Helton v. McLeod

• Decision Date: 25 May 1908
• Docket Number: 13,191
• Citation: 46 So. 534,93 Miss. 516
• Court: Mississippi Supreme Court
• Parties: JAMES W. HELTON v. DANIEL W. MCLEOD ET AL

46 So. 534

93 Miss. 516

JAMES W. HELTON v. DANIEL W. MCLEOD ET AL

No. 13,191

Supreme Court of Mississippi

May 25, 1908

FROM the circuit court of Jackson county, HON. WILLIAM H. HARDY Judge.

McLeod and another, partners, members of the firm of McLeod &amp Dantzler, appellees, were plaintiffs in the court below Helton, appellant, was defendant there. From a judgment in plaintiffs' favor defendant appealed to the supreme court.

This was an attachment suit under Code 1906, § 133 instituted by plaintiffs against defendant, before a justice of the peace, the sum demanded being $ 160.30. The original affidavit alleged that "the said Helton has removed or is about to remove himself or his property out of this state." The justice of the peace, on the trial before him, sustained the attachment and rendered a judgment in plaintiffs' favor against defendant for $ 116.95. From this judgement the defendant appealed to the circuit court. In the circuit court the plaintiff was allowed to amend the affidavit for attachment, and there were a jury trial verdict and judgment in plaintiffs' favor for $ 131.55 and costs.

In the supreme court the appellees, plaintiffs below, moved to strike from the record the stenographer's report of the testimony on the trial below, for the reason that the same was not authenticated, as provided by Code 1906, § § 4790, 4794, there being no showing that it was signed and certified by the official stenographer of the court below, and also because not signed and approved by the circuit judge. This motion was sustained, and the supreme court decided the case on the record excluding the stenographer's report.

Affirmed.

E. M. Barber, for appellant.

The first assignment of error presents the question whether or not the plaintiffs' appellees here, could so amend their affidavit as to present a separate and distinct cause of action from that made and relied on in the magistrate's court, so as to have the same extended back as the basis of the attachment suit in the magistrate's court.

The original ground relied on for the issuance of the writ of attachment was "that said Helton has property that he is about to remove out of this state with the intent to place it beyond the reach of his creditors." I fail to find this alleged ground of attachment in Code 1906, chap. 9, in reference to attachments. Now, if there was no such ground of attachment under the statute law, was not the attachment illegally sued out before the justice of the peace? And if the justice of the peace had no jurisdiction, how could the circuit court have any on appeal,

In the circuit court, on appellees' motion, the circuit court permitted the affidavit to be so amended as to read that "the said Helton has removed or is about to remove himself or his property out of this state." Proper exception was taken by appellant to the action of the court. This amended affidavit, interposed for the first time in the circuit court, made a new ground of attachment differing from that upon which the magistrate had issued the original writ.

The affidavit, being the basis of the suit in the magistrate's court, could not legally be amended in the circuit court on appeal so as to allege a new and different ground of attachment.

It may be contended by appellees that under our liberal statutes, an amendment of the affidavit, made for the first time in the circuit court on appeal from the magistrate's court, should be allowed. This however cannot be, for the reason that an affidavit in attachment is no part of the pleadings in the case; it is jurisdictional in its nature, and is the foundation of the proceeding, in attachment. 4 Cyc. 469; Page v. Ford, 2 Smed. & M. 266.

Under the terms of the amended affidavit, to-wit, "that the said Helton has removed or is about to remove himself or his property out of this state," two separate grounds of attachment are embraced. Upon which one of the two alleged grounds did the appellees rely?

It is erroneous to state several causes for attachment disjunctively. Bishop v. Finnerty, 46 Miss. 507; Montague v. Gaddis, 47 Miss. 453; Dreyfus v. Mayer, 69 Miss. 283, 12 So. 267.

Denny & Denny, for appellees.

The circuit court had ample authority to allow appellees to...