Hauser v. Robbins

61 Miss. 551 | Miss. | 1884

Cooper, J.,

delivered the opinion of the court.

The court rightly refused to direct a transfer of the cause from the Circuit Court of Warren County to that of Sharkey County. Section 1312 of the Code of 1880 provides for a return by the officer executing a writ of distress of the replevin bond if given by the tenant to the justice of the peace by whom the writ was issued. If either the amount of the rent demanded or the value of the property seized exceeds one hundred and fifty dollars, then the bond is to be returned to the circuit court. The circuit court meant is evidently that sitting in the county in Avhich the writ was issued by the justice.

The laws of 1882, page 144, give to the officer issuing the writ of attachment power to issue alias writs to other counties, but it was never contemplated that the various writs which might be issued should each be returned to a different court. The whole proceedings constitute but one suit and that is triable in the county in which the proceedings are instituted.

The court erred in striking from the files the plea of the plaintiff traversing the ground for suing out the attachment. The matter therein set up was an answer (or intended to be) to the avowry of the defendant, and it was stricken out not because of defect in form but because it presented an issue which the court was of opinion could not be made in the case.

The issue presented was that the landlord had not lawful cause to sue out the writ, and this issue the tenant had the right to propound and try. It was in bar of the avowry, and its decision in favor of the tenant would have entitled him to retain the property replevied and to recover damages on the bond executed by the landlord. Kyser v. Middleton, ante.

Judgment reversed.