Carlisle v. Gunn

| Miss. | Oct 15, 1890

Woods, C. J.,

delivered the opinion of the court.

The position of the appellant in this case differs widely from that of the appellant in Gattman v. Gunn, determined at the October term, 1889, of this court. In that case, Gattman, by his own action, had put himself in position not to be heard in an attempt to defeat Gunn in his suit to reduce his claim to judgment, and that was the question which our opinion in that case settled.

In the case at bar, Carlisle is not estopped by any act of his to deny the validity of the proceedings in the attachment suit of Gunn v. Gattman, in the Chickasaw county case. The consent decree entered in the chancery court of Monroe county, in schedule 6, contains these words, viz : “ It appearing to the court that the land contained in this schedule is claimed to be levied upon by the writs in the attachment cases of W. R. Gunn, T. B. Sykes, executor, etc., John Trice & Co., Mrs. C. W. Clopton, Jno. C. Burdine, Charles Bearing and Henry Carlisle, and said creditors being unable to agree among themselves as to who is entitled to the proceeds of the sale of said lands, and which of said creditors have valid liens thereon;

“ It is, therefore, ordered that said lands be sold by the receiver, and that he convey to the purchaser thereof all the right, title and interest of all persons whomsoever claiming any interest therein, or a levy thereon, and that he hold the proceeds thereof until the further order of the court. And it is hereby ordered by the court that an issue be made up between the aforesaid parties claiming the proceeds of the sale of said land, by giving ten days’ notice to others interested, either in term time or in vacation, to determine to whom the proceeds of the sale of said land shall be paid, from which decision either party reserves the right of appeal. That nothing contained herein shall be held to be a waiver by any of said parties of any legal rights or advantages that they may have as against the others. The only waiver intended herein is that the land be sold and the proceeds held to await the result of said contest as to whom it shall be paid.

“ The following is the land situated in Chickasaw county, Mississippi, to wit[Here the lands are described by proper legal sub-divisions, and the same are the lands involved in this controversy.]

No known processes of construction can be made to so interpret this language in schedule 6 as to place Carlisle in the position which Gattman occupied when he appeared to resist Gunn’s effort to reduce his claims to judgment in Chickasaw county. As is well said by the admirable lawyer who heard and determined the present controversy in the court below: “ This is the first appropriate proceeding in which this priority [the priority between conflicting attackers named in schedule 6] could be fixed.” It is indisputable that Carlisle did precisely what the consent decree directed in instituting his proceeding in this behalf to determine who had the prior levy and lien in the Chickasaw attachment suits.

The controlling question, at present, is as to the amendment of the affidavit in Gunn’s case, antecedent to the rendition of the judgment in attachment in his favor in the circuit court of Chickasaw. This amendment was in fact the filing of a new affidavit. What purported to be the original affidavit showed on its face that it was not sworn and subscribed on the day the bond was executed and the writ issued; the affidavit was not signed by Gunn’s agent, and the jurat was not signed by the officer who issued the writ, or by any other officer.

For the purpose of ascertaining whether an affidavit had been made, though informally or irregularly, evidence was offered, and from this evidence it appears that Gunn’s agent went to Clopton, a justice of the peace, and asked that the papers be prepared for the issuance of an attachment in favor of Gunn against the estate of Gattman, the agent stating to the officer, the amount of Gunn’s demand and the grounds on which he wished the attachment taken. The officer hurriedly prepared the affidavit, writ and bond, and, handing them to Gunn’s agent, asked “ if that was what he wanted; if it was all right.” To which the agent of Gunn replied: “ Yes; that it was all right.” If there was any affidavit made, it was made in the manner just narrated. Gunn’s agent testified that he considered that what had been detailed was swearing to the affidavit, and the magistrate testified that he was positive that no oath was administered and no attempt to make an oath was made, though he may have asked Gunn’s agent if the papers were all right and what he wanted.

This statement of the facts in evidence shows the case to be wholly unlike any of the cases referred to by counsel, in our own reports and elsewhere. It is not the omission of something that should have been inserted in the body of the affidavit; it is not the failure of the affiant to subscribe his name; nor is it the want of the officer’s signature to the jurat. It is not a question of an allowable amendment to a defective affidavit, or an attempted affidavit. It is a question of affidavit or no affidavit.

Can the circumstances referred to by us be regarded as the administration of an oath ? Can it be said that the minds of the officer and Gunn’s agent met in the act consciously, the magistrate administering and the agent taking the prescribed oath, and with that intent on the part of both? Was there anything done or said by both parties which could have been construed to be the making and taking of an oath'by Gunn’s agent? Was there the semblance of any form of speech or expression which can be held to have been a calling upon God to witness the truth of any statement made or about to be made by the agent of Gunn? Was there anything in the inquiry made by the magistrate and responded to by the agent on which any court would have sustained an indictment for peijury, if the grounds on which the attachment was based had turned out to be wilfully false ?

The question is not determinable by what Gunn’s agent “ considered” he was doing. The question is what was done, not what one of the necessary parties to the administration and making of the oath “considered.”

To us it seems plain that there was no affidavit made on the day of the issuance of the writ, and that there could be no amendment of an affidavit which, in fact, had never been made. It follows that Gunn’s levy on the 19th of March, based upon the supposed affidavit of the 18th of March, was invalid as to any other subsequent and intervening attacher with a valid levy and lien regularly obtained.

We deem it unnecessary and improper to consider, on this appeal, the questions presented by counsel for appellee touching the proceedings had by Carlisle in his attachment. Those questions are not now before us.

Reversed and remanded.