Barlow v. Serio

93 So. 356 | Miss. | 1922

Ethrdge, J.,

delivered the opinion of the courts

The appellants' sued out a distress for rent against the appellee, alleging that they were landlords and entitled to a landlord’s lien on certain described products grown upon the premises described in the affidavit. Bond was given, and a writ of distress was issued, commanding seizure of the products described in the affidavit and sale thereof. The amount of rent claimed was six hundred dollars, and the distress warrant was issued by a justice of the peace, and the property was seized under said warrant by the constable. Thereupon Serio filed a replevin in the circuit court, replevying the property so seized. Serio gave bond in the sum of twelve hundred dollars, payable to the appellant to perform such judgment as the court should render should he fail to maintain his suit. The appellants then filed their avowry, alleging that the seizure of said property was not wrongful, because the defendants were the plajntiff’s landlords, and had leased to plaintiff certain property as a tenant, and that the tenant was indebted to the defendants as landlords, making a rent note an exhibit to the avowry; that the defendants had just cause to suspect and verily believe that plaintiff would remove his effects, or some parts of the agricultural products raised on the leased premises, before the expiration of the lease term, etc.

Á motion ivas filed by the plaintiff to strike out the avow-ry : First, on the ground that it was frivolous and not filed Avith the intention of being prosecuted; second, that the attorney for the defendants does not represent the defendants, and said avowry Avas filed through error; but no action on this motion is shoAvn by the record, and it is stated in briefs that it Avas not presented to the court to be acted upon. On a subsequent day of the court an order was taken, reciting that defendants,' having been thrice solemnly called, came not, but wholly made default; it is therefore ordered by the court that plaintiff in replevin do have and recover of and front defendants fourteen bales of cotton sued for, etc. Subsequently the appellants filed notice with the stenographer, notifying him that appellants desired to appeal from said judgment, and that their information was that there ivas no evidence taken on the trial, but that, if evidence was taken on the trial, to please transcribe the same as required by law, and if there Avas no evidence taken on the trial of said cause, to please furnish them Avith certificate to that effect. This notice was filed with the clerk and served on the stenographer, Avho certified that an examination of his notes showed there was no testimony taken in said cause.

It is assigned for error that the court erred in i*endering the judgment by default when the pleadings by the defendants were on file, and no testimony was taken to establish the cause of plaintiff. We think the judgment on its face shoAVS there Avas ho proof taken, which is also supported by the certificate of the stenographer to that effect. It is contended by the appellee, hoAvever, that the original distress Avarrant wag void, and that the court had no jurisdiction of the suit for that reason. The facts are that the distress warrant Avas actually sued out, and under our statute as it uoav exists was amendable, if defective in any particular. The appellee filed a suit to regain possession- of his property so taken, and this replevin Avas the thing that gave jurisdiction to the circuit court. This suit in replevin was in issue by the filing of the avowry, Avhich required some proof to support the declaration until said plea was disposed of in some manner known to the laAV. The record shows it Avas not disposed of, or at least failed to sIioav that it was disposed of, and it Avas therefore error to take a judgment by default. The judgment Avill therefore be reversed, and the cause remanded for further proceedings.

Reversed and remanded.