McSwain v. Cephus

69 So. 178, 109 Miss. 368

Opinion

Cook, J.,

delivered the opinion of the court.

In the body of the affidavit for attachment for rent and supplies, it appears that the-, administratrix of the deceased landlord was sworn and made oath. At the bottom of the affidavit, and just above the jurat of the justice of the peace, is written, ‘1 Mrs. Eddie I. McSwain, by C. A. McSwain, Attorney in Fact.” In the circuit court the defendant made a motion to quash the attachment writ and abate levy for the following reasons, viz.: (1) Because there is no affidavit, as required by-law, in such proceeding, (a) An affidavit is necessary as the basis of the action, and the court acquired no jurisdiction of the person nor property by the issuance of said process without an affidavit. (2) The justice court having no jurisdiction, this court has none. (3) Because the amount sued upon is beyond the jurisdiction of the justice court. This motion was sustained by the court, whereupon plaintiff then made a motion for leave to amend the affidavit by*showing that the same was sworn to by C. A. McSwain, attorney. This motion was overruled, and, from the order overruling the same, this appeal is prosecuted.

The last ground of the motion to quash the writ is not pressed here, presumably for the reason that the facts do not support it. So there is hut one question presented to us for decision, which is: Did the trial court err in overruling'the motion for leave to amend the affidavit?

Section 2859 of the Code of 1906 provides: “If the attachment proceedings he quashed they may he amended.” This provision of the statute confers a right which the court denied without any apparent reason.

Reversed and remanded.