McKinney v. Adams

Citation50 So. 474,95 Miss. 832
Decision Date18 October 1909
Docket Number13,861
CourtUnited States State Supreme Court of Mississippi
PartiesWILLIAM C. H. MCKINNEY ET AL v. ANDREW J. ADAMS

FROM the chancery court of Sharkey county, HON. JAMES STOWERS HICKS, Chancellor.

McKinney and others, appellants, were complainants in the court below Adams, appellee, was defendant there. The facts are stated in the opinion of the court.

Decree reversed, demurrer overruled and cause remanded.

Catchings & Catchings, for appellants.

We will first consider the effect upon the judgment rendered in the Adams case by the failure to make the affidavit required by Code 1892, § 143. That section requires that before publication can be made in cases of attachment against persons residing out of the state, the creditor, his agent or attorney, shall file with the clerk his affidavit if the affidavit for the attachment does not contain such statement showing the postoffice of the defendant or that he has made diligent inquiry to ascertain it, without success; and if the postoffice shall be stated the clerk is required to send by mail to the defendant at his postoffice a copy of the notice and he is required to make it appear to the court that he has done so, before judgment shall be rendered on publication of notice.

The bill alleges that the statute was not complied with in this particular, and that allegation of the bill is supported by the transcript of the proceedings in the Adams attachment suit which is filed with it as an exhibit. The failure to comply with the statute in this case makes the judgment rendered in the Adams attachment suit utterly null and void. This direct question was finally considered by this court in the case of Drysdale v. Biloxi Canning Co., 67 Miss 534. In that case the two attachments by the same plaintiff were against a nonresident who was not personally served, and there was no affidavit made by plaintiff setting forth the defendant's postoffice address, nor any affidavit stating an inability to ascertain such address. Nevertheless judgments by default were rendered in the two cases and the lands of defendant sold by execution and bought by the plaintiff. The defendant in these attachment suits thereupon filed his bill in chancery praying that the deeds made under these judgments be cancelled as clouds upon his title. The chancery court dismissed the bill and an appeal was taken to this court. This court said:

"In the affidavit for attachment writ the plaintiff below had stated under oath that Drysdale, the defendant, was a nonresident, but neither in that affidavit nor elsewhere in the record does it appear that any showing was made as to his postoffice address in the state of his residence. The proviso to section 2437 (Code 1880) makes it imperative upon the attaching creditor to 'file with the proper officer his affidavit if the affidavit for the attachment does not contain such statement, showing the postoffice of the defendant or that he has made diligent inquiry to ascertain it without success;' and section 2472 (Code 1880) of the Code makes the provision just quoted applicable to suits in attachment before justices of the peace.

"The flagrant disregard of these plain statutory requirements designed to give a nonresident defendant notice of the pendency of an attachment suit against him must be held to vitiate and nullify all subsequent proceedings in the case. Without any further adjudications on this point (and there are several in our reports), it seems incredible almost that any sane suitor should begin proceedings under our attachment laws and hope to win in a legal contest in despite of his gross neglect of the simplest and plainest provisions of the statute on the subject of attachments. From the record as it appears here the appellant was entitled to have the relief prayed for in his bill."

This was clearly an adjudication that the failure to make the affidavit required rendered a judgment taken without it null and void, and it was also an adjudication that it was not merely an error which could be corrected only by appeal, but that the defendant in such proceedings when such a judgment was rendered might maintain his bill as a separate and independent proceeding to cancel deeds of conveyance made in pursuance of executions under such a judgment. This is no collateral attack, therefore, as claimed by the third ground of the demurrer. But it is a direct proceeding instituted for the purpose of having the judgment and the sale under it vacated and annulled. The appellants by virtue of the deed of conveyance to them under their judgment in their attachment proceedings, this judgment in the Adams case being null and void, stand as the grantees of Pfeifer. They are grantees in invitim it is true, but they are nevertheless grantees. Under this decision of this court Pfeifer himself might have filed such a bill, and so these plaintiffs being his grantees can file such a bill.

