Meek v. Fox

42 Miss. 513

• Court: Mississippi Supreme Court
• Decided: April 15, 1869
• Status: Published

Opinion

Peyton, <7.,

delivered the opinion of the court.

It appears from the record in this case, that William Pos sued out an attachment against the property of William II. Meek for the sum of three hundred and fifty dollars, returnable to the March Term of the Circuit Court of Winston county, 1867. The attachment was founded on an affidavit, that the defendant below was indebted to the plaintiff below in the above-stated sum or thereabouts, and that he has removed beyond the limits of said county, so that the ordinary process of law could not be served upon him.

That on the 26th day of September, 1867, the defendant by his counsel moved said court to quash the attachment, which was done, and leave granted by the court to file a new affidavit and bond, whereupon the plaintiff accordingly filed an affidavit that the defendant was indebted to him in the sum of $200 or thereabouts, and that he had removed beyond the limits of the county of Winston, where the debt was' contracted, so that the ordinary process of law could not be served upon him, and also gave bond. The counsel for the defendant then moved the court to quash the affidavit and bond; which motion was overruled by the court, and the cause submitted to a jury, who found for the plaintiff the sum of $368.66, and for. which sum judgment was rendered against the defendant, who brings the case into this court by writ of error, and assigns for error the insufficiency of the affidavit and the want of an attachment.

The record is very meagre and defectivo, and does not show any good ground for suing out the writ of attachment..

The .ground on which the attachment was taken out was, that the defendant'had removed beyond the limits of the county, so that the ordinary process of law could not bo served on him. The mere removal of the defendant into some other county in the State from that.in which the attachment issues, so that the ordinary process of law could not be served upon him there, does not furnish a sufficient ground for resorting to the extraordinary process of attachment under our statute.

The law under which this proceeding was had requires that the affidavit should state that the defendant so absconds or conceals himself, that he cannot be served with a summons. Kev. Code, 872, art. 2.

The words, that “ he has removed himself from the county,” are not equivalent in meaning to the words, that “ he absconds or conceals himself.”

Hence we have arrived at the conclusion, that the affidavit did not authorize the proceeding by attachment.

The judgment must therefore be reversed and the cause dismissed.