Schlicht v. Callicott

76 Miss. 487

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

Opinion

Terral, J.,

delivered the opinion of the court.

On the twentieth of January, 1897, John Schlicht sued out an attachment for supplies in the sum of $75 against W. C. Callicott. The attachment writ was levied the same day upon 100 bushels of corn, valued at 25 cents per bushel, and upon 3 hogs, valued at $7.50. On the twenty-fourth day of January Callicott made affidavit before the constable levying the attachment that he was not indebted to John Schlicht, his landlord, in the sum of $75, as alleged by him, for supplies, and that he desired to contest said claim. Thereupon a summons was issued to John Schlicht to appear before C. H. Marshall, a justice of the peace, on the thirteenth day of February, 1897, to contest with Callicott the right to the property levied on. On the thirteenth of February the case was continued until the seventeenth day of the same month, when John Schlicht filed a bill of particulars of his claim for supplies against Callicott, amounting to $78.05, verified by his affidavit. Callicott filed a set-off of $83.95. Thereupon a trial was had, and Callicott recovered a judgment for $25 and for the return of the corn. Schlicht appealed to the circuit court. There Callicott withdrew the affidavit before made by him in the case, and, in lieu thereof, filed an amended affidavit, alleging that in his former affidavit he had acknowledged himself the tenant of Schlicht by inadvertence, and that Schlicht was not his landlord and that he was not a tenant • of Schlicht. Callicott also filed a claim for damages in the sum of $100, and moved the court to require Schlicht to file a bill of particulars of his claim for supplies. Immediately Schlicht filed a bill of particulars of his claim for supplies against Callicott, amounting to 178.05. A jury was then taken, and the evidence of Schlicht and Frazee was taken on the behalf of Schlicht. After Schlicht had testified and after Frazee had testified at some length, Callicott moved the court “to dismiss the case, as there was no bill of particulars filed with the justice of the peace when the affidavit was made at the time the attachment was taken .out. ” The court sustained the motion and Schlicht excepted. Judgment was rendered that Callicott recover from the constable the property attached and recover his costs of suit. Schlicht appeals.

1. It is said that the action of the circuit court is correct, because it is said that the filing of the bill of particulars of his •demand for supplies by the lessor when he made the affidavit for the attachment or distress warrant is jurisdictional—a condition precedent to the issuance of a valid distress warrant. And such, undoubtedly, was the harsh and rigid doctrine of the common law, which held that every statutory or other special power must be strictly pursued. But this rigid and inhospitable rule of the common law has, by the wisdom of the legislature, been altered in the instance of distress proceedings, by § 2521, which provides that if the tenant shall replevy the goods attached, or contest the right of the lessor, and in so doing shall object to any of the attachment proceedings, that the'lessor may amend the attachment proceedings. Undoubtedly the bill of particulars filed by Schlicht was sufficient, and the motion to dismiss the case was not sustainable on that ground.

2. It .is alleged this court is without jurisdiction because less-than fifty dollars is involved. There was no trial on the merits. If there had been and the landowner had won, he would have had a judgment for seventy-five dollars, satisfiable by a sale of the things seized, with execution over for the residue, and as he might have had judgment for seventy-five dollars, we have jurisdiction, since the case went off on a motion. Biddle v. Paine, 74 Miss., 494, fixes the judgment amount as the test of jurisdiction here.

3. It is said that Callicott is not a tenant of Schlicht, and on that account a right result has been reached. The contract of lease was that Schlicht was to furnish to Callicott a dwelling house for himself and family, the land to be occupied and worked by Callicott; also necessary team, gear, farming tools for working the land, with feed for the team, and Callicott was to work the land properly, to make and gather the crops to be grown, and to pay or deliver to Schlicht one-half of the crops so made and gathered. The parties seem to have treated each other as landlord and tenant until after this suit arose, and we think correctly so.

Judgment reversed and cause remanded.