Farrand Co. v. Huston
| Decision Date | 15 November 1915 |
| Docket Number | 17045 |
| Court | Mississippi Supreme Court |
| Parties | FARRAND COMPANY v. HUSTON |
APPEAL from the circuit court of Neshoba County. HON. C. L. DOBBS Judge.
Suit by H. A. Huston against John Black and others in which the Farrand Company filed an affidavit, alleging that the property levied on belonged to it. From a judgment quashing the affidavit, the claimant, appeals.
At the September term, 1911, of the court below judgment was rendered against John Black and three others in favor of appellee, H. A. Huston, upon which an execution was issued and placed in the hands of the sheriff, who levied on several pianos in possession and as the property of John Black. An affidavit was made and filed with the sheriff by J. Q Hunter, Jr., an attorney at law, in behalf of the Farrand Piano Company, setting forth in the proper form that the pianos levied on were the property of that company and not of the defendant in execution. Bond was given by the claimant and the pianos released. At the term of the court below to which this execution was returnable a motion was made by the plaintiff in execution to quash the claimant's affidavit for the following reasons, among others:
This motion was sustained and a judgment, after verdict on a writ of inquiry, was entered against the claimant for the value of the property levied on. Afterwards, and at the same term of court, this judgment, for some reason not disclosed by the record, was set aside, and the cause continued to the next term of the court. At the succeeding term a motion was filed on behalf of the claimant for the discharge of its bond under the provisions of section 4993 of the Code, on the ground that by default of the plaintiff in execution an issue for the trial of the right of property had not been made up at the term to which the execution was returnable. This motion was by the court overruled, and thereupon evidence was taken on the motion to quash. At the close thereof the motion to quash was again sustained, and judgment, after verdict upon a writ of inquiry, was again entered against the claimant for the value of the property levied on. The claimant's affidavit was dated the 10th day of December, 1911, which was Sunday; but the uncontradicted evidence introduced in its behalf disclosed that the affidavit was in fact made on Saturday, and that the date in the affidavit was a clerical error. In order to sustain its contention that the affidavit was made without authority from the claimant, the following letter was introduced in evidence by the plaintiff in execution:
Philadelphia Miss. Jan. 11, 1912.
Lewis was the attorney for the plaintiff in execution. To this letter the claimant replied as follows:
"Per F. L. COWAN."
J. Q. Hunter, the attorney who made the affidavit for the claimant, testified that he was requested by Black, the defendant in execution, to make the affidavit and to look after the Farrand Company's interests, and that his act in so doing had since been ratified by the company. In what manner the claimant ratified the making of the affidavit does not appear, but Hunter's general statement that such is the fact was not challenged in any way.
Reversed and remanded.
J. F. N. Huddleston, for appellant.
We think a recital of the facts are amply sufficient to justify a reversal. The proceedings are entirely statutory and must be followed or the transgressor must take the consequences. There is only one thing for the plaintiff in execution to do, when the affidavit and bond are returned into court, i. e. to tender issue or move the court that an issue be made. Section 4992 is imperative; and section 4993 gives the consequences by which he must abide if he selects to try some other than the prescribed course. Code 1906, secs. 4992 & 4993.
The court should have sustained claimant's motion for discharge....
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