Sale v. French

61 Miss. 170

• Court: Mississippi Supreme Court
• Decided: October 15, 1883
• Status: Published

Opinion

Cooper, J.,

delivered the opinion of the court.

While it has been repeatedly said by this court that in suits by attachment the plaintiff must recover a judgment of condemnation against the property seized before he can enter into a contest with a claimant of such property, it has never been held that to constitute such judgment there must be a formal sentence of condemnation, such as is made in proceedings strictly in rem. As to the property seized, these proceedings have frequently been styled proceedings in rem, and it is not altogether incorrect so to designate them, since the property is in custodia legis, and is specifically subjected to the satisfaction of the plaintiff’s demand; but such suits are also proceedings in personam, since it is the personal obilgation of the defendant owner which is the foundation of the suit, and it is not necessary that the property seized should have had any sort of connection with the contract sued on. The property seized is not the debtor to the plaintiff, but stands in the suit in which ft is attached as the representative of its owner, the defendant. The right to attach is simply the right to seize the property of the debtor and to deal with it as his representative. By the seizure of the thing the right becomes initiate and is consummated by the recovery of the judgment against the owner. If the defendant is served with process or appears and defends, a general judgment may be rendered against him, upon which a general execution may issue. If the court fails to obtain jurisdiction of the person of the defendant, a general judgment is rendered, but its execution is restricted to the property seized. Code 1880, § 2467. The legal effect of a judgment against the defendant is to condemn the property seized to sale, and though the practice is to make an order of condemnation in the judgment, it is not necessary to do so.

Judgment reversed.