65 Miss. 276 | Miss. | 1887
delivered the opinion of the Court.
It is not denied that the Mayor of Port Gibson was also a justice of the peace of Claiborne County, or that the preliminary complaint on oath, necessary for the issuance of an attachment for rent, could not properly be made before him; but it is insisted that as the jurisdiction of a justice of the peace is confined generally to the territory of his district, it was not lawful for the Mayor, as justice of the peace, to issue the writ, to run beyond the corporate limits of the town in which he was elected.
This position cannot be maintained. The Mayor, as justice of the peace, had the same power and authority in the premises, which any other justice of the peace of the county had. It is the express provision of Section 1302 of the Code, that in proceedings for the collection of rent, complaint may be made before any justice of the peace of the county, in which the lands or tenements are situated, and that, upon bond and security being given, such justice shall issue an attachment. The jurisdiction of justices of the peace, under Section 1302 of the Code, is independent of that conferred upon them by other provisions of the Code, and is not restricted by such provisions or the amendments thereto. A writ of attachment for rent, issued by a justice of the peace, may he executed in any part of his county, without reference to the district in which he was elected, or to the district in which the tenant may reside, or to the district in which the leased premises may be located, or to any other consideration.
If the claim of the landlord is disputed by the tenant, or if the property seized is claimed by a third person, it may be replevied by either; and in either case the writ and bond are required to be returned, either to the circuit court, or to the magistrate who issued the writ, if the amount of the rent claimed and the value of the property levied on is within his jurisdiction. When the property levied on is thus replevied, the proceeding becomes for the first time a suit. A suit is then and there commenced by the party replevying, in which he is plaintiff,'and the landlord is defendant; followed by notice being given to the defendant, and by a declaration being filed by the plaintiff, if the controversy is carried to the circuit court; to which the plaintiff pleads by denying the taking of the property or by an avowry; and the pleadings, so begun, are continued until the parties are at issue. If the writ of attachment and replevy bond are returned to the justice who issued the writ, the suit is conducted in the same manner as in the circuit court, except that written pleadings are dispensed with or are not required.
We observe that the general issue pleaded by appellant to the declaration was improper. Unless he denied the taking of the goods, he should have answered by an avowry, alleging his right to seize the goods, and setting forth the attachment, and justifying his action thereunder. Code, Sec. 1358 ; Dudley v.
The judgment quashing the affidavit and writ of attachment was erroneous, and the judgment is reversed and the cause remanded.
