44 Miss. 693 | Miss. | 1870
In 1860, W. E. Dancey filed his affidavit and bond in attachment against Fleta Y. Jeffries. A. writ of attachment was issued and levied upon a slave named Emily, and her two children. This property was replevied by defendant in attachment, and bond given.
The above attachment was issued upon the ground that the defendant therein was about to remove her property from the state, and to recover the sum of one hundred and eighty-eight dollars and seventy cents.
No steps appear to have been taken in the above cause until 1868, when Dancey made an affidavit that in 1860, he obtained the foregoing attachment, which was still pending; that the defendant therein had become a non-resident of the state, and prayed for an alias writ of attachment.
Upon this affidavit, another attachment was issued, declared in the body thereof, to be an alias, upon which the sheriff attached the real estate of the said defendant. Upon the return of this second (alias) attachment, the plaintiff filed his declaration in the suit, claiming to recover for the goods, wares, merchandise, etc., a bill of which was filed in 1860, with the issuing of the first attachment,
The alias writ was issued March 12th, 1868. The clerk ordered publication of notice to defendant March 6, 1868. At the September term, 1868 of the Madison county circuit court, upon proof of publication, judgment was rendered against defendant, and the l’eal estate levied upon was ordered to be sold. In October, 1868, a writ of error with supersedeas, was granted to the defendant in the court below. A reversal of the judgment is asked upon the following assignment of errors:
1st. There was no bond upon which the second attachment
2d. There was no notice given to the plaintiff in error, of the pendency of the second attachment against her.
Art. 13, p. 377, Rev. Code, provides for auxilliary attachments in aid of pending suits, but is not conceived to have any application to the case at bar. If it has, the proceedings of the plaintiff in this attachment are fatally erroneous in not executing and filing a bond as required by said article.
Art. 16, p. 378, Rev. Code, provides for alias, or duplicate writs, and is as follows : “ The officer granting an attachment may issue duplicate writs to any other county in which the defendant may have property or debts due him, which writs shall be returnable to the court to which the original is returnable, and shall be executed and returned in like manner, and when the attachment has not been executed, or when no property has been found, or not sufficient to satisfy the debt, or when the plaintiff desires to garnishee other persons, the clerk of the court to which the same is returnable may issue alias writs, to the same or other counties, without a renewal of the bond or affidavit.”
It will be observed that under this article an alias attachment may issue, without bond or affidavit: 1st. When the attachment has not been executed ; 2d. When no property has been found; 3d. When the property seized is insufficient to pay the debt; 4th. When the plaintiff desires to garnishee other persons.
In the case at bar the plaintiff did not proceed on any of the grounds authorizing an alias attachment, but for an entirely different cause, to-wit: the non-residence of the defendant, and took judgment upon the alias, and not upon the 'original attachment, as he should have done in conforming to this statute.
Regarding this as an original proceeding, it is erroneous in several material particulars : 1st. The plaintiff should have given the residence of the defendant; 2d. There should have been a bond ; 3d. Proof of service of notice of pendency of
While in one aspect it would be a hardship for the creditor in this case to lose his debt, yet he is chargeable with serious laches. The original attachment was levied in 1860 upon property valued at two thousand dollars, to secure a debt less than two hundred dollars. From 1860 to 1868 the creditor took no steps to enforce the collection of his debt. In the course adopted there are fatal errors. Whether, if the plaintiff in the attachment had procured an alias or duplicate writ upon so much of art. 16, abové quoted, as allows a duplicate when the property levied upon is not sufficient to satisfy the dedt, he would have been regular, we will not now determine, nor will we express an opinion whether the creditor’s rights are protected by the doctrine, of a motion, but leave him to his own option and judgment as to the course for him to pursue in the further prosecution of his claim.
The judgment is reversed, without prejudice to the original proceedings of plaintiff in attachment, or to his further prosecution of the same, in the mode in his judgment best calculated to secure his debt.
Let the judgment in the second attachment be reversed, and the cause remanded.
