Gray v. Valley

101 So. 855 | Miss. | 1924

Anderson, J.,

delivered the opinion of the court.

This is an attachment for debt sued put by appellee, David P. Valley, against appellant, D. E. Griswold. There was a trial resulting in a. judgment for appellee on both the attachment and debt issues from which judgment appellant prosecutes this appeal.

The fifth ground in the statute (Hemingway’s Code, section 125') was one of the grounds relied Pn by appellee. That ground is in this language: “That he has property or rights in action which he concealed, and unjustly refused to apply to the payment of his debts.” The trial court refused appellant’s request for a directed verdict, and the case was submitted to the jury on the attachment issue. A verdict was returned for appellee.

Appellant contends that there was not sufficient evidence to go to the jury on any of the grounds of attachment. On the former hearing of this cause appellee in Ms brief and argument gave the fifth ground of attachment very little consideration. Appellee’s suggestion of error is devoted very largely to the proposition that there was sufficient evidence to sustain that ground of attachment. We have reached the conclusion that appellee’s contention is well founded. The evidence hearing on that ground of attachment is undisputed. It is substantially as follows: Appellant had on deposit in the Bank of Gulfport, in the name of Dewitt E. Gray, an assumed name, one thousand six hundred fifty-one dollars and ninety-four cents. He had a safety deposit box in that bank, secured and held in another assumed name, H. D. Mason, in which he had a one thousand dollar Dominion of Canada bond, and a one hundred dollar United States Liberty bond. We are of the opinion that this evidence was sufficient to go to the jury in the issue whether or not appellant had property which he concealed and unjustly refused to apply to the payment of his debts. It is argued by the appellant that the evidence was wholly insufficient because the attempted concealment by appellant of his deposits in the Bank of Gulfport was not a success; that the truth was found out by appellee. We think appellant misconceives the meaning of the statute. It is only necessary, in order to sustain this ground of attachment, to show that the defendant concealed, or was guilty of conduct which was intended to and calculated to conceal, his property from his creditors.

This action was founded upon a judgment against appellant in favor of appellee rendered by a court of record in the state of Florida. By one of his pleas the appellant invoked section 3304, Code 1906 (section 2468, Hemingway’s Code) which provides:

“All actions founded on-any judgment or decree rendered by any court of record without this state shall be brought within seven years after the rendition of such judgment or decree, and not after. But if the person against whom such judgment or decree was or shall be .rendered, was, or shall be at the time of the institution of the action, a resident of this state, such action, founded on such judgment or decree, shall be commenced within three years next after the rendition thereof, and not after.”

It will be observed that the plea does not allege that appellant was a citizen of Mississippi at the time of the institution of the suit in the state of Florida, in which the judgment sued on here was rendered. The plea, alleges that he was a citizen of the state of Mississippi when the present suit was begun in this state, and had been a citizen of Mississippi for three years prior thereto.

Appellee’s demurrer to this plea -was overruled on the ground that the plea should have alleged that appellant was a citizen of Mississippi at the time of the institution of the suit in the state of Florida in which the jhdgrnent sued on here was rendered. The limitation of three years in the statute has reference to residence in this state at the time of the institution of the action in which a foreign judgment was rendered. In other words, if the defendant was a nonresident of this state at the time of the rendition of the foreign judgment, the limitation is seven years, while, if at the time of the institution of the action in which the foreign judgment was rendered the defendant is a citizen of this state, the limitation of three years applies, running from the date of the rendition of the foreign judgment. The trial court committed no error in sustaining the demurrer to appellee’s said plea.

It follows from these views that the suggestion of error must be sustained, the former judgment of this court set aside, and the cause affirmed. Former opinion withdrawn.

Affirmed.