Walker-Durr Co. v. Mitchell

• Decision Date: 13 June 1910
• Citation: 52 So. 583,97 Miss. 231
• Court: Mississippi Supreme Court
• Parties: WALKER-DURR COMPANY v. CORA MITCHELL ET AL

52 So. 583

97 Miss. 231

WALKER-DURR COMPANY v. CORA MITCHELL ET AL

Supreme Court of Mississippi

June 13, 1910

FROM the chancery court of Simpson county, HON. SAMUEL WHITMAN JR., Chancellor.

The Walker-Durr Co., appellant, was complainant in the court below; Mrs. Mitchell and others, appellees, were defendants there. From a decree in defendants' favor the complainants appealed to the supreme court. The facts as stated by ANDERSON, J., were as follows: --

"This is a bill to enjoin execution of a judgment of the justice of the peace for $ 100 and costs, by the appellants, Walker-Durr Company and others, against Mrs. Cora Mitchell, the plaintiff in the judgment, and the justice of the peace who rendered the judgment, and the sheriff who had the execution for levy the appellees. The court below rendered a decree in favor of the appellees, dissolving the injunction, and for the amount of the judgment sought to be enjoined, with interest and cost and attorney's fees. The controlling facts, about which there is no controversy, are as follows:

"Mrs Cora Mitchell rented some land to Hugh Bass for the year 1906, for which Bass agreed to pay her one thousand pounds of lint cotton. Bass subrented the land to Jack and Hosea Griffin. In the fall Jack Griffin sold two bales of cotton raised on Mrs. Mitchell's land to Walker-Durr Company in payment of a debt he owed them and for which they had a deed of trust on his crop. The Walker-Durr Company was a mercantile corporation. Mrs. Mitchell, hearing of the removal from leased premises and sale of this cotton, sued out an attachment for rent against Hugh Pass before a justice of the peace. The justice of the peace deputized one Lee, who was not an officer, to execute this writ. He levied the same on some seed cotton on the leased premises and on the two bales of cotton bought by the Walker-Durr Company; and the latter for the purpose of retaining the cotton in their hands and releasing the seed cotton from the levy of the writ, signed a replevin bond as surety for the tenant, Hugh Bass, and accordingly the attachment was released. This bond was returned into court, and at the time fixed for trial the tenant, Hugh Bass, appeared and consented to judgment, and the justice of the peace thereupon rendered judgment against Bass, the tenant, and Walker-Durr Company, the surety on his replevin bond, for the amount of the rent, $ 100, and costs. From this judgment an appeal was taken to the circuit court and by the circuit court, dismissed, and a writ of procedendo awarded.

"Walker-Durr Company allege in their bill that they owed Mrs. Cora Mitchell nothing, and the judgment was void because the writ of attachment was levied by Lee, who was not a constable or other officer authorized to levy such writ, having been appointed specially so to do without authority of law, and because judgment was rendered against W. M....