| Miss. | Oct 15, 1882
delivered the opinion of the court.
The first question to be decided in this case is, whether in the trial of the issue between the plaintiff in the attachment and the claimant of property levied on, the judgment in favor of the plaintiff’ against the defendant in the attachment is a part of the record in the trial of the right of property, and,
In Mandel v. McClure, 14 Smed. & M. 11, which was an attachment and claim to property seized, the argument of the •opinion is directed to the necessity of a judgment against the defendant in attachment, which is held to be a condition precedent to the right of the plaintiff to contest with the claimant?* In that case a judgment had not been rendered, and this was fatal to the judgment against the claimant. The court looked through the record of the attachment suit to discover the fact that the required judgment had not been given.
The case of Maury v. Roberts, 27 Miss. 225" court="Miss." date_filed="1854-04-15" href="https://app.midpage.ai/document/maury-v-roberts-8256655?utm_source=webapp" opinion_id="8256655">27 Miss. 225, was an attachment, and the same view which prevailed in Mandel v. McClure, above, was announced without reference to that case, and the court discovered the non-existence of a judgment by examining the record of the attachment proceeding.
Melins v. Houston, 41 Miss. 59" court="Miss." date_filed="1866-10-15" href="https://app.midpage.ai/document/melius-v-houston-8257757?utm_source=webapp" opinion_id="8257757">41 Miss. 59, was an attachment, and the record showed that judgment had not been given, and it was held unnecessary in a spirited opinion which took no noticeof the two former cases holding a contrary view.
In Dickman v. Williams, 50 Miss. 500" court="Miss." date_filed="1874-10-15" href="https://app.midpage.ai/document/dickman-v-williams-7984452?utm_source=webapp" opinion_id="7984452">50 Miss. 500, the doctrine of the last mentioned case was overthrown, and that of the former cases declared to be the true one. In this case no judgment had been given, as was shown by the record of the attachment inspected by the court.
In Helm v. Gray, 59 Miss. 54" court="Miss." date_filed="1881-10-15" href="https://app.midpage.ai/document/helm-v-gray-7985619?utm_source=webapp" opinion_id="7985619">59 Miss. 54, it was argued by counsel for the appellee that it was necessary for the record to show that plaintiff in the issue for the trial of the right of property ■offered in evidence the judgment in his favor against the
In Meacham v. Moore, 59 Miss. 561" court="Miss." date_filed="1882-04-15" href="https://app.midpage.ai/document/meacham-v-moore-7985727?utm_source=webapp" opinion_id="7985727">59 Miss. 561, the attachment was before a justice of the peace, and the claim of property was tried before him and found against the plaintiff, who appealed, and the transcript of the justice’s recSrd filed in the Circuit Court did not show that a judgment had been given in the attachment, and it was not controverted that it was necessary to show that judgment had been given in the attachment, and no question was made in this com't other than as to the action of the Circuit Court in refusing to permit the plaintiff ,j:o show the judgment under the circumstances detailed in the report of the case.
Therefore, while it has been several times held that there must be a judgment in the attachment suit before trial of the issue on the claim of property, and while some of the language used in the cases is calculated to countenance the proposition that the judgment must be given in evidence on trial of this issue, and this view seems to have passed unchallenged by counsel or court in some instances, it is true that the question has not been decided by this court, aad is for the first time distinctly and specially presented for decision.
The claimant of property seized under execution intervenes, not in a pending suit, but in one ended and past. The claimant under an attachment interposes in a pending suit, must await its termination as between the parties, before his claim can be adjudicated, is bound to watch its progress, and at its ending in favor of the plaintiff, must be ready promptly to accept the issue tendered by him, and contest his right to subject to his judgment the subject of his claim. The claim throws an obstacle in the way of a plaintiff, who must first obtain a judgment of condemnation of the property claimed as against the defendant, and then encounter the claim of the claimant, who has asserted his right and denied that of the-
There must be a judgment in the attachment. That is a prerequisite to the right of the plaintiff to contest with the claimant, who may remain passive until the plaintiff thus becomes eligible to contest his claim. An objection by the claimant to the issue tendered as premature because no judgment had been given in the attachment would bring to the notice of the court the record of the proceedings in the attachment. A motion by the claimant in'arrest of judgment would 'cause an inspection of the record of the attachment suit If an inspection of the record showed that the attachment was void the court would so pronounce it. The claimant would not have to offer the record in evidence. His motion would present the question just as that of a garnishee in such a case does. He must see that a valid judgment exists. So a claimant who may decline a contest with one not eligible for it, may dispute the right of the plaintiff to have a trial of an issue with him, and may appeal to the record of the plaintiff’s cause in support of his attitude. In the cases cited above, the court looked through the record of the attachment proceeding, and finding that judgment had not been rendered in the attachment, pronounced the trial of the claimant’s issue premature. In several of those cases the position of the claimant was likened to that of a garnishee, and it is certain that the entire record of the attachment proceeding goes with the garnishment proceeding. If has ever been so in our practice, and Drake on Attachment says, sect. 658 a, “ if the garnishee is summoned under an attachment, the true view seems to be that the garnishment, though in some sense a distinct
-Therefore, we deny the motion to strike from the record filed here, such parts of the attachment proceeding as it contains," and grant the motion for certiorari to bring up the judgment in the attachment, and carrying out the understanding had upon the submission of these motions, and having the ■case before us on its merits we now address ourselves to it.
The court erred in excluding from the jury the statements made by A. H. French at the time of his selling part of the “ circus property,” to the effect that1 it belonged to the appellant, and had been left by appellant with him for sale. It was sought to disprove the claim of the appellant to the property^ by showing that A. H. French, his brother, disposed of some of it, and it was competent to show the declarations of A. H. French attending the acts of apparent ownership exercised by him and produced in evidence as indicative of his ownership. They were strictly part of the ree gestee and admissible as explanatory of the thing done.
The court erred in admitting the .testimony of McMillan and the five checks, and denying the opportunity to the appellant to explain the transactions in which they were drawn. It was not just to the parties concerned to contradict the witnesses in this material matter without asking about the checks eo nomine, and then to deny the offered explanation. The attention of the witness should have been called to the checks, and he should have been asked about them, or after they were produced before the jury an opportunity to explain them should have been given, and its denial was erroneous.
Judgment reversed and cause remanded for a new trial.