Dean v. Stephenson

61 Miss. 175 | Miss. | 1883

Cooper, J.,

delivered the opinion of the court.

The appellee sued out an attachment against one McLaughlin and against the appellants. McLaughlin interposed no defense and a judgment by default was taken against him on the attachment. The appellants traversed the attachment, and on this plea a trial was had which resulted in a verdict and judgment in favor of the plaintiff. With their plea in abatement these defendants did not file any account of the damages which they claimed for the wrongful issuance of the writ. Having sustained the attachment issue, the plaintiff found himself unable to establish any debt against the appellants and dismissed his suit as to them, taking judgment for the debt sued on against McLaughlin alone. In this judgment there appears the usual condemnation of the goods attached to sale. The appellees moved the court to correct the final judgment by striking out that part condemning the goods, which motion was overruled. They moved for a new trial, and this motion was also overruled. They now appeal and assign for error the action of the court in overruling these motions.

By dismissing his suit as to the appellants, the appellee admitted that he never had just cause to sue out the attachment against them, and the judgment of dismissal ipso fado vacated the judgment which had been rendered on the plea of the appellants traversing the attachment. By the levy of the writ the plaintiff acquired a lien upon the g^oods attached, the continuance and effect of which depended upon his procuring a final judgment in the suit. The judgment on the plea in abatement was but one of the steps necessary to be taken by him to perfect his right. Failing in jthis Or. in the issue in chief, the attachment lien was destroyed, aqd with it all steps taken for its perfection. Drake on Attachment, §§ 228, 413, and authorities cited. The motion for a new trial was, therefore, properly overruled, since at most the appellants could only have obtained a judgment discharging the attachment, and that is the effect of the order dismissing the suit as to them. '

It was not error to refuse to strike from the judgment the order of condemnation of the goods attached. The effect of this order is not to make liable the goods of the appellants which have been seized. It is only a condemnation of the goods of the defendant McLaughlin, which are in the hands of the officer; and if there are none such, then none are condemned. There is nothing in the judgment which prevented, or which now prevents, the appellants from the interposition of a claim to the property, or if it has been sold to the proceeds of sale. Upon the dismissal of the attachment by the plaintiff the appellants were entitled to have a jury empaneled to assess the damages sustained by them by reason of the suing out the attachment. Code 1880, § 2432. This was the measure of their right, but this right has neither been asked by them nor refused by the court. The. judgment of the court below is in favor of the appellants, and from such a judgment they cannot appeal.

Appeal dismissed.