McLin v. Worden

55 So. 358, 99 Miss. 547

Opinion

Mayes, C. J.,

delivered the opinion of the court.

If it be true that a judgment was recovered in the circuit court of Wolfe county, Kentucky, against appellee, it could not be proved or admitted in the courts of this state as evidence of the fact, until there had been a compliance with section 905 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 677). This section of the United States Revised Statutes is found in the appendix to the Code of 1906, at page 1385. ffihe judgment claimed to have been recovered in Kentucky, and offered in evidence to prove the debt, did not comply with the United States statute above cited. The judgment had the attestation of the clerk, but did not have the certificate of the judge, as is required by the United States statutes.

All other questions involved are settled by the case of Carrier v. Poulas, 87 Miss. 595, 40 South. 164. In the 'case just named it was held that under section 171, Code of 1906, a defendant was entitled to have his damage assessed for the wrongful suing out of a writ of attachment, if the question of indebtedness be decided in his favor, although the grounds upon which the attachment was sued out were not contested by him; in short, a defendant is not compelled to bring a new and independent suit on the bond. The above case does not refer to the case of Betancourt v. Maduel, 69 Miss. 839, 11 South. 111, though it seems to be in conflict with it.

The Carrier case, supra, is the later holding of this court, and since the same section of the Code has been re-enacted with the later construction of the court placed upon tlie statute, and without any change being made by the legislature, we feel that it is our duty to adhere to the case of Carrier v. Poulas. Affirmed.