Advance Lumber Co. v. Laurel National Bank

| Miss. | Apr 15, 1905

Whiteielb, C. J.,

delivered the opinion of the court.

The remedy sought to be pursued here was an attachment in chancery, yet only personal property was levied upon, and no bond was given, as provided by Code 1892, § 518, nor affidavit made, as provided by Code 1892, § 512. An attachment cannot be issued by the chancery court except in accordance with sec. 486, et seq. It must conform to the provisions of the law as announced in sec. 486; it must show that the nonresident “has lands and tenements within this state, or it must go against any such debtor and persons in this state as have in their hands effects of, or are indebted to, such non-resident, absent or absconding debtor.” The allegations of this bill and of the writ are not at all in accordance with these provisions. All that was levied on was personal property, and the remedy which should have been pursued was to issue a writ of sequestration, making the affidavit and giving the bond as required by Code 1892, § 513. The bill does not show that the nonresident debtor had any lands in this state, nor does it join in the attachment against such non-resident defendant “any persons who had in their hands effects,” etc. There would be small need, if this proceeding could stand, to sue out an attachment at law, since, on the view of this appellee, an attachment in chancery of personalty may he issued without bond. The whole proceeding is misconceived. The attachment was wrongfully issued and levied, and the court had no jurisdiction. The motion to quash the writ and vacate the levy should have been sustained, and the demurrer should have been sustained.

Reversed, demurrer sustainedand decree here dismissing the Ull.