S. Bernheimer & Sons v. Martin

Mississippi Supreme Court

S. Bernheimer & Sons v. Martin

66 Miss. 486

CourtMississippi Supreme Court

DecidedApril 15, 1889

StatusPublished

Cited by2 cases

This text of 66 Miss. 486 (S. Bernheimer & Sons v. Martin) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

S. Bernheimer & Sons v. Martin, 66 Miss. 486 (Mich. 1889).

Pincite

Opinion

Campbell, J.,

delivered the opinion of the court.

The court properly dismissed the action of replevin because the [489]*489plaintiff could have interposed a claim to the cotton, as provided by | 2227 of the code, and therefore had no right to the action of replevin. Code, § 2633. The proposition that the justice of the peace, under whose process the cotton was seized and held, when the action of replevin was instituted, could not try a claim to the -cotton interposed by a third person, because the value of the cotton exceeded his jurisdiction, is not maintainable. An execution issued by‘ a justice of the peace may be levied on property of any value, however great, and the claim of a third person to it is triable by him, because the statute so provides, and it is free from, any objection on constitutional grounds, since a trial of the right of property in such caséis not a “ cause” in the sense of the constitution in limiting the jurisdiction of justices of the peace, but is an incident •of the exercise of the undoubted jurisdiction of such justice as conferred by the constitution.

A circuit court may entertain jurisdiction of garnishments and •claims of third persons to property seized under process of that court, where the amount involved is less than one hundred and fifty dollars, Martin v. Harvey, 54 Miss. 685, and justices of the peace may secure to parties having judgments in their courts the fruits thereof by garnishing debtors of the judgment debtor however large their indebtedness may be, or by levies on any property subject, whatever its value, and the question of the liability of the debtor’s property to the satisfaction of the judgment is triable by the justice ■of the peace, on any issue made under the law. Any other view would fall short of the grant of jurisdiction by the constitution and laws, and be productive of serious practical inconvenience. Smith v. Newlon, 62 Miss. 230.

Upon the dismissal of the action of replevin the court should have awarded a writ of inquiry and given judgment on the bond of the plaintiffs in favor of the defendant for the cotton or its value as .assessed, as provided by § 2623 of the code. Clark v. Clinton, 61 Miss. 337.

The judgment dismissing the action is affirmed, and the judgment ■denying the writ of inquiry is reversed, and cause remanded for the execution of a writ of inquiry, etc. The costs of this appeal to be paid by S. Sernheimer & Sons.

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Campbell, J.,

delivered the opinion of the court.

The court properly dismissed the action of replevin because the [489]*489plaintiff could have interposed a claim to the cotton, as provided by | 2227 of the code, and therefore had no right to the action of replevin. Code, § 2633. The proposition that the justice of the peace, under whose process the cotton was seized and held, when the action of replevin was instituted, could not try a claim to the -cotton interposed by a third person, because the value of the cotton exceeded his jurisdiction, is not maintainable. An execution issued by‘ a justice of the peace may be levied on property of any value, however great, and the claim of a third person to it is triable by him, because the statute so provides, and it is free from, any objection on constitutional grounds, since a trial of the right of property in such caséis not a “ cause” in the sense of the constitution in limiting the jurisdiction of justices of the peace, but is an incident •of the exercise of the undoubted jurisdiction of such justice as conferred by the constitution.

A circuit court may entertain jurisdiction of garnishments and •claims of third persons to property seized under process of that court, where the amount involved is less than one hundred and fifty dollars, Martin v. Harvey, 54 Miss. 685, and justices of the peace may secure to parties having judgments in their courts the fruits thereof by garnishing debtors of the judgment debtor however large their indebtedness may be, or by levies on any property subject, whatever its value, and the question of the liability of the debtor’s property to the satisfaction of the judgment is triable by the justice ■of the peace, on any issue made under the law. Any other view would fall short of the grant of jurisdiction by the constitution and laws, and be productive of serious practical inconvenience. Smith v. Newlon, 62 Miss. 230.

Upon the dismissal of the action of replevin the court should have awarded a writ of inquiry and given judgment on the bond of the plaintiffs in favor of the defendant for the cotton or its value as .assessed, as provided by § 2623 of the code. Clark v. Clinton, 61 Miss. 337.

The judgment dismissing the action is affirmed, and the judgment ■denying the writ of inquiry is reversed, and cause remanded for the execution of a writ of inquiry, etc. The costs of this appeal to be paid by S. Sernheimer & Sons.

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