Drysdale v. Biloxi Canning Co.

• Decision Date: 26 May 1890
• Citation: 7 So. 541,67 Miss. 534
• Court: Mississippi Supreme Court
• Parties: WILLIAM DRYSDALE v. BILOXI CANNING CO

7 So. 541

67 Miss. 534

WILLIAM DRYSDALE v. BILOXI CANNING CO

Supreme Court of Mississippi

May 26, 1890

FROM the chancery court of Harrison county, HON. SYLVANUS EVANS Chancellor.

The bill in this case was filed by the appellant, Drysdale, to cancel as clouds upon his title certain deeds held by the appellee under attachment suits by which the land of appellant was condemned and sold, being bought in by the appellee. These attachment suits are set out in the opinion of the court. As stated in the opinion, there was no return of service of process as to the defendant in attachment [appellant], nor was any affidavit filed, showing his post-office address or diligent inquiry to ascertain it, as required by the statute. But there was an affidavit in each case showing the posting of notices as required, and the mailing of a copy to the defendant at Selma, Alabama. In the bill the complainant alleges that he is "a resident citizen of the town of Selma, in the state of Alabama." He does not state whether he received this notice or not, but claims that he did not have proper constructive notice.

As to the manner in which the attachments were levied and the character of the land, the allegation of the bill is as follows: "Your complainant avers and charges the fact to be true that Caleb Burton, constable, to whom both writs of attachment were handed for execution, wholly failed and neglected to go to the house or land of said defendant, or to the house of the person or persons in whose possession the two pieces of land were, and then and there declare that the attached the same at the suit of the plaintiff in the writ named," etc.

Section 2424, code 1880, among other things, provides as follows "Every writ of attachment shall be executed in the following manner, that is to say, in case of a levy on real estate the officer shall go to the house or land of the defendant or to the person or house of the person in whose possession the same may be, and then and there shall declare that he attaches the same at the suit of the plaintiff in the writ named. But in the event the land is wild, uncultivated or unoccupied, a return upon the writ by the proper officer that he has attached the land, giving a description thereof by numbers, metes and bounds, or otherwise, shall be a sufficient levy without going upon the land." The prayer of the bill was, "that the said writs of attachment, the judgments, executions, and the two deeds held by the defendant be declared null and void, and that the same be cancelled" and for general relief.

The defendant filed an answer, which, upon motion, was stricken out as being filed out of time, and afterwards a decree pro confesso was entered against the defendant. But on final hearing the court dismissed the bill. A further statement of the case is contained in the opinion of the court.

Reversed.

R. Seal, for appellant.

1. As the aggregate of the two bills of exchange exceeded $ 150 the circuit court had jurisdiction, under § 14, art. vi., of the constitution. The attaching creditor could not by splitting up the amount give the justice court jurisdiction. Walker [Miss.] R. 298; 51 Miss. 101; 59 Ib. 124. Section 23, art. vi., of the constitution, limits the jurisdiction of justices of the peace to cases in which the principal of the amount due does not exceed $ 150.

2. The attachment writs were not properly levied. Code 1880, § 2424; 49 Miss. 549.

3. The defendant was not served with process. Code 1880, §§ 2472, 2473.

Pro confesso was taken against the defendant, and appellant was entitled to a decree.

Calhoon & Green, on the same side.

1. The justice court had no jurisdiction, the aggregate of the debts being more than $ 150. Code 1880, § 2415. The circuit court had jurisdiction, in one suit. It is not the policy of the law to permit a party to be harassed by a multitude of law suits.

2. The officer did not follow the statute, and the levy was a nullity. Code 1880, § 2424; Crizer v. Gorren, 41 Miss. 563; Tucker v. Byars, 46 Ib. 549; Sherman v. Bank, 66 Ib. 648. The statute must be strictly followed.

3. The publication for defendant was a nullity. He was not served, and there was no affidavit showing his post-office address, or that it could not be ascertained upon diligent inquiry. Code, §§ 2423, 2437, 2472; Foster v. Simmons, 40 Miss. 585; Ingersoll v. Ingersoll, 42 Id. 155.

OPINION

WOODS, C. J.

Appellee sued out two attachments against appellant on the same day before a justice of the peace of Harrison county, alleging, in one case, an indebtedness of appellant evidenced by an accepted bill of exchange, of January 6, 1888, for $ 147.55, and in the other case, an indebtedness of appellant evidenced by another bill of exchange, of December 27, 1887, for $ 147.50--both on the ground of non-residence of the defendant. There was judgment by default in each case at the return term for the amount claimed. There was no return by the officer executing these writs showing whether the defendant therein had or had not been found. Indeed, the officer made no return whatever as to execution of process upon the defendant. There was no affidavit made by the plaintiff below setting forth defendant's post-office address, beyond the limits of this state, nor any affidavit stating an inability to ascertain such address. The levy of both writs, as shown by the officer's return, was a sufficient levy upon wild or unoccupied real estate, but was insufficient as a levy upon cultivated or occupied realty. A judgment was rendered, as has been stated, in both cases in the justice's court against Drysdale, the defendant below. Executions were issued upon these judgments, and the lands sold under them and the same purchased by the canning company, the plaintiff in these proceedings, and deeds were made accordingly by the officer selling under the executions.

The...