46 So. 69 | Miss. | 1908
delivered the opinion of the court.
The justice of the peace in Jones county, for his own convenience and the convenience of the public, held a term of court in two different parts of the county. One of these places was Laurel, and the other was at a place called Summerland in some places in the record, and in other places it is called Gitano. J. M. Edwards got a judgment in the court of that officer at Laurel on January 21, 1905, and a writ of garnishment -was issued agáinst the Kingston Lumber Company. That writ the justice made returnable to the next term of his court which was to be held at Laurel, and not to the intervening court which he held at Gitano, some eighteen miles distant from Laurel; and at Laurel judgment by default was taken against the garnishee. Levy having been made and a sale being about to take place, Mr. Edwards, the plaintiff in the judgment, and the ■proper officers, were enjoined; and, the pleadings and proof •showing this condition of things, the chancellor on final hearing held “that the writ of garnishment issued by the justice of the peace is void, for the reason that it was not made returnable to the first term of the justice’s court to be held more than five ■days after the issuance of the writ; the said writ should have been made returnable on Friday, the 3d day of February, 1905, which the court finds was a general term of the said justice’s court, instead of the 18th day of February, which the court finds was also a regular term of court, but the second term from the date of the issuance of said writ of garnishment.”
So we find the actual case to be a complaint that on the judgment, issued at Laurel, the writ of garnishment should not have been made returnable to the next regular term at Laurel, but to the intervening regular term at Gitano, in which court, as a matter of fact, there never had been any proceedings whatever. We find by Ann. Code 1892, § 2130, all such writs are returnable to “the term of the court to which the garnishment may be returnable.” Section 2140 of that Oode requires an answer to the garnishee process “ by noon on the return day of the writ.”
We therefore think that the decree of the court was erroneous, and we should in consequence enter a final decree here;but, owing to the fact that another point is made in the case, which is that the writ of garnishment was never served on the appellees as a matter of fact, and the chancellor made no finding-as to this, and as we are simply a revisory court, and cannot either reverse or affirm on a matter not acted on, this case-must be reversed, and also remanded.
Reversed..
