West Point Motor Car Co. v. McGhee

84 So. 690 | Miss. | 1920

Cook, J.,

delivered the opinion of the court.

This action was instituted in the court of a justice of the peace in Clay county. The West Point Motor Car Company filed its statement of account, which consisted of items of repairs and material furnished by it and used in said repairs of a certain Saxon roadster automobile then located in West P'oint, Miss., within the jurisdiction of the justice of the peace. The justice of the peace issued a writ of seizure, and the sheriff of Clay county executed the writ by seizing the automobile and by personal service upon the owner of same. The owner of the automobile executed and delivered to the sheriff a forthcoming bond, and the machine was delivered to him. On the return day of the writ the defendant appeared and filed a motion to dismiss upon the grounds that he was a resident freeholder of Alcorn county, and for this reason the justice of the peace had no jurisdiction of the case. This motion was overruled. The case then proceeded to judgment against Mr. McGhee and the sureties on his bond for the full amount of the account. M'cGhee appealed to the circuit court. The circuit court, upon the motion of the defendant, dismissed the suit upon the ground that, the defendant being a resident freeholder of Alcorn county, the court had no jurisdiction of the case.

Section 3075, Code of 3906 (section 2435-, Hemingway’s Code), in the last sentence provides the remedy in this case. It appears that the Motor Car Company had parted with the possession of the machine, and, that being true, we think that sections 30801 and 3081, Code of 1906 (sections 2437 and 2438, Hemingway’s Code), come into play.

The procedure adopted in this case was strictly in accordance with the terms of the statutes of the state, and the fact that the defendant was a resident freeholder of another county did not deprive the justice of the peace of jurisdiction of the case.- The procedure is provided by the statutes, and is directed against the thing, upon which the repairs were made, and, this thing being within the jurisdiction of the justice of the peace issuing the writ, the statutes came into play, and provided the machinery for the enforcement of the lien. It makes no difference whether the statutory procedure is an action in rem or quasi in rem, the result is the same.

The remedy provided for in cases of this kind is similar to the ordinary writ of attachment, the difference being that the attachment writ may be levied upon any property not exempt, while in this case a particular thing must be seized. In both cases the residence of the debtor does not affect the jurisdiction of the court.

Reversed and remanded.