Kehlor Flour Mills Co. v. Reeves Grocery Co

• Decision Date: 22 January 1917
• Citation: 113 Miss. 30,73 So. 866
• Court: Mississippi Supreme Court
• Parties: KEHLOR FLOUR MILLS CO. v. REEVES GROCERY CO

73 So. 866

113 Miss. 30

KEHLOR FLOUR MILLS CO. v. REEVES GROCERY CO

Supreme Court of Mississippi

January 22, 1917

October 1916

Division B

APPEAL from the circuit court of Lee county, HON. CLAUDE CLAYTON Judge.

Attachment by the Reeves Grocery Company against the Kehlor Flour Mills Company, wherein the Lee County Bank was a garnishee. From a judgment for plaintiff, defendant appeals.

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

Affirmed.

J. E Rankin, for appellant.

Appellant's motion to quash the attachment and give judgment for the defendant should have been sustained, because this is an action ex delicto as the declaration shows one for fraud and deceit, sounding wholly in tort, and therefore one to which the remedy of attachment does not extend. J. B. Fellows & Co. v. T. C. Brown, 38 Miss. 541.

"It is now insisted that the cause of action as set forth in the amended affidavit and declaration, is not one for which attachment will lie, and that the attachment will not lie, and that the attachment should have been quashed and the suit dismissed.

"By the terms of the statute, the remedy by attachment is confined to actions or demands, founded on any indebtedness, or for the recovery of damages for the breach of any contract, express or implied, and the actions founded on any penal statute," Rev. Code, 372, art. 1. (Which is also section 129, Code 1906). Affidavit is required by article q of "the amount of the debt or demand." From these provisions it appears to be plain that, except for the recovery of penalties under statutes, the remedy was intended to apply to matters ex contractu; and there appears to be nothing in the statute, as there is nothing in the reason upon which the remedy is founded to warrant its application to actions ex delicto.

"In this case, the amended affidavit shows no such 'indebtedness' as the statute contemplates.

(6 Corpus Juris, 79.)

"We think, therefore, that the action was not maintainable upon this amended affidavit and declaration, and that the motion to quash should have been sustained." (6. Corpus Juris, 79.)

Our statute, section 129, Code of 1906, does not extend the remedy by attachment to actions in tort, and as this statute is in derogation of the common law, it must be strictly construed, and cannot be so extended by construction or implication. Elliott v. Jackson, 3 Wis. 649, 653.

This motion should have been sustained on the ground that the declaration did not state a cause of action. It did not "contain sufficient matter of substance for the court to proceed upon the merits of the cause," as required by section 729 of the Code of 1906. The declaration in this cause did not state a cause of action according to the statute above quoted, and should therefore have been stricken from the files and the case dismissed.

Neither was it cured by our statute of jeofails. As was said by Chief Justice SHARKEY in Wells v. Woodley, 5 Howard 484: "However broad our statute of jeofails may be, it certainly does not cure everything. If there be no such cause of action whatever, stated in the declaration, a verdict does not cure such a defect. There must be some obligation or duty stated which might be a good cause of action."

In Haynes v. Ezell, 25 Miss. 242, the plaintiff obtained a judgment by default on a declaration that did not state a cause of action against the defendant in favor of the plaintiff, and the supreme court reversed it. Mr. Justice YERGER in delivering the opinion of the court said: "Although the statute of jeofails is very broad, we cannot extend it to a case where the declaration on its face shows that the right of action is not in the party suing. "

And in Gale v. Lancaster, 44 Miss. 413, it is said that: "They (the statute of jeofails) are not so broad, however, as that a verdict will cure an utter omission to state in pleading a cause of action." See, also, 31 Cyc. page 728 C.

W. A. Blair, for appellee.

That the appellee, the Reeves Grocery Company, adopted the right course and in the right court in which to bring this action, we call the court's attention to the case of: Chas. G. Miller v. American National Bank, 76 Miss. 84, and Mahaffey Co. v. Russell & Butler, 100 Miss. 122, which were suits by attachment, commencing in the circuit court of Adams and Lauderdale counties; likewise this was a suit commenced in the circuit court of Lee county.

As to our rights to subject the money in bank for damages, the supreme court of Mississippi has decided a number of times, and is shown by the two cases cited below, and also later by cases cited above, see: Exchange National Bank of Little Rock v. Searles Bros., 81 Miss. 169; Searls Bros. v. Smith Grain Company, et al., 80 Miss 688.

As to any discrepancy or any irregularity in any pleadings that may be in this cause, we call the court's attention to Rule Number 11, of the Revised Rules of the supreme court of Mississippi, adopted October 7,...