47 So. 429 | Miss. | 1908
delivered tbe opinion of tbe court.
We are unable to distinguish tbis case from tbe case of Sears v. Gunter, 39 Miss. 338, and tbe court should have sustained tbe motion to dismiss the claim because of tbe failure of tbe claimant to join issue at tbe first term, as required by Code 1906, § 4993. Tbe only difference appearing in tbe record of this ease from that of tbe Gunter case, above referred to] is that in tbe Gunter case tbe failure to tender issue was on tbe part of tbe plaintiff in execution, while in tbis case tbe failure to join issue is on the part of tbe claimant. Code 1906, § 4993 (Ann. Code 1892, § 4428), in regard to trial of right of property levied on under an execution, requires tbe issue to be made up at the term to which an execution is returnable; and it is equally incumbent on both the plaintiff in execution and tbe claimant of tbe property to see that tbis is done. If either fail to make up tbe issue at the return term, it cannot be done afterwards; but upon default by either party such subsequent proceeding must be bad as tbe statute requires for tbe default of the plaintiff in execution, or tbe default of tbe claimant, as tbe case may be. In tbis case tbe claimant bad not filed joinder of isEjue at tbe return term, nor been allowed any extended time by tbe court.
The judgment is reversed and case remanded, to be proceeded with in accordance with Code 1906, § 4993, directing what shall be done on the failure of tbe claimant to join issue when tendered at tbe first term.
Reversed.
