White v. Roach

53 So. 622 | Miss. | 1910

Anderson, J.,

after stating the facts as above, delivered the opinion of the court.

The ground on which the court below rendered judgment against appellant was that he failed to join issue on appellee’s tender at the return term of the attachment, Section 163, Code 1906, is as follows: “All the provisions of law in relation to third persons claiming property levied on by virtue of fieri facias shall extend and apply to claimants of property levied on by virtue of writs of attachment, The trial of the right of property shall not be had until after judgment in favor of the plaintiff in the attachment suit, and proceedings in garnishment shall be in accordance with the provisions-of law on that subject.” The provisions of law in relation to third persons claiming property levied on by fieri facias are contained in Code 1906, ch. 144, §§ 4990 to 5001, inclusive; and under section 4992, where there is a claimant’s affidavit, the plaintiff in execution is required to make a motion “to direct an issue to be made up between the parties to try the right of property at the same term, unless good cause be shown for a continuance;” and section 4093 provides that, if by default of the plaintiff an issue to try the right of property is not made up at the return term, the claimant shall be discharged, and the property thereafter not subject to the execution, and if the claimant fails to join issue at the first term when tendered, “the court, at the instance of the plaintiff in execution, shall order a writ of inquiry as to the value of the property,” etc. Construing these two sections, as applied to the claim of a third person to property levied on by execution, this court held in Bedford v. Adams, 93 Miss. 537, 47 South. 429, that the issue must be made up at the return term, and not- afterward, and the party in default, whether plaintiff or claimant, is cast in the suit. The evident purpose of the statute is to provide, as far as practicable, for the disposal of the claimant’s issue at the return term of the execution. Final judgment having been rendered in the main case, such issue is all there is left to try.

It is contended that the statute applies with equal ■force to the claimant’s issue in attachment suits, and under like conditions the same result will follow. Such a construction, however, is without foundation in reason. Section 163 provides that the claimant’s issue shall not be tried until after final judgment in favor of the plaintiff in attachment. Then why make up the issue at the first term of court? It may never be tried; for, if the plaintiff fails either on the attachment or debt issue, that is the end of the matter. Why require the claimant to attend court with his witnesses from term to term, when the trial of the issue depends entirely on the result of the main suit? Statutes must be given a reasonable construction, unless in so doing their plain provisions are violated. Our judgment is that the word “trial,” in the last clause of section 163, is used in its comprehensive sense, and means, not alone that the claimant’s issue shall not be tried until final judgment in the main case, but that such* issue is not to be made up until then; the making up of the issue being a part of the “trial” in the broad meaning of the word. The claimant, at his peril, must watch the progress of the main ease, and when final judgment is rendered be ready to join issue on plaintiff’s tender, which may not be made until then, so the trial of it may proceed.

It may he remarked, by the way, that the contention of appellee, if sound, would put him first in default for a failure to make the motion, at the return term,, required by section 4992.

Reversed and remanded„