Schlicht v. Callicott

• Decision Date: 30 January 1899
• Court: Mississippi Supreme Court
• Parties: JOHN SCHLICHT v. WILLIAM C. CALLICOTT

24 So. 869

76 Miss. 487

JOHN SCHLICHT v. WILLIAM C. CALLICOTT

Supreme Court of Mississippi

January 30, 1899

November 1898

FROM the circuit court of Monroe county, HON. EUGENE O. SYKES Judge.

Callicott the appellee and tenant, was the plaintiff in the court below; Schlicht, the appellant and landlord, was defendant there. The action was an issue made under the statute, code 1892, § 2528, hereinafter quoted, as to debt due after property seized under an attachment for supplies furnished a tenant by his landlord. The statute authorizing such an attachment or distress is as follows:

"2501. Attachment for rent and supplies; who entitled to and for what.--An attachment or distress may be sued out by the lessor of lands, his executors, administrators, or assigns. It may be had for rent of the leased premises due and in arrear, or to become due, as the case may be, and for advances made by the landlord or his administrator or executor for supplies for the tenant and others for whom the tenant may have contracted and for his business carried on upon the leased premises."

The statute under which the issue was made is in these words:

"2528 (1316). Sale of goods stopped without bond.--If the tenant shall make affidavit, before the officer holding his property under an attachment for rent or supplies alleged to be due or to have been advanced, that he does not owe the amount claimed, such officer shall not sell the property, unless it be liable to perish or greatly depreciate, or be expensive to keep, in which case he shall sell it and hold the proceeds to the end of the suit; and he shall return the attachment with the affidavit and a statement of his proceedings to the proper court, and shall summon the party who sued out the attachment to appear there; and further proceedings shall be had as in case the tenant had replevied the goods by giving bond."

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

Judgment reversed and cause remanded.

Bristow & Sykes, for appellant.

In Pate v. Shannon, 69 Miss. 37, Judge Cooper says truly that the making of the affidavit, as required by the statute is a condition precedent to the issuance of the warrant, which is just what the statute provides in so many words. The filing of the bill of particulars is more for use at the trial of the matter in court than as a preliminary to the issuance of the distress warrant.

Would it be contended that the whole proceeding would be void, and the constable a trespasser, where the proper complaint is made on oath, and the proper bond given and approved, and the writ issued in due form, simply because the landlord did not file an itemized account of the supplies until the day after the complaint was made? Neither the letter nor the spirit of the law would tolerate any such thing. In this case the regular statutory complaint, on oath, was made, the bond with security duly executed and approved, the warrant or writ duly issued; a few days later, before any sale of the property attached, a regular bill of particulars was filed with the complaint, and this, we submit, is all the law requires.

On the question of jurisdiction, had we succeeded in the cause, a judgment would have been rendered in our favor against the appellant for the seventy-five dollars, supply indebtedness, and condemning the property attached to the satisfaction of that judgment. The "amount in controversy, " therefore, on the issue made by appellee, was and is seventy-five dollars, as plainly shown by the record.

Calhoon & Green, for appellee.

Can a landlord, who also claims for supplies, under code 1892, § 2502, obtain a valid distress warrant without filing with his affidavit an "itemized bill of particulars thereof, " in order to seize for the supplies? We say no. It is jurisdictional, and such a bill of particulars cannot be filed after the seizure.

In Pate v. Shannon, 69 Miss. 372, this court held that an affidavit for rent was not amendable because jurisdictional. The court said it was no more amendable than a deed relied on. It says, "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 thing demanded in the case at bar is "an account of supplies, " and no bill of particulars was filed. The statute is imperious and must be complied with or the writ is a nullity. The remedy is extraordinary and must be strictly pursued. Ita lex scripta est. If any bill of particulars had been actually filed it might be amendable, perhaps, but surely one cannot be filed after service. The tenant must be precisely informed of what is required of him before his goods are taken from him.

This court...