Yazoo Delta Mortgage Co. v. Hutson

106 So. 5 | Miss. | 1925

^* Headnotes 1. Appeal and Error, 4 C.J., Section 3179 (Anno); 2. Sequestration, 35 Cyc., p. 1395 (Anno). This is an appeal to settle the principles of the case from a decree overruling both a demurrer to an original bill and a motion to quash a writ of sequestration.

The appellee was the complainant in the court below, and in his bill of complaint alleges that the appellant, who is the defendant therein, owes him the sum of two hundred thirty-eight dollars and sixty-five cents; that it is a corporation in process of liquidation, and is about to sell the only property it owns in Humphreys county, and prays for a writ of sequestration directing the sheriff to seize and hold the said property so that it may be subjected to the payment of the complainant's debt. The facts relative to the filing of the bill and the issuance of the writ of sequestration are set forth in the following agreement of counsel:

"It is agreed by and between the attorneys in this cause that on the 21st day of February, 1925, an affidavit and bond for a writ of sequestration were executed and filed with the clerk of this court, with the statement that the bill of complaint was being prepared and would be properly sworn to and filed immediately. Thereupon the clerk issued a writ of sequestration which was by the sheriff served on the defendant, and the bill of complaint herein was filed later, possibly an hour or an hour and a half, thereafter on the same day, to wit, the 21st day of February, 1925."

The ground of the demurrer to the bill of complaint is that the cause of action sued on is one cognizant only in a court of law; but, since the court below assumed jurisdiction thereof, its act in so doing cannot here be considered, under section 147 of the Constitution.

One of the grounds of the motion to quash the writ of sequestration is that it was not issued in a pending cause. The issuance of writs of sequestration are governed by sections 562 et seq., Code of 1906 (sections 322 et seq., Hemingway's Code), the first of which is as follows:

"When a bill is filed in the chancery court in reference to personal property, and affidavit and bond as required therefor is made and filed, the clerk of the court shall issue a writ of sequestration."

The power of a chancery court under this section is limited to the issuance of a writ of sequestration in a pending cause in which the bill of complaint is in reference to personal property. Consequently, such a writ, issued when no cause is pending or wherein the bill is not of the required character, is irregular, if not void. If authority for so holding be desired, it may be found in the holdings of this court on the appointment of a receiver, which question is analogous hereto. Bank v. Hardy,94 Miss. 587, 48 So. 731, and authorities there cited.

The decree will be affirmed in so far as it overrules the demurrer, but reversed in so far as it overrules the motion to quash the writ of sequestration.

Reversed and remanded.