Riley v. James

• Decision Date: 21 October 1895
• Citation: 73 Miss. 1,18 So. 930
• Court: Mississippi Supreme Court
• Parties: A. D. RILEY v. PETER JAMES

18 So. 930

73 Miss. 1

A. D. RILEY v. PETER JAMES

Supreme Court of Mississippi

October 21, 1895

FROM the circuit court of Holmes county, HON. C. H. CAMPBELL Judge.

Judgment for defendant. Plaintiff appealed. The opinion states the case.

Judgment reversed and cause remanded.

E. F Noel, for appellant.

The town marshal of Tchula had no authority, as constable, the execute the distress warrant without the limits of the supervisor's district in which that town is located, and the purchaser at his sale thereunder acquired no title. Const. 1869, § 23 of art. 6; const. 1890, § 171; Heggie v. Stone, 70 Miss. 41.

Hooker & Wilson for appellee.

Argued orally by E. F. Noel, for the appellant, and by G. A. Wilson for the appellee.

OPINION

COOPER, C. J.

Of the many errors assigned, we notice one only, because it goes to the root of the controversy between the parties, and must finally control the litigation.

The action is one in replevin, brought by the appellant to recover the possession of two mules from the appellee. It is conceded that the mules were the property of appellant, the appellee claiming to have procured title thereto by virtue of a distress for rent sued out by him against appellee, and a sale thereunder, at which he, the appellant, became the purchaser. Unless, therefore, the sale was a valid one, the appellant should prevail in the action.

The facts, as disclosed by the record, are that the lands leased to appellant are situated on Bee lake, in district No. 4 of Holmes county. The appellee sued out his distress warrant before the mayor of Tchula, which is located in district No. 5 of said county, and the warrant was placed in the hands of one Whittington, the marshal of said town, who seized and sold the property at Bee lake, in district No. 4, not only without the corporate limits of the town of Tchula, but also beyond the supervisors' district in which it is situated.

Our constitution, section 171, provides that "a competent number of justices of the peace and constables shall be chosen in each county, in the manner provided by law, for each district, who shall hold their office for the term of four years." The constitution of 1869 provided that these officers should be elected "in each county by the qualified electors thereof, by districts." In Heggie v. Stone, 70 Miss. 39, 12 So 253, we held that it was not competent for the legislature to clothe the mayor of a town comprising a part of a district with the jurisdiction of a justice of the peace for the whole district. In Bell v. Mckinney, 63 Miss. 187, we decided that, under the power of establishing inferior courts, the mayor...