Greenwood Grocery Co. v. Bennett

• Citation: 58 So. 482,101 Miss. 573
• Decision Date: 20 May 1912
• Docket Number: 15634
• Parties: GREENWOOD GROCERY CO. v. W. B. & T. R. BENNETT
• Court: Mississippi Supreme Court

58 So. 482

101 Miss. 573

GREENWOOD GROCERY CO. v. W. B. & T. R. BENNETT

No. 15634

Supreme Court of Mississippi

May 20, 1912

APPEAL from the circuit court of Leflore county, HON. P. C. CHAPMAN Special Judge.

Suit by the Greenwood Grocery Company against W. B. & T. R. Bennett. From a judgment quashing the attachment plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

M. B Grace, for appellant.

The motion to quash the writs and bond should have been overruled, and the motion to allow plaintiff to amend same or, substitute a new one in its place should have been sustained. Motion is the incorrect way to raise these questions; they should have been raised by exceptions to the affidavit and bond.

We submit, as a matter of right, justice and equity, the affidavit was subject to amendment under Sec. 775, Code 1906 and the many decisions of this and other courts. The policy of the law is, any and all pleading should be amended so as to bring the merits of the controversy between the parties squarely to trial on the facts. This court has held that the clerk should be allowed to sign, that is fix his signature to the affidavit; also, put his seal on same, when the motion to dismiss or quash is made and presented to the court. 62 Miss. 757. This is especially true, taking into consideration, the affidavit of M. B. Grace, attorney for the plaintiff, to the effect, that at the time the affidavit was drawn by M. B. Grace, and the affiant, E. M. Purcell, was in the act of catching a train for Chicago, and the affidavit was prepared very hurriedly, the omission was a mere inadvertence, and the attending circumstances were such that such an error might be made. See affidavit of M. B. Grace. It was prejudicial error for the court to sustain the motion to quash and overrule the motion for leave to amend the affidavit and bond.

The appellate court will not, as a rule, disturb the rulings of the trial court, where the matter is within the mere discretion of the court, but, when the discretion of the court is abused the appellate court will right that wrong and reverse the ruling of the lower court. We submit there was no matter of discretion in this case, but the court took the bits in its own mouth, and ruled, apparently without regard for the decisions of this court, or any other court. This court has held an affidavit in attachment is not void because not signed by the affiant. Redus v. Wofford, 4 Smed. & M. 579.

Whether a paper, in form an affidavit, is really one, is not determinable by what either of the parties considered in reference to it, but by the inquiry, whether anything was done which could properly be construed as taking or administering an oath. Carlisle v. Gunn, 68 Miss. 243, 8 So. 743. This court has held in effect, the affidavit may be amended or a new one filed in its stead. Griffin v. Mills, 40 Miss. 611; Green v. Boon, 57 Miss. 617; Bowles v. Dean, 84 Miss. 376.

Pollard & Hamner, for appellants.

In considering the various defects claimed in the affidavit and bond, the whole record must be inspected. One portion may be permitted to help out the other, the bond may help out the affidavit, the affidavit may help out the bond, and the declaration may help out the writ. Bishop v. Fennerty, 46 Miss. 573. Both clearly show that the Greenwood Grocery Company was plaintiff and E. M. Purcell was secretary and treasurer. The affidavit was signed by E. M. Purcell, secretary and treasurer.

We take it that the court will reverse this cause for the very pronounced errors of the lower court in refusing to permit plaintiff to amend the attachment affidavit and bond as it had a perfect right to do under Code section 136. These amendments should be liberally allowed in cases of this nature and had they been permitted in this case the absurd conclusion reached would have been avoided and the general rule that the law shall be construed in the most liberal manner for the detection of fraud, the act of justice and benefit of creditors would have been established. Certainly the testimony bears unmistakable earmarks of the intention on the part of debtors to defraud the plaintiff and defeat it of its just claim. Had the amendments been allowed, as they should have been, the lien of the writ would not have been affected in any way. Code 1906, Sec. 136; Griffings v. Mills, 40 Miss. 611. The defendants would not have been prejudiced, the plaintiff would have been properly in court and defendant should have been required to file their plea in abatement in due form, or granted time in which to plead under a proper order of the court.

