Baldwin v. Conger

17 Miss. 516

Opinion

Mr. Justice Thacher.

delivered the opinion of the court.

This was an action commenced in the circuit court of Claiborne county, by attachment by virtue of the statute of 1844.

The objections to the affidavit, bond and writ of attachment, are similar to those made and decided in the case of R. G. Wharton v. John B. Conger, ante 510, at the present term of this court.

The return of the sheriff upon the writ shows that he “levied” the writ. This can mean only a legal levy, which includes a seizure of the property of which it is the subject.

Another cause to quash the proceedings made in the circuit court, was founded upon the allegation that the attachment had been sued out to a term of the court, when a suit for the same cause of action, and pending to the same term, had been dismissed contrary to the statute, (H. & H. 623, § 54,) which forbids a plaintiff, upon dismissing his suit, to renew it to the same term of the same court.

However erroneous it might have been to have sued out the attachment, under the circumstance of the dismissal of a suit for the same cause of action at the same term, the fact does not appear upon the face of the proceedings, but is rather negatived from their showing, that the amounts in controversy were not identical in the two actions. Upon this ground, a motion to quash the proceedings could not avail. Bank of Rodney v. McCaa et al. 8 S. & M. 721.

Judgment reversed, and cause remanded.