Carlisle v. Gunn

• Decision Date: 02 February 1891
• Court: Mississippi Supreme Court
• Parties: HENRY CARLISLE v. W. R. GUNN

8 So. 743

68 Miss. 243

HENRY CARLISLE v. W. R. GUNN

Supreme Court of Mississippi

February 2, 1891

FROM the chancery court of Monroe county, R. C. BECKETT, ESQ. Special Chancellor by consent.

In March, 1888, Gattman & Co. failed, and numerous attachments were sued out against them, among others attachments in favor of appellant Carlisle and appellee Gunn. The latter, through his agent, procured an attachment in Chickasaw county which was levied on the land in controversy, situated in that county. He also prosecuted an attachment on the same debt in Monroe county; and the writ was levied on property there. Subsequently appellant, having obtained an attachment in Monroe county, caused a branch writ to issue to Chickasaw county, and had the same levied on the land previously levied upon by appellee, and which, meantime, had been levied on by others.

Before a disposition of the attachment suits against Gattman & Co. all the attaching creditors united in a creditors' bill in the chancery court of Monroe county, seeking to set aside the assignment which Gattman & Co. had made of all their assets. This suit was finally compromised, and a consent decree was entered. Pending the compromise, a controversy having arisen between the creditors who had attached the above-mentioned land, as to the priority of their respective liens, this question was, by express provision in the decree reserved for future adjudication. The clause of the decree containing this provision will be found quoted in the opinion.

Pursuant to the consent decree, the appellee, Gunn, proceeded to take judgment in his attachment suit in Monroe county. Defendants moved to quash the writ of attachment in the suit in Chickasaw county, alleging that there was no affidavit, and that what purported to be an affidavit, was never, in fact sworn to by Gunn or his agent. Evidence was taken on the hearing of this motion, and the facts in that connection, as deduced by the court from the record, are set out in the opinion. The circuit court refused to disturb the levy, but required plaintiff to file an amended affidavit, which was done, and the cause proceeded to judgment.

The question of the priorities between the creditors having levies upon the land in Chickasaw county having been referred to the chancery court of Monroe county, as provided in the decree, this controversy has arisen between Carlisle and Gunn, the former making the same objection previously made by him to the attachment writ of Gunn, viz., that there had been no valid affidavit; and that the amendment made subsequent to the levy by Carlisle could not validate the writ and levy previously made. It is not deemed necessary to state the other points presented by counsel.

The decree of the court was in favor of Gunn, giving to his lien priority over that of Carlisle, and from this decree the latter appeals.

Reversed and remanded.

Sykes & Richardson, for appellant.

The rights of attaching creditors as between themselves must depend on strict law, and if one by want of regularity or diligence loses his priority, no equitable principle can afford him relief. Drake on Attach. § 262.

There can be no valid attachment without an affidavit being made. Ib. § 84. No amendment can supply the entire omission of an affidavit. An amendment presupposes the existence of an affidavit. 2 Douglass, 498; 8 Humph. 12; 1 Wade on Attach. §§ 73, 237.

The testimony fails to show the making of an affidavit. It is essential that the oath be administered. It takes two to make an affidavit, the officer and the affiant. The cases relied on by appellee are not those where the oath was not administered but where the affidavit was made but the affiant or officer failed to affix his name. This case lacks the requisites, which in Dunlap v. Clay, 65 Miss. 454, the court said were necessary to constitute an oath, viz., the consensus of the minds of officer and affiant, and a sufficiently formal administration of the oath.

The amendment could not affect the lien of Carlisle. While amendments may be made as between debtor and creditor, they cannot affect adversely other creditors. In a case like this, the lien of senior attacher is postponed to that of the junior. 2 Duvall, 288; 15 Wis. 61; 1 Wade on Attach. §§ 72, 73, 287; Drake on Attach. §§ 113, 262.

Miller & Baskin and W. T. Houston, for appellee.

The amendment of the affidavit was proper and the new affidavit was as valid in all respects as if given at the commencement of the suit. Code 1880, § 2464. The cases cited by appellant are not applicable, especially under such a comprehensive statute as ours. In 2 Douglass (Mich.), 187, there was no affidavit before an officer qualified to administer an oath, nor was there any statute of Michigan authorizing amendment in such a case. In 8 Humph. 12, there was no attempt to file any sort of Affidavit.

The consequences of a defect in the affidavit must depend on the character of the defect and altogether upon the statute of the state. 1 Wade on Attach. §§ 73, 237.

It is clear that under our statute the affidavit was not void, but only voidable. It contains the name of the parties, the amount of the debt, and the grounds of attachment. See Booth v. Rees, 26 Ill. 45. A subsequent attaching creditor is not entitled to the same latitude of objection as the defendant in attachment. Ward v. Howard, 12 Ohio St. 161.

In support of the sufficiency of the affidavit and the effect of the amendment, see 30 Iowa 452; 12 Robinson (La.), 132; 79 Ill. 233; 26 Ib. 46; 3 Scam. (Ill.) 361; Dunlap v. Clay, 65 Miss. 454; Redus v. Wofford, 4 S. & M. 579; Brooks v. Snead, 50 Miss. 416; Green v. Boon, 57 Ib. 617; 1 Wade on Attach. 73; Drake on Attach. § 91.

The justice of the peace cannot impeach his official act. Stone v. Montgomery, 35 Miss. 83; Word v. Sykes, 61 Ib. 649.

Clifton & Eckford, on the same side, filed a lengthy brief and written argument, reviewing the authorities above noted in the brief of associate counsel, and making the following additional points and citations on the questions passed on in the opinion. The facts clearly amounted to the making of an affidavit, and if not, it was subject to amendment. Boisseau v. Kahn, 62 Miss. 757.

In the authorities relied on by appellant we submit that the word defective is taken in the sense of void, that is that the defects in an affidavit, which would let in intervening rights acquired before amendment, must be such as go to the jurisdiction, and render the proceeding void. Waples on Attach. 105; 15 Wis. 68; Wade on Attach. § 72; 2 Douglass (Mich.), 93; Drake on Attach. 143 (n. 1), 262 (n. 3), 273 (n. 2); 85 N.Y. 243.

A subsequent attaching creditor must show either that the affidavit is void or wholly fails to embody some jurisdictional fact, before the amendment can displace the prior lien. Drake on Attach. 184; Waples on Attach. 104; Pennoyer v. Neff, 95 U.S. 721; Wade on Attach. 413; Code 1880, § 2464.

The waiver made by Gattman & Co. in the consent decree must be held to be for the benefit of all attaching creditors. Carlisle was a party to the decree and profited by the agreement and waiver, and since, Gattman & Co. cannot object to the validity of the attachment, Carlisle cannot.

T. J. Buchanan, on the same side.

Argued orally by Chas. Richardson, of counsel for appellant, and T. J. Buchanan, Jr., of counsel for appellee.

OPINION

WOODS, C. J.

The position of the appellant in this case differs widely from that of the appellant in Gattman v. Gunn, determined at the October term, 1889, of this court. In that case, Gattman, by his own action, had put himself in position not to be heard in an attempt to defeat Gunn in his suit to reduce his claim to judgment, and that was the question which our opinion in that case settled.

In the case at bar, Carlisle is not estopped by any act of his to deny the validity of the proceedings in the attachment suit of Gunn v. Gattman, in the Chickasaw county case. The consent decree...