We take it that the court will reverse this case for the unquestionable errors of the lower court in refusing to allow the amendments by plaintiff.

Chapman & Williams, for appellee.

The point argued by associate counsel for appellant is that the court erred in quashing the affidavit and writ in this case, and in refusing to allow plaintiff to amend its affidavit and bond. The affidavit was absolutely void, and so Secs. 136 and 775 of the Code cannot rescue it. You cannot amend a void affidavit, because you have nothing to amend. The affidavit being void the writ was void, because issued without any authority whatever. An attachment proceeding is a special statutory proceeding, in derogation of the common law, and the statute must be strictly construed.

"Attachment being an extraordinary and summary remedy in derogation of the common law, the courts will usually, in the absence of any statutory provision to the contrary, construe the statutes strictly in favor of those against whom the proceeding is employed, both as to the subject matter of the attachment and the method of enforcing the remedy, and will exact of plaintiff a strict compliance with all the statutory requirements." 4 Cyc. 400.

Since we have no statute in force at this time requiring that attachment laws shall be liberally construed in favor of attaching creditors, the authority cited in the last paragraph is the law of this case. When the cases cited by counsel for appellant were decided, Art. 44, page 382, Code 1857, was in force, which was as follows: "This act shall be construed in all courts of judicature, in the most liberal manner, for the detection of fraud, and the advancement of justice, and the benefit of creditors." This provision is not in the Code of 1871, reappears as Sec. 2476, Code 1880, and is omitted in the Codes of 1892 and 1906.

The affidavit is fatally defective in not stating that it was made by the creditor, or its agent or attorney, as required by Sec. 133, Code 1906.

The case of Dudley v. Harvey, 59 Miss. 34, was an attachment for rent by the landlord, but all that is there said applies with equal force to the facts of the case at bar. Judge Campbell said in that case: "The landlord must not only have a right to an attachment for rent, but he must proceed according to law in the employment of the summary and extraordinary remedy provided for the enforcement of his right. It is not enough that the conditions exist which entitle him to the attachment, but he must do what the law exacts as the foundation for its issuance. The mistake by which the wrong affidavit was made, and the attachment was therefore illegally issued in this case, is to be regretted, but it is chargeable to a failure to observe the provisions of the law conferring the right in certain states of cases to an attachment for rent before it becomes due. The statute is plain, and the form of affidavit to be made in such case is prescribed (Sec. 1359, Code 1880), so that it would seem that the mistake could hardly occur in commencing the procedure."

So, here, the Code of 1906, sets out specifically the form of affidavit to be used, the form of the bond, and the form of the writ, and it is inconceivable how this proceeding could have been commenced on a void and illegal bond and affidavit, if appellant had used even the slightest diligence in following the plain forms laid down in the statute. The man who employs a highly dangerous machine is held to the highest degree of care in using it so as not to injure others; and the man who uses the extraordinary, harsh, summary and drastic remedy of attachment is held, under the law, to the very highest degree of care to commence and carry out his proceeding according to law.

In Pate v. Shannon, 69 Miss. 372, Judge Cooper, speaking for this court, said: "It is no more within the power of the court to permit an amendment to the affidavit upon which the validity of the writ depends than it would be to direct an amendment to a defective deed or power of attorney, relied on by a party plaintiff or defendant as a link in his chain of title. The making of the affidavit, as required by the statute, is a condition precedent to the issuance of the warrant; and if the condition is not performed, the warrant is illegal."

The process by attachment is an extraordinary one, and outside the general and natural courses of the law. It is a harsh remedy at best, and being purely statutory, the courts all agree that the processes marked out by the statute must be strictly pursued." Drake v. Railroad Co., 69 Mich. 168, 13 Am. St. Rep. 382.

"The issuance of the writ is authorized by the statute upon certain conditions. These conditions must be strictly complied with in order to give the court jurisdiction to issue the writ. . . . The question of jurisdiction must always remain open to the debtor, and, if the officer had no jurisdiction, the whole proceeding was coram non judice." Murphy v. Montandon, 2 Idaho, 1048, 35 Am. St. Rep. 279.

"The remedy by attachment exists in this country by virtue of statutory enactment alone, and is in derogation of the common law. ...