McCloud ex rel. Carly v. McCullers

84 Miss. 20

• Court: Mississippi Supreme Court
• Decided: March 15, 1904
• Status: Published

Opinions

Calhoon. J.,

delivered the opinion of the majority of the court.

An affidavit for an attachment for- debt, on the ground that McCullers had removed or was about to remove his property out of the- state, and that he had converted or was about to convert his property into money or evidences of debt, with intent to place- it beyond the reach of bis creditors, was made before a justice of the peace, who had his office in Clarksdale, in the second judicial district of Coahoma county. This was accompanied by a suggestion of the names of garnishees. The writ, pursuant to this affidavit, was duly served in Clarksdale on all the three named garnishees, one of whom, living in that second, district, answered, denying any debt to McCullers, and his answer was not disputed. The other garnishees, also duly served in Clarksdale, in the second district, were residents of the first dis-' triet; but each answered, acknowledging that he owed McCullers, in a sum specified, and there was no contravention of the answer of either’, and neither asked any change of venue,to the district of his residence. The justice of the peace gave judgment by default against McCullers, who had been duly’ served with process in Washington county, where he lived, and he gave bond for appeal, and the justice of the peace sent the record up’ to the circuit court of the second district of Coahoma county. This 'appeal bond did not show to which circuit court district of Coahoma county the appeal was taken, but the circuit court allowed McCullers to amend it by showing in it that it was to the ■ first district, and then sustained his motion to “transfer this cause” to the first district on the ground that the garnishees were all along residents of that ■ district] This motion .was <siistained more than a year after the appeal papers were filed, and after issue joined on. traverse of .the affidavit, and after'depósir; tions taken and other proceedings had, and in the circuit court, of the first district plaintiff had judgment that his attachment was rightfully sued out, but McCullers won on the debt issue. ■

There can be and is no controversy that the justice of the peace had jurisdiction to try the case, and that the circuit coxirt for the second district had it on the appeal, unless it was de^> feated by the fact that the garnishees who were, duly served .as garnishees in the second district were in truth residents of the. first district, as shown by agreement to be the fact. Baum v. Burns, 66 Miss., 124 (5 So. Rep., 697): We know of no law.giving the right to a defendant in attachment for debt to object to the venue because the garnishees might, do so. on their own’ acr’, count. Here they do not object to the venue, and there is no. contest of their answers admitting debt to defendant. They, themselves could not have the venue changed unless contest of tbeir answer was made. Code 1892, § 2147; Christian v. O’Neal, 46 Miss., 669, applied this principle to defendants not objecting who were served with process. We think it was error to transfer the cause from the second to the first district.

Reversed and remanded.