Slattery v. P. L. Renoudet Lumber Co., No. 20825

No. 20825 | Miss. | Mar 15, 1919

Smith, C. J.,

delivered the opinion of the court.

This, is an attachment in chancery, and the appeal' is from a decree ordering the cancellation of a lis pendens notice. :

The appellant exhibited an original bill in the court below against the Southwestern Lumber & Box Company, which will be hereinafter styled the box company, and P. L. Renoudet Lumber Company, which will hereinafter be styled the lumber company, alleging in substance that he was employed by the box company to sell 'certain land therein described and which was owned by it; that pursuant to his efforts the box company sold-the land to the lumber company and became thereby indebted to him in the sum of ten thousand dollars, which it declines to pay; tha,t both' of the defendants are foreign corporations, the lumber company “having a representative in the county of Adams, state of Mississippi, upon whom process can be served. ’ ’

The sixth paragraph of the bill and the' prayer thereof are in the following language:

“That complainant is advised that the said lumber company is in the state of Mississippi and has property of the box company in its possession, and that complainant is entitled to a writ of attachment against said lumber company to subject in its hands said property, and furthermore, complainant avers that, as it is ad-, vised, said box company still continues to be the owner of said land, or of some interest therein, as to which complainant prays discovery, and that complainant is entitled to an attachment against said lands for the enforcement of its said demand, said box company being now and always having been nonresident from the state of Mississippi. Wherefore, the premises considered, complainant prays that said parties named in the caption hereof may be made parties defendant hereto, and that they be required to plead,i answer or demur, but answer under oath is expressly waived, and that upon final hearing a decree be rendered herein in favor of this complainant against said box company for the amount of ten thousand dollars, atid that an attachment issue in accordance with the chancery practice, both against said lumber company and against said land, to subject the same to the indebtedness of this complainant by said box company for the amount aforesaid; and for such other, further and general relief as in equity and good conscience may seem meet; and as in duty bound, etc. ’ ’

Upon the filing of this bill, a writ of attachment was issued commanding the officer to' whom it was - addressed to “attach the Southwestern Lumber & Box Company by its real estate,” etc., and the return of the officer thereon shows that it was levied ‘‘‘upon the unoccupied lands of the defendant,” describing the land as in tlie hill. The record contains no writ or summonds for the lumber company, hut one seems to have been issued and returned executed, for on motion of the .sheriff he was permitted to amend this return so as to show that the lumber company was not found in his county after diligent search and inquiry. A lis pendens notice was filed pursuant to section 3148, Code of 1906, section 2499, Hemingway’s Code. The box company has not yet ap-péared in the court below, but the lumber company appeared and filed a demurrer to the bill, which demurrer was overruled, and thereupon it 'filed an answer admitting that it purchased the land, but denying that it purchased it through the appellant; that the box company owned any interest therein; that it is indebted to the box company or knows of any person who owes it or has property belonging to it in its possession.

After the filing of this answer and on motion filed by it, the lumber company was discharged and the bill was dismissed as to it by a decree reciting that: “This cause coming on to be heard in vacation by agreement on the motion of P. L. Eenoudet Lumber Company, garnishee, in the above-entitled cause to discharge it upon its answer theretofore filed, denying any indebtedness to the principal defendant, and also denying that it had any property of any kind or character in its possession belonging to the principal defendant, and the court having heard the argument of counsel in vacation, upon the motion so made at the regular July term of said court, when said answer was filed, and it appearing unto the court that the P. L. Eenoudet Lumber Company, garnishee, filed its answer as required by law, and that it denied that it was indebted to the principal defendant or had any property or effects of the defendant in its possession or under its control, and otherwise answered as required by law, and it further appearing to the court that said answer was in no way contested or controverted by the complainant herein, and the court having taken the matter under advisement, and being now fully advised in the premises, doth order, adjudge and decree that • said motion of the garnishee he and the same is hereby sustained, and the said garnishee, P. L. Renoudet Lumber Company, Ltd., be and it is hereby discharged, and said bill of complaint is dismissed as to the garnishee defendant.”

At the succeeding term of the court the appellant was allowed to amend the sixth paragraph of his bill without prejudice to the lumber company so as to make it read as follows:

‘ ‘ Complinant avers that said box company still continues to be the owner of said lands, and that complainant is entitled to an attachment against said lands for the enforcement of his said demand, said box company being now and at all times a nonresident of the state of Mississippi.”

At this term of court, on motion of the lumber company an order was also entered directing the clerk to cancel the lis pendens notice, from which order an appeal was granted to this court to settle the principals of the case.

Under section 536, Code of 1906, section 293, Hemingway’s Code, an attachment will lie in chancery against a nonresident debtor who owns land in this state or against such a debtor whether he owns land in this state or not, where a person in this state who has in his hands effects of, or is indebted to, such nonresident debtor, can be joined with him as a codefendant, and the procedure in such cases is that of ordinary suits in equity and not that of actions at law.

The bill here under consideration, while inartificially drawn, proceeds on the theory that the complainant is entitled to an attachment on both of the foregoing grounds, for it alléges that the box company owns the land or an interest therein and also that the lumber company has in its possession property belonging to the box company. The dismissal of the bill as to the lumber company left it still pending as to the box company, so that the lis pendens notice should not be canceled, but should remain in force until that branch of the case is determined adversely to the appellant.

We are not here concerned with the cause of action attempted to be stated in the bill against the lumber company, nor with error vel non in the decree dismissing the bill as to it; no questions relative thereto being presented to us by this record.

Reversed and remanded.