Foote v. Hall Commission Co.

Mississippi Supreme Court

Foote v. Hall Commission Co.

84 Miss. 445

DecidedMarch 15, 1904

StatusPublished

This text of 84 Miss. 445 (Foote v. Hall Commission Co.) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Foote v. Hall Commission Co., 84 Miss. 445 (Mich. 1904).

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Opinion

Whitfield, C.J.,

delivered the opinion of the court.

The attachment law now in force is substantially the same as that under Act 1878, p. 193, ch. 72, and Bates v. Crow, 57 Miss., 678, furnishes the true doctrine for the solution of this case. The court said there: “In any point of view, therefore, it was erroneous to dismiss the entire case. The utmost that the court could have done was to dismiss the attachment proceeding and even this wo-uld have been improper if the plaintiff had asked for the issuance of an alias writ of attachment to be properly issued and returned, as was held in Barnett v. Ring, 55 Miss., 97. This may yet be done on the return of the case to-the court below.” Now, in the case before us the appellant asked for this very thing — the issuance of .an alias writ of attachment; but his request was denied. This was error. The [448]*448court should have issued the alias writ of attachment; and, since the attachment branch of the suit is thus kept properly alive, it was, of course, error to dismiss, as the court below did, the entire suit. It may be objected that no personal service was had upon the defendant, but, since the attachment branch of the proceeding remains to be perfected, the court below should direct the issuance of an alias summons, as well as an alias attachment, so that the défendant may be personally served. There is no merit in any of the other positions taken by the appellee.

Reversed and remanded.

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Whitfield, C.J.,

delivered the opinion of the court.

The attachment law now in force is substantially the same as that under Act 1878, p. 193, ch. 72, and Bates v. Crow, 57 Miss., 678, furnishes the true doctrine for the solution of this case. The court said there: “In any point of view, therefore, it was erroneous to dismiss the entire case. The utmost that the court could have done was to dismiss the attachment proceeding and even this wo-uld have been improper if the plaintiff had asked for the issuance of an alias writ of attachment to be properly issued and returned, as was held in Barnett v. Ring, 55 Miss., 97. This may yet be done on the return of the case to-the court below.” Now, in the case before us the appellant asked for this very thing — the issuance of .an alias writ of attachment; but his request was denied. This was error. The [448]*448court should have issued the alias writ of attachment; and, since the attachment branch of the suit is thus kept properly alive, it was, of course, error to dismiss, as the court below did, the entire suit. It may be objected that no personal service was had upon the defendant, but, since the attachment branch of the proceeding remains to be perfected, the court below should direct the issuance of an alias summons, as well as an alias attachment, so that the défendant may be personally served. There is no merit in any of the other positions taken by the appellee.

Reversed and remanded.

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84 Miss. 445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foote-v-hall-commission-co-miss-1904.

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