This is a sufficient answer to the fourth and fifth grounds of demurrer. Foster v. Simmons, 40 Miss. 585; Ingersol v. Ingersol, 42 Miss. 585; Moore v. Summerfield, 80 Miss. 323; Biggs v. Ingersol, 28 So. 825.

It must be quite clear to the court that the bill was not defective for want of parties.

The attachment sued out at the instance of Mrs. S. A. Adams was void and the levy of it created no lien and the judgment rendered in pursuance of it is void and the sale made thereunder was void for another reason which is perfectly patent. Code 1892, § 134, gives the form of the writ of attachment which provides that the writ shall recite the affidavit. In other words it requires that the affidavit shall be made a part of the writ and incorporated in it. The whole proceeding by attachment being statutory the requirements of the statute must be strictly complied with.

Code 1892, § 134, after prescribing the form of the attachment writ, declares that "an attachment shall not be quashed or abated for want of form if the substantial matters expressed in the foregoing precedent be contained therein." We submit that the writ in this case does not contain "the substantial matters expressed in the foregoing precedent" for the reason that it wholly omits one of the grounds of the attachment. Even, however, if the court might have allowed the writ to be amended by inserting this amended ground, upon the objection being made to it by the defendant in attachment, yet the court could not allow an amendment of the writ which would cut off the intermediate rights acquired by third persons. The junior attaching creditor could not be deprived of his rights by the allowance of an amendment which would make valid a prior writ of attachment which without such amendment was invalid. That an attachment cannot be permitted to cut off the intermediate rights acquired by third persons has been many times decided. Putnam v. Hall, 3 Pick. 445; Bingham v. Este, 2 Pick. 420; Willis v. Croaker, 1 Pick. 204; Grennault v. Farmers Bank, 2 Dougl. (Mich.) 498; Garvin v. Legery, 61 N.H. 153; Dahill v. Laker, 1 Handy (Ohio) 574; Whitney v. Burnette, 15 Wis. 61.

The judgment in the Adams case we think is void for this additional reason. The affidavit is to the effect that Pfeifer was indebted to Mrs. Adams in the sum of $ 450, and the writ makes the same recital, and the bond given is based upon an indebtedness of that amount. This affidavit was made on December 28, 1897, and of course related to the indebtedness of Pfeifer at that time. The writ bears date of January 3, 1898, and the levy on the land was made on that date, and the levy on the wagon made on that date. The declaration in the Adams case was filed on July 26, 1898, and alleges that Pfeifer was indebted to Mrs. Adams on February 7, 1898, in the sum of $ 583.73. It will be seen that the declaration departs very widely from the affidavit. The amount alleged in the declaration to be due is very much larger than the amount claimed in the affidavit to be due, and the indebtedness described in the declaration was alleged to be the indebtedness as it appeared on February 3, 1898, while the indebtedness described in the affidavit is said to have been an indebtedness existing on January 3, 1898. This is such a departure from the affidavit as amounts in law to an abandonment by Mrs. Adams of her attachment.

In the case of Ligon v. Bishop, 43 Miss. 532, this court said: "The affidavit, writ and declaration should correspond." This case was quoted with approval in Hambrick v. Wilkins, 65 Miss. 22, in which the court said: "We assent to the proposition advanced by appellant that a plaintiff may not attach for one cause of action and having sustained his writ declare for another."

The case in 43 Mississippi, was cited in support of this position. In the case of Tunnison v. Field, 21 Ill. 108, the court said: "In a proceeding by attachment the declaration must be limited to the cause of action specified in the affidavit upon which the proceeding is based."

The case of Moore et al. v. Carley et al., 16 S.W. 787, decided in 1890, by the court of appeals of Texas, is exactly in point. In that case an attachment had been sued out for $ 508.82. The declaration filed by the plaintiffs in attachment was based upon an account for merchandise sold and delivered, claiming a balance of $ 488.44. A motion was made to quash the attachment proceedings because of the variance between the amount sued for and the amount for which the attachment issued. This motion was sustained and in the court of appeals is was assigned for error that the trial court erred in sustaining the motion. The court said:

"Plaintiffs in error assign the quashing of the attachment proceeding as error. We think the proceeding was properly quashed upon the ground that there is a material variance between the...

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