Smith v. Jones

• Decision Date: 05 March 1888
• Citation: 65 Miss. 276,3 So. 740
• Court: Mississippi Supreme Court
• Parties: DANIEL H. SMITH v. JOHN A. JONES, TRUSTEE

3 So. 740

65 Miss. 276

DANIEL H. SMITH v. JOHN A. JONES, TRUSTEE

Supreme Court of Mississippi

March 5, 1888

APPEAL from the Circuit Court of Claiborne County, HON. J. B CHRISMAN, Judge.

In September, 1886, D. H. Smith sued out an attachment for rent against J. C. Smith, alleging that $ 425 was due and in arrears, before the mayor of the town of Port Gibson, and ex officio justice of the peace of Claiborne County; and caused the same to be handed to the sheriff, and by him levied on certain property found on the demised premises. The premises were in Claiborne County, but not within the corporate limits of the town of Port Gibson.

John A Jones, trustee, sued out a writ of replevin, and filed his declaration thereon in the usual form, in which he claimed the property and denied the right of Smith thereto. The sheriff returned the writ of attachment to the Circuit Court.

The defendant in replevin, D. H. Smith, pleaded "that he is not guilty of taking or detaining the said goods and chattels of the said plaintiff in his said declaration mentioned, in manner and form" as therein alleged, and gave notice that he would claim and show damages for the wrongful suing out of the writ of replevin.

On motion of the plaintiff in replevin, John A. Jones, trustee the affidavit and writ in attachment were quashed and the suit dismissed, and judgment rendered for the plaintiff in replevin. The defendant, Smith, appealed.

E. S Drake, for the appellant.

Section 1302, Code of 1880, limits the jurisdiction of justices of the peace, for the purpose of issuing attachments for rent only to the county where the demised premises are located. The demised premises in this case are located in Claiborne County, and the mayor was an ex officio justice of the peace of Claiborne County. To limit Section 1302 by Section 2191 is illogical and without the reason, and in direct violation of the reason, underlying both sections. The two are harmonious and both founded on reason and common sense, if construed according to the clear intent of the language of each. But when you undertake to say that the words "any justice of the peace of the county" means any justice of the peace of the supervisor's district, then the reason of both is destroyed, and they become mere legislative dicta.

J. K. McNeeley, for the appellee.

The office of mayor of an incorporated town is a creature of the legislature, and the duties, powers and jurisdiction are defined by the act of incorporation. Certain boundary lines fix the territorial jurisdiction of the mayor, and the usual act conferring upon him the general jurisdiction of justices of the peace of the county defines and limits his jurisdiction in civil suits and criminal matters.

The mayor is a justice of the peace with a circumscribed jurisdiction limited to the boundary lines as set forth by the act of incorporation. His court is an inferior court as provided for under the constitution, Act 6, § 24. He has the powers of a justice of the peace of the county within this limited territorial jurisdiction.

Persons and property outside of the limits of such territorial jurisdiction cannot be subject, nor subjected to his authority, and any attempt to exercise such authority beyond the territorial limit is unlawful, and the act void. So a writ issued by him to take effect on person or property not within his jurisdiction is of no force, is illegal, and will be quashed on motion before the proper court.

Since his authority is necessarily limited to his bailiwick, he has no power to issue an attachment for rent where the premises leased, and the tenant, both are beyond his jurisdiction.

The affidavit is the first step in the proceedings, and under the decision in Cassedy v. Mayer, might properly have been made before the mayor of Port Gibson; but the writ, which is based on the affidavit, should have been issued by some justice of the county who would have jurisdiction to try the issue between the landlord and tenant if the sum sued for was less than 150 dollars.

The writ is the main process, and must be issued by a justice having territorial jurisdiction; such writ being returnable, on replevin by tenant or third party, before the justice who issued, under Section 1312, Code 1880, and not before the officer who took the affidavit.

This affidavit might have been made before any of the officers enumerated in Section 2294, Code 1880. 64 Miss. 356.

The writ is in the nature of an execution, and is not returnable to any court; the affidavit being in the nature of a judgment.

The writ is a precept directed to the proper officer, directing him to take the property and sell it, etc. This is the end of the proceedings, unless the tenant or claimant replevin. It is then returned to the justice who issued it. The amount claimed in the affidavit, or the value of the property...