Terry v. Jolly

75 So. 756, 115 Miss. 26

Opinion

Cook, P. J.,

delivered the opinion of the court.

This suit was begun in the court of a justice of the peace, appealed to the circuit, and there a judgment was rendered against the defendant, and he has appealed to this court.

The action was begun by attachment upon the ground that defendant “has assigned or disposed of, or is about to assign or dispose of, his property or rights in action, with the intent to defraud his creditors.”

The evidence tended to show that defendant was running a sawmill and that he shipped his lumber out of the state; that he owed plaintiff and had not paid him. At this point plaintiff rested.

Defendant testified that he had shipped his lumber out of the state; that he had sold the same and used the proceeds in the payment of his debts. There was some dispute as to the amount of defendant’s indebtedness to plaintiff.

As we view the record, there is no evidence tending to prove the alleged ground of attachment. The trial seems to have proceeded upon the theory that, if the plaintiff proved that defendant had shipped his property out of the state, he was entitled to a verdict sustaining the attachment issue. This is not true. The plaintiff must sustain his alleged ground of attachment, and it did not help him to prove other grounds for attachment not alleged in the affidavit for attachment. The plaintiff wholly failed to prove the ground of attachment upon which he secured his writ of attachment, and defendant was entitled to a verdict on the attachment issue.

There was a conflict about the indebtedness of defendant to plaintiff.

The judgment will be reversed, and the cause remanded for a new trial.

Reversed and remanded.