Greenwood Grocery Co. v. Bennett

58 So. 482, 101 Miss. 573

• Court: Mississippi Supreme Court
• Decided: March 15, 1912
• Status: Published

Opinion

Cook, J.,

delivered the opinion of the court.

This action was begun by attachment. Printed forms for the affidavits and bonds were used.- In filling out the attachment blanks, the name of the creditor was omitted in the affidavit, and the party making the affidavit was not described as creditor, agent, or attorney, but he did sign the affidavit “E. M. Purcell, secretary and treasurer.” The bond was in due form and properly signed, except the Greenwood Grocery Company was not described as a corporation. The writ of attachment was in the language of the statute, and the declaration sets out the names of the parties to the suit, and was in proper form and complete in all details. Defendants made a motion to quash the affidavit, and writ of attachment, and assigned eighteen reasons' why this should he done. Plaintiff asked leave to amend the attachment proceedings. The motion to quash was sustained, and the plaintiff was not permitted to amend. Thereupon a jury of inquiry to assess the damages of defendants was impaneled, over the protest of plaintiff in attachment, and the jury proceeded to render a verdict for defendants, • assessing their damages at three hundred and forty dollars.

It is unnecessary to consider the numerous reasons assigned in the motion to quash the attachment; they were all predicated upon the theory that the attachment proceedings were absolutely void. If the proceedings were simply defective, the court should have permitted the plaintiff below to amend the attachment proceedings. The last clause of Sec. 136, Code of 1906, reads as follows: And in all cases where an attachment bond or affidavit may be defective in any respect, or may be lost ■or destroyed, the plaintiff shall be allowed to file a new affidavit and bond, which shall be, in all respects, as valid and binding as if given at the commencement of the suit.” See also Sec. 775, Code 1906.

It seems clear that the plaintiff should have been allowed to amend the attachment proceedings, or to have filed a new bond and affidavit. An amendment should have been allowed to all of the defects which we have not mentioned in the statement of the case.

Courts of law are organized for the purpose of trying •causes upon their merits, and only in exceptional cases should the trial court.refuse to permit amendments of pleadings or proceedings. Bishop v. Fennerty, 46 Miss. 570. Reversed and remanded.

On suggestion of error, Judge Sam Cook delivered the ■opinion of the court:

We have carefully considered the suggestion of error filed by appellee, and can find no reason why we should not adhere to our former decision.

The trial court erred in quashing the attachment writ and proceedings, and, these being the initial steps in the institution of the original suit, we did not deem it necessary to pursue the investigation further. As we nnderstand the declaration, judgment might be rendered against both defendants, or against one and not the ■other, and, if this be true, an election was not necessary until after all proof was in. Indeed, it is the better practice to await the evidence before requiring an election. If the position of the appellee is sound, a demurrer •should have been interposed.

We do not think the authorities cited in support of the suggestion of error have any application here, and the suggestion, of error is overruled.