Shelton v. Kindred
| Decision Date | 25 June 1973 |
| Docket Number | No. 47106,47106 |
| Citation | 279 So.2d 642 |
| Parties | Aaron SHELTON v. S. J. KINDRED. |
| Court | Mississippi Supreme Court |
Dudley, H. Carter, Columbus, for appellant.
Burgin, Gholson, Hicks & Nichols, Columbus, for appellee.
The action out of which the present appeal arises was begun by appellee, S. J. Kindred, by affidavit for attachment before a justice of the peace under the provisions of Mississippi Code 1942 Annotated section 2675 (1956), charging that appellant, Aaron Shelton, was indebted to him in the sum of $2,958.44 and 'has removed or is about to remove himself, or his property out of this state.' The writ of attachment issued, returnable before the Circuit Court of Lowndes County, and was levied upon a truck belonging to Shelton. The truck was returned to Shelton upon his execution of bond in the penalty of $5,916.88.
Thereafter, Kindred filed his declaration in the circuit court, this time claiming that Shelton was indebted to him in the sum of $4,100.10. Kindred was permitted to amend his declaration on the day of the trial by attaching, as an exhibit, a sworn itemized statement of the account. While the record reflects the filing of this exhibit, it nowhere appears in the record. A so-called counter-affidavit was filed by Shelton which does appear in the record but, in the complete absence of Kindred's sworn account, its cryptic statements are wholly unintelligible.
The grounds alleged as a basis for the attachment were traversed and the case went to trial. On the issue of attachment the uncontradicted testimony shows: (1) Shelton's domicile was in Lowndes County, where he lived, and had lived for many years, with his wife and four children. Those of the children who were not too young were attending the schools in Columbus; (2) Shelton owned his home in Columbus which he occupied with his family; (3) At all relevant times Shelton was amenable to the ordinary processes of the Mississippi courts, either by service upon him personally, or upon his wife, or by posting at his dwelling. In fact, the process in this case was served upon Shelton personally in Lowndes County; (4) Shelton was not attempting to sell his home or to dispose of any other of his property.
The only countervailing testimony offered by Kindred to support his charge that Shelton 'has removed or is about to remove himself, or his property out of this state' was that (1) Shelton was, and had been for many years, a professional interstate truck driver who, in the ordinary course of his employment, drove freight trucks all over the country, and (2) Shelton recently had taken a job with U.S. Van Lines, an interstate trucking concern with headquarters in Atlanta, Georgia, but with a representative in Columbus, Mississippi, and that it was contemplated that the attached vehicle would be used by him in interstate hauling for his employers.
Kindred was asked:
Q. In fact you had no information other than the fact that he (Shelton) was going to be hauling out of Atlanta, Georgia, did you? That he was going to be outside of this state? That was the only information you had? Isn't that truth?
Kindred answered: 'That was enough.'
At the conclusion of the case, peremptory instructions were requested by each party upon the...
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Corrothers v. State
...which do not appear in the record and must confine itself to what actually does appear in the record.’ ”) (citing Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973) ). In his opinion, Presiding Justice Randolph relies upon and analyzes evidence that, while cited in briefs, was not made part......
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Corrothers v. State
...which do not appear in the record and must confine itself to what actually does appear in the record.'") (citing Shelton v. Kindred, 279 So. 2d 642, 644 (Miss.1973)). In his opinion, Presiding Justice Randolph relies upon and analyzes evidence that, while cited in briefs, was not made part ......
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Wilkerson v. Goss
...the trial court were correct, and such presumption will prevail, unless the actual record supports the contrary view.” Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973). Moreover, the defendants have the duty to ensure “that the record contain[s] all data essential to an understanding and ......