Weissinger v. Studebaker Bros. Manufacturing Co.

73 Miss. 480

Opinion

Woods, J.,

delivered the opinion of the court.

Under the first instruction given by the court for the plaintiff on the attachment issue, the jury was informed that if “the defendant was insolvent at the time the attachment herein was sued out and had at any time before used any part of his property or the proceeds thereof, except for necessary support of himself and his family, for any other purpose than that of paying off and discharging his tona fide existing debts, the jury will return a verdict in favor of the plaintiff.” The instruction is radically erroneous. The insolvent debtor, just as the solvent debtor, may honestly prosecute his business in the usual and ordinary methods, and is open to attachment only when his conduct makes him subject thereto on some one or more of the specific grounds enumerated in our statute. It is not true that the unfortunate insolvent debtor cannot use his property, or the proceeds thereof, or any part of such property or proceeds, for any other purpose than that of paying his debts, except in so far as necessary for the support of himself and his family. This view would deny to the debtor unable to pay his creditors the right to make any effort to recover his lost ground and to restore himself to a condition of ability to pay, and compel him to surrender to his creditors for payment of their demands all his property on the instant his inability to pay his debts in full become apparent.

From the plaintiff’s declaration and exhibit, as well as from the evidence generally, it is plain that there was an attempt to commingle two independent actions begun by attachment — one for a debt due, and another, and for a much larger sum, for a debt not due. The attachment was taken out for the recovery of 11,448.95 charged to be past due and unpaid. But on trial it perfectly appeared that more than a thousand dollars of the debt alleged to be due was not due when the attachment was taken out. When the defendant called the attention of the court to this insuperable bar to further proceedings, as the case then stood, by his motion to exclude all the plaintiff’s evidence, on this very ground, the writ should have been quashed and the suit dismissed, in the absence of any motion by the plaintiff to amend its affidavit and writ. See Yale v. McDaniel, 69 Miss., 337, and, particularly, Dalsheimer v. McDaniel, Ib., 339. It follows, therefore, that the judgment, obtained by a peremptory charge to the jury to find for the plaintiff on the merits, was also erroneous.

The judgment on the attachment issue and the judgment on the merits are reversed, and the cause remanded for a new trial.