Wright v. Craig

• Decision Date: 02 March 1908
• Citation: 92 Miss. 218,45 So. 835
• Court: Mississippi Supreme Court
• Parties: CLEO WRIGHT v. WILLIAM P. CRAIG

45 So. 835

92 Miss. 218

CLEO WRIGHT v. WILLIAM P. CRAIG

Supreme Court of Mississippi

March 2, 1908

March 1908

FROM the circuit court of Sunflower county, HON. SYDNEY M. SMITH Judge.

Mrs Wright, appellant, was plaintiff in the court below; Craig appellee, was defendant there. From a judgment in defendant's favor plaintiff appealed to the supreme court.

Craig appellee, as landlord, sued out an attachment for rent against M. A. Chambers and J. F. Wright, to recover $ 350 rent for the Craig hotel building alleged to be due and in arrears. Mrs. Wright, appellant, was in possession of the hotel as its manager when the sheriff levied the writ on certain furniture, in the hotel building, valued at $ 620. Chambers and Wright, the tenants, were not served with process or notice of the proceeding in attachment, although they could easily have been found. Mrs. Wright made affidavit claiming the property levied upon, and gave bond and kept it in her possession. Subsequently, and before any further steps were taken by Craig, she made motion to quash the attachment writ and the return thereon because there had been no service of process upon either of the tenants; and filed a declaration in replevin against Craig, the landlord. To this declaration Craig filed a statutory avowry averring that he caused the officer to make the levy, that the taking was rightful, that Chambers and Wright owed him for rent as evidenced by their promissory notes, and that the property which had been levied upon belonged to them. To this Mrs. Wright, the appellant, replied traversing each averment of the avowry.

On the trial of the issue Craig offered in evidence a lease contract between himself and Chambers and Wright leasing the hotel building to them for three years and the rent notes executed by them. As a witness for Craig the sheriff of the county testified to making the levy and touching the value of the property levied upon, aggregating $ 620. Mrs. Wright sought to prove by her own testimony that the property levied upon was hers instead of that of Chambers and Wright, but upon objection of counsel for Craig this testimony was excluded. She then introduced Chambers, one of the tenants, who testified that he and Wright, although they had executed the notes, owed Craig nothing because of his violations of conditions in the lease. After all the evidence was in, the court peremptorily instructed the jury to find in favor of Craig the landlord, in the amount shown to be due on the notes given by the tenants, and directing the jury to find the value of the furniture from the evidence.

The sections of Code 1906, referred to in the opinion of the court, are as follows:

"2845 (2508). Goods sold if not replevied.--The officer making a distress or seizure shall give notice thereof, with the cause of taking, to the tenant or his representative in person if to be found, or if not found, by leaving such notice at the dwelling house or other conspicuous place on the premises charged with the rent distrained for, and shall forthwith advertise the property distrained or seized for sale as if under execution; and if the tenant or owner of the goods distrained or seized shall not, before the time appointed for the sale, replevy the same by giving bond with sufficient sureties, to be approved by such officer, payable to the plaintiff in the attachment, in double the amount claimed, conditioned for the payment of the sum demanded, with lawful interest for the same and costs at the end of three months after making such distress, the officer shall sell the goods and chattels distrained or seized at public sale to the highest bidder, for cash, and shall, out of the proceeds of the sale, pay the costs of the proceedings, and shall pay to the plaintiff the amount of his demand, with interest."

"2863 (2525). The replication.--If the avowry be for rent and supplies or either, claimed to be due and in arrears, the replication by the plaintiff shall be substantially in the following form, viz.:

"Thomas East v. William West.

Circuit Court, County.

"And the plaintiff, for replication, says he was not indebted to the defendant as stated in his said avowry; and of this the plaintiff puts himself upon the country."

"2871 (2533. Proceedings to be as in replevin by tenant.--The affidavit may be made before the officer having the property, and he shall make return of it and of the bond, if any, and the attachment papers, and summon the other party, as required in case of a replevin by the tenant; and the claimant replevying the property shall prosecute his suit against the party in whose name or right it was attached, in all respects as the tenant is required to do; and the pleadings and proceedings shall be conformed so as to present the proper issues."

Reversed.

Chapman & Everett, for appellant.

The claimant's motion to quash the affidavit in attachment should have been sustained, since the...