Wragg v. Kelley

42 Miss. 231

• Court: Mississippi Supreme Court
• Decided: October 15, 1868
• Status: Published

Opinion

Shaokelkobd, C.J.,

delivered the opinion of the court.

This is a proceeding by attachment, returnable to the Circuit Court of Winston county, taken out before the clerk of said court, and returnable to the March Term, 1868, thereof.

The affidavit upon which the attachment was predicated is in these words:

2 Personally appeared before me, J. J. McDaniel, Clerk of the Circuit Court in and for the County of Winston, N. L. Wragg, administratrix of the estate of David Wragg, deceased, who makes oath that E. Kelley is justly indebted to her, as said administratrix, in the sum of one hundred and thirty-five dollars, or thereabouts, and that said E. Kelley has removed from said county of Winston, where said indebtedness was created, to the county of Holmes, in the State of Mississippi, and that said indebtedness was created prior to the year A.D. 1865.

“N. L. Wragg.

“ Sworn to and subscribed this 26th day of February, 1868.

“J. J. McDaniel, .(JlerJ&P

The defendant in error moved to quash the attachment for the following reasons:

“ 1st. Because the affidavit on which said attachment is issued does not contain causes therefor known to or recognized by the statute of this State.”

The motion was sustained by the court, and the case is here by writ of-error.

The only error assigned is, “that the court sustained defendant’s motion and quashed plaintiff’s attachment on account of the alleged insufficiency of the affidavit.”

The affidavit in the case before us sets out as a ground for the suing out this attachment, “ that the defendant in error has removed from the county of Winston, where the debt was contracted, to the county of Holmes, in this State.”

That is clearly not a sufficient ground to predicate the issuance of an attachment under art. 2, p. 372, Revised Code.

If the attachment was properly issued, we have to find other authority than the Code.

It is insisted by counsel for plaintiff in error, that § 27 of the County Court Law, p. 80, Pamphlet Acts of 1865, gives the right to a creditor to sue out an attachment predicated upon such a ground as stated in the affidavit in the case at bar, returnable to the Circuit Court; that this section is a general enlargement of the attachment law applicable to Circuit Comts as well as to the County Courts.

That the word's “ but returnable before the court having jurisdiction thereof,” were meant to give the Circuit Court jurisdiction of all cases where the County Court has not jmisdiction.

This section, it is true, is obscure, though we think this obscurity is sufficiently explained by the subsequent words of this section: “And subject to all the laws, rules, and proceedings concerning attachments in other cases and courts, except as may be restricted in trial by this act,” to show that the provisions of this § 27 were intended solely for the County Court.

In section No. 24 of the same act: “ Jurisdiction is given to the County Court in all cases, in all matters of debt, contract, accounts, assumpsit, trover, detinue, replevin, trespass, ejectment, and civil suits of every description at law and in equity, where the principal of the same, or amount of damage, or the balance of the property or thing, shall not exceed two hundred and fifty dollars.”

“ That said County Court shall have original jurisdiction only over debts contracted after the passage of this act.”

The legislature, considering the jurisdiction of the County Courts not sufficiently defined in § 24 of the act, goes further in § 26 of the same act, and enacts that the said courts (county) may grant and take jurisdiction of all attachments and garnishments for persons, debts, rents, or property within the same, or amounts of its jurisdiction, and about its proceedings, upon the same grounds and causes, requirements and rules, provided in other cases for like process and proceedings in the Circuit Courts.

Under this section it seems manifest to us that the legislature intended to confer upon creditors the right to sue out attachments on all debts contracted after the passage of the County Court Act, upon the same grounds as provided for by the Revised Code, p. 372, art. 2, returnable to the County Courts.

, The legislature, it seems to us, did not intend to make it a condition precedent, that some one óf the causes provided for in art. 2, p. 372, of the Revised Code should exist, as well as the fact that the debtor “ had removed or was about removing from the county in which the debt or liability was contracted,” before the attachment could he sued out.

It is only necessary to enable a creditor to sue out his attachment, who has a debt not exceeding two hundred and fifty dollars, contracted since the 24th of November, 1865, when his debtor has removed, or is removing, or about to remove to any other county in the State, from the county where the debt or liability was contracted.

Creditors have to pursue the law of the Revised Code, p. 372, art. 2, where debts were created before' the passage of the County Court Law.

They are clearly debarred from- the remedy of attachment on debts created before the 24th November, 1865, under the provisions of § 27 of the County Court Law. If we are right in our views of the law in question, the court did not err in quash ing the- attachment in the case before us.

Let the judgment be affirmed.