48 So. 232 | Miss. | 1909
delivered tbe opinion of tbe court.
A peremptory instruction should not have been given on the attachment issue on either of the grounds alleged in the affidavit. The first ground alleged that the defendants were nonresidents of the state, but the facts demonstrate that one of the partners resided- in Amite county, in the state of Mississippi, and therefore this ground of attachment necessarily fails, since section 131 of the Code of 1906, contemplates that, where one or more of the partners reside in this state, an attachment cannot be sustained on the ground of non-residence. As to the second ground, which' is that the debt was fraudulently contracted, etc., the evidence certainly does not warrant a peremptory instruction as to this. It follows that the peremptory instruction given on the attachment issue was error, and for this reason the judgment is reversed and remanded on this issue.
As to the debt issue, there was a general appearance entered and a trial had, resulting in a verdict for the plaintiff, and we think properly. Therefore, as to this issue, the case is affirmed.
Affirmed in part, reversed in part.