68 So. 166 | Miss. | 1915
delivered the opinion of the court.
Appellee brought suit by attachment and levied on a pony, fifteen mules, corn, cotton seed, wagons, and farming implements, the property of appellant. There were three issues tried: First, whether the attachment was rightfully sued; second, on the merits — that is, whether the appellant was indebted to appellee; and, third, whether appellant was entitled to the proceeds of the sale of certain property claimed by him as exempt.
Concerning the first issue: We quote the grounds stated in the affidavit for attachment:
*242 “That the said William Anderson has property or rights in action which he conceals and unjustly refuses to apply to the payment of his debts; that he has assigned or disposed of, or is about to assign or dispose of, his property or rights in action, or some part thereof, with the intent to defraud his creditors; that he has converted, or is about to convert, his property into money or evidences of debt, with intent to place it beyond the reach of his creditors; that he fraudulently contracted the debt or incurred the obligation for which suit is about to be brought.’.’
The trial court granted a peremptory instruction in favor of appellee, the attaching creditor. He was well authorized to do this by the testimony.
Appellant claims that peremptory instruction should have been given him, because in his testimony on the trial of the issue he stated that he had paid the debt sued on, and that this was not then denied. The issue was made up on appellant’s plea in abatement, which entered a categorical denial of the grounds of attachment. There was no denial of the indebtedness. There was therefore no issue for trial on the indebtedness, and we do not consider this point well taken.
Appellant further contends that the peremptory instruction should have been granted him because he had property sufficient to pay his debts and he was offering to pay what he claimed he owed. But we note that the grounds for attachment includes the charges that appellant has property and rights of action which he conceals and refuses to apply to the payment of his debts, that he had made or was about to make a fraudulent disposition thereof, and had made or was about to make a fraudulent conversion of his property into money to place it beyond the reach of his creditors.' When concealment and fraudulent disposition and conversion of his property by attached defendant is in evidence, the proof by his own testimony that he has sufficient prop
As to the trial on the merits: Appellant assigns as error the permission granted by the court to appellee to amend his declaration after the trial of the issue on attachment, whereby the amount of indebtedness as claimed in the original declaration was increased. In the beginning of the case, appellee made affidavit to indebtedness owing by appellant in the amount of four thousand and five hundred dollars. Bond was given in double this amount. No change was ever made in the amount of the bond. Upon motion, appellee was allowed to amend his affidavit, So as to fix the indebtedness at one thousand and seven hundred and eighty-five dollars and thirty-two cents. The original declaration then alleged that appellee owed the sum of one thousand and five hundred dollars for a balance oh rent for 1912 for a plantation which he had leased from appellant for the years of 1912, 1913, and 1914 for rental of three thousand dollars per year, and for the further sum of two hundred and eighty-five dollars and thirty-two cents for taxes for the year of 1912, which appellant had contracted in the lease contract to pay. In the amendment to the declaration appellee sued for an additional amount of one thousand and five hundred dollars as loss in rent for 1913, resulting from appellant’s abandonment of the place for the year and his refusal to pay the rent of three thousand dollars, and appellee’s inability to obtain a tenant for a rental for more than one thousand and five hundred dollars for the year.
Counsel for appellant argues that the affidavit, writ, and declaration should have corresponded, and the variance in this case was fatal. There was a time in the jurisprudence of this state, when, by reason of the statutory requirement that the affidavit in attachment should set forth what the indebtedness consisted of and how due (see Code of 1871), it could be said that there
The amendment, was proper in the case. It presented a claim for an additional amount owing by appellant to appellee in the same business transaction between them, the lease contract. The attachment was rightfully sued out. The verdict of the jury was for the recovery of a claim properly and sufficiently declared on and a part of the cause of action in the case. We see no force in the contention by appellant that the court erred in granting and refusing certain instructions.
Relative to the claim to exemptions: We note that the claim to the corn and cotton seed was allowed by agreement of appellee. There then remained his claim to two work mules, one wagon and set of harness, and one hay mower and rake. These last were sold during the pendency of the suit and the proceeds were in the hands of the sheriff. No claim was interposed to the property when the levy was made. It is contended that, because appellee failed to make claim to his exemptions as to the specific property at the time it was levied on in accordance with the statute (section 2142 of
But appellant, as an exemptionist, is not confined to this remedy given by the statute. Moseley v. Anderson, 40 Miss. 49. He was entitled in this case to claim the proceeds of the sale of the several items of property which he selected. We -will not sustain his claim for the amount of the value of the property as estimated by him, but only for the sum actually received at the sale thereof. Judgment in favor of appellant for same should have been rendered in the court below. We are unable to enter such judgment here, because we fail to find in the record information as to the exact amounts received by the officer for the sale of the wagon and harness and hay mower and rake. The amount from the sale of the mules could be arrived at by taking the sums received from the sale of the two mules bringing the highest prices.
The judgment in this case is affirmed as to the issues on the plea in abatement to the attachment and as to the merits. The case will be reversed and remanded only for the ascertainment of the amount to be received by appellant for his exemptions in accordance with this opinion, and the entry of judgment accordingly. The costs of this appeal will be divided between appellant and appellee.
Affirmed.
Reversed and remanded.
