Miller v. Edwards

75 Miss. 739

• Court: Mississippi Supreme Court
• Decided: March 15, 1898
• Status: Published

Opinion

Whitfield, J.,

delivered the opinion of the court.

Section 2403, code of 1892, does not authorize a justice of the peace to specially appoint -a private person, in a case of emergency, to execute process outside the county in which he is such justice of the peace. In Barnett v. Ring, 55 Miss., 97, the alias writ was received and executed by the sheriff, and the property dealt with by him thereunder. Here the sheriff had no writ at all, and dealt with the property solely under the void levy of the specially deputized private person. In Bates v. Crow, 57 Miss., 676, the court reversed the case because the suit, on the merits, was erroneously dismissed, as well as the attachment proceedings. And so reversing, the court said that the plaintiff might, on the return of the case, still apply for a writ to the sheriff, to be by him executed as in Barnett v. Ring. The court also expressly held that the dismissal of the attachment proceedings was proper. If, in Bates v. Crow, there had been no reversal because of the error of the court below in dismissing the suit on the merits, the judgment there clearly would have been affirmed. Here the agreement of counsel expressly cuts us off from considering the action of the court below in dismissing the suit on the merits, if his action was otherwise correct. It was otherwise clearly right, and hence the judgment is

Affirmed.