Opinion
No. 38777.
May 18, 1953.
1. Attachment — bond — necessity of.
Execution and approval of bond are essential to a valid attachment at law. Sec. 2680, Code 1942.
2. Attachment — void attachment — trial — peremptory charge.
Where attachment was void and there was a material conflict in the testimony as to whether the defendant was or was not liable for the debt it was error to grant to plaintiff a peremptory charge on both the attachment and debt issues.
Headnotes as approved by Roberds, P.J.
APPEAL from the circuit court of Jasper County; HOMER CURRIE, Judge.
J.M. Travis, for appellant.
I. The court below did not have jurisdiction of the cause as against Mrs. N.L. Williams.
This case originally started by an action filed by the appellee, S.F. Thigpen, Jr., against N.L. Williams by the filing of an affidavit on October 5, 1950, by writ of attachment filed on October 24, 1950, upon bond in the sum of $1,463.44 payable to N.L. Williams. Thereafter the appellee filed a declaration in the circuit court of the First Judicial District of Jasper County, Mississippi, and for the first time brought in this case Mrs. N.L. Williams as a party-defendant. The declaration filed had as exhibits to the declaration the affidavit for the attachment against N.L. Williams and the writ of attachment against N.L. Williams and the return of the officer on the attachment as against N.L. Williams. The itemized statement as filed was against Mr. and Mrs. N.L. Williams. The appellant shows that no proper affidavit was filed in said cause for the issuance of any writ of attachment as against Mrs. N.L. Williams.
No bond of any kind was ever executed and filed with the clerk of the court for any writ of attachment to issue against the estate of Mrs. N.L. Williams, but a writ of attachment was issued by the clerk of the court against the estate of Mrs. N.L. Williams. This writ of attachment recites bond and security having been given according to the statute, which statement in the writ is in error because the only bond executed and filed in this cause was the bond filed by appellee against N.L. Williams. See Secs. 2679, 2680, Code 1942.
And appellant submits that the court in this case failed to acquire any jurisdiction of either the debt or the attachment issue. And that the proceedings in this case are null and void and of no force and effect. O.M. Oates, for appellee.
I. Can appellant be held liable for supplies furnished her by appellee under a contract made by her with appellee on her own farm in a joint endeavor between appellant and her husband in chicken production business on her individual farm where the newly wed husband was not known in the contract and had no interest in the farm except as a husband? Sec. 451, Code 1942; Sec. 94, Const. 1890; Rivers v. Wade Hardware Co., (Miss.), 117 So. 259; McLemore v. Riley Hospital, (Miss.), 20 So.2d 67; 41 C.J.S. 531, Sec. 63.
II. Can fleeing debtors out of the state to another state, leaving creditors stranded, evade jurisdiction of this Court under a suit of attachment against a truck, where personal writ was served on the husband and bond given by him and his wife, the appellant, has property in or equity in property in the state and she is served with process, by publication, enters her appearance, joins issue as to liability and presents her proof on a past due indebtedness at time suit was filed, lose her case and then claim there is no jurisdiction? Terry v. Curd Mfg. Co., 66 Miss. 394, 6 So. 229.
Mr. Thigpen sued out a nonresident attachment against local lands of Mrs. Williams. The debt liability, according to the declaration, was the purchase by Mrs. Williams of, and her promise to pay for, specified goods, wares and merchandise, aggregating the sum of $731.72.
The trial court directed the jury to find for Mr. Thigpen on both the debt and attachment issues. That was done and judgment entered accordingly. From that action Mrs. Williams appeals.
No bond was executed at any time as a part of the attachment proceedings. (Hn 1) Execution and approval of bond were essential to a valid attachment in the circuit court. Section 2680, Miss. Code 1942; Ford v. Hurd, 7 Miss. 683 (4 S. M. 683); 7 C.J.S. 326, Sec. 145.
(Hn 2) The court erred in directing the jury to find for plaintiff on the debt and attachment issues. As shown, the attachment was void. There was a material conflict in the testimony as to whether Mrