Terry v. Curd & Sinton Manufacturing Co

• Decision Date: 22 April 1889
• Citation: 66 Miss. 394,6 So. 229
• Parties: R. C. TERRY ET AL. v. CURD & SINTON MANUFACTURING CO
• Court: Mississippi Supreme Court

6 So. 229

66 Miss. 394

R. C. TERRY ET AL. v. CURD & SINTON MANUFACTURING CO

Supreme Court of Mississippi

April 22, 1889

April 1889

APPEAL from the circuit court of Hinds county, first district, HON J. B. CHRISMAN, Judge.

This suit was begun by attachment against the appellant, R. C Terry, alone, returnable to the January term, 1889, of the circuit court of Hinds county, first district, to convene January 7, 1889. The writ of attachment was duly served upon R. C. Terry, and his lands and goods levied upon. The affidavit for attachment recited that the debt of said defendant was not due. The appellant, Mrs. Emma Terry, was not mentioned in the affidavit or writ. On the 2d day of January, 1889, plaintiff filed its declaration in the cause against R. C. Terry and Mrs. Emma Terry, and a summons in the usual form was served on Mrs. Terry the same day. The declaration alleged that the debt sued on, and upon which attachment had been issued against R. C. Terry, was a joint liability of said R. C. Terry and Mrs. Emma Terry. It further her appeared from the declaration and exhibits that the debt was not due when the declaration was filed, but would mature at given intervals, beginning January 4, and ending March 4 1889.

Both defendants failed to appear, and judgment by default was entered on January 10, 1889, against R. C. Terry, sustaining the attachment, and on the same day judgment for the amount named in the declaration was entered by default against R. C Terry and Mrs. Emma Terry. This appeal is prosecuted by both of the said defendants, who have joined in giving a supersedeas bond.

Judgment affirmed.

Nugent & McWillie, for appellants.

The declaration was both against the defendant in attachment and Mrs. Terry, and was filed in and constituted part of the attachment proceedings. It was the only declaration in the suit, and no summons issued on it save for Mrs. Terry. It did not inaugurate an independent suit in assumpsit, but was part of the attachment suit, and, in a measure, dependent upon the result of that proceeding. Had Mrs. Terry been called on to plead to the attachment she might have traversed successfully the affidavit, and never been called upon to defend as to the debt. At all events, she could not be required to plead to the debt until judgment had been rendered against her on the attachment issue. Code 1880, § 2431. She has had no opportunity of tendering issue as to the existence of the grounds of attachment.

In addition to the reason that the suit was one in personam, there is an insuperable objection to the maintenance of the writ against Mrs. Terry. None of the debt was due when the declaration was filed, and a considerable part of it did not become due until long after the rendition of the judgment and the adjournment of the court. This appears in the declaration itself.

Mrs. Terry has lost no right to object to the judgment because she suffered default. The declaration shows a total absence of a cause of action at the time against Mrs. Terry.

The supreme court will, in such cases, make no distinction between judgments by default and those upon issue joined. Hallock v. Jaudin, 34 Cal. 167. By § 1405, code 1880, the supreme court shall hear and determine all manner of pleas, plaints, motions, causes, controversies civil and criminal, which may be brought before it, and which are cognizable in such court according to the law and constitution of the state. There is no restriction in the constitution upon the power of the court to hear any appeal. A judgment by default only admits the facts alleged in the declaration where they show a cause of action. This declaration shows no cause of action against Mrs. Terry.

But the judgment is invalid as to both defendants for another reason. the remedy by attachment is a harsh and summary one, and cannot be extended beyond the terms of the statute. Attachments for debts not due are only authorized in a special class of cases, and in these due proof of the justice of the debt is made a prerequisite to the rendition of judgment by the court. This statute precludes the rendering of judgment by default as much in an attachment for debts not due as a similar statute does in proceedings for divorce. As the judgment here was by default for debt not due and without proof, it must be reversed. Hopkins v. Grissom, 4 Cush. 143; Rankin v. Dulaney, 43 Miss. 197; Code 1880, § 2459.

There is no authority for this proceeding, so far as Mrs. Terry is concerned. Our statute authorizes an attachment as ancillary to a suit in personam, but not a suit in personam as ancillary to an attachment. The affidavit did not aver a joint indebtedness. In this the case is different from Smith v. Cromer, ante 157. In that case the defendants, who were not embraced by name in the attachment, appeared and plead to the declaration; and the defendant in attachment was liable at all events and the plaintiff offered to prove that the other defendants were his partners, doing business with him under his individual name. Here there was no waiver by appearance, no averment of joint liability or partnership, and no proof of the justice of the claim. The judgment is certainly erroneous as to Mrs. Terry, and should be reversed as to Terry, because there was no proof of the justice of the debt.

C. M. Williamson, for appellee.

Where several persons are liable for the same debt, the creditor may proceed by attachment against any one or more of them in relation to whom any ground of attachment exists without so proceeding against the others. Drake on Attach., 5th ed § 37, a; Chittenden v. Hobbs, 9 Iowa 417; Austin v. Burgett, 10 Iowa 302; 6 Iowa 54. Under these authorities it was not proper or necessary to join Mrs. Terry in the attachment proceedings. As there were no grounds for attachment against her, plaintiff could allege none; but this did not deprive plaintiff of the right to attach the joint debtor, who...