Brown v. Williams-Brooke Co.

63 So. 351 | Miss. | 1913

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from the decree dissolving an injunction.

On the. 19th day of December, 1911, appellee, through its agent, filed with the justice of the peace an affidavit, alleging that Jim Brown was justly indebted to it in the sum of one hundred and sixteen dollars, “and that he has property and rights in action which he conceals and unjustly refuses to apply to the payment of said amount,” suggesting that Mrs. R. D. Brown was indebted to the. said Jim Brown, and praying for a writ of attachment against him and a writ of "garnishment against R. D. Brown. This writ was issued and served upon both of the Browns, and on the return day thereof, they haying made default, the following judgment was entered: “This cause coming on to be heard this the 13th day of January, 1912, being a regular court day, and it appearing that both the defendant, Jim F. Brown, and the garnishee, Mrs. B. D. Brown, having been legally summoned and both having made default in appearing to answer said suit, it is therefore ordered and adjudged that the plaintiff, Williams-Brooke Company, have a judgment against the said Jim F. Brown in the attachment suit for one hundred and sixteen dollars and costs, and a judgment against Mrs. B. D. Brown as garnishee in the same amount, for which let execution issue. Ordered this the 13th day of January, 1912. W. J. Massingale, J. P.” A writ of execution was issued on this judgment, whereupon this bill was filed by appellant to enjoin the execution thereof.

This writ of attachment and garnishment was not served by the sheriff or a regular constable, but was served by a private citizen, who had been verbally authorized so to do by the justice of the peace; the regular constable being sick and unable to attend to his duties.

To this bill a demurrer was interposed, and while the demurrer was pending a motion to dissolve was made. This motion and demurrer were both overruled. Thereupon appellant filed its answer, and another motion to> dissolve was then'made; the allegations of the answer being supported by affidavits. This motion was sustained, and this appeal is from the decree so doing.

Appellant’s objection to this decree is that the judgment rendered by the justice of the peace is void: (1) Because no disposition was made by him of the attachment issue. (2) Because he should have rendered three-separate judgments, one on the attachment issue, one-on the merits of the case, and one on the garnishment •issue, and not have embodied all of these judgments in. one. (3) Because the attachment writ erroneously recited the ground of the attachment, the recital therein-being as follows: “That he unjustly refuses to apply the property which he has and rights of action to the-payment of said amount” — whereas the recital in the affidavit was “that he has property ,and rights in action which he conceals and unjustly refuses to apply to the payment of said amount.” (4) That there is no allegation in the affidavit or recital in the judgment that Williams-Brooke Company is either a corporation or a partnership, and, if a partnership, that the names of the members thereof are not stated. (5) Because the appointment of the special constable to serve the writ of attachment and garnishment was not made in writing.

There is no merit in any of these contentions. In so far as the appointment of the special constable is concerned, it will he sufficient to say that such an appointment is governed by section 2732 of the Code, which section does not require it to be in writing.

Williams-Brooke Company is admittedly a corporation in fact. The name is appropriate for that of a corporation, fairly imports corporate character, and after verdict rendered without objection thereto it will be presumed to designate a corporation. Seymour v. Thomas Harrow Co., 81 Ala. 250, 1 So. 45.

Affirmed.