer having been sustained, this appeal was prosecuted.

Judgment reversed and cause dismissed.

Calhoon & Green, for the appellant.

1. The jurisdiction of actions commenced by attachment attaches only upon a levy on property or service of garnishment. Either the defendant himself or his property or debts must "be found" in the county of trial to warrant any valid judgment, and property or debts are essential. Barnett v Ring, 55 Miss. 97; code 1892, § 133; Crizer v. Gorren, 41 Miss. 564; Smith v. Mulhorn, 57 Ib., 591; Baum v. Burns, 66 Ib., 127. Defendant was under no obligation to appear and plead until jurisdiction had attached by levy on property or service of garnishment.

2. Code 1892, § 650, has no relevancy to cases by attachment. See cases supra, and Jefferies v. Harvie, 38 Miss. 97; Roy v. Heard, 38 Ib., 544.

Coleman & Somerville, on the same side.

1. There was no levy upon property or service of garnishment, and, in consequence, the suit failed, and should have been dismissed for want of jurisdiction. Code 1892, § 133; Baum v. Burns, 66 Miss. 127.

2. As the defendant was never before the circuit court prior to judgment, there was no reason why he should avail of § 650, code 1892, providing for a change of venue to the county of his residence.

Jones & Hughston, for the appellee.

A suit in attachment is both a proceeding in rein and in personatam. Indeed, it is two suits, and the one is independent of the other to the extent, at least, that there may be a recovery of the debt although there was no ground of attachment. Code 1892, §§ 172, 4. The defendant should be taken to have waived his right to remove the suit to the county of his residence under § 650, code 1892. Christian v. O'Neal, 46 Miss. 669; Cain v. Simpson, 53 Ib., 521. The case of Baum v. Burns, 66 Miss. 127, is distinguishable from the present controversy by the fact that in that case there was a plea in abatement to give the jurisdiction and localize the action, while here there was merely a judgment on the merits without action on the grounds of attachment. The petition fails to show that the defendant resided in Leflore county when the action was commenced, as contradistinguished from the date of service of the writ upon him.

OPINION

COOPER, C. J.

None of the writs of attachment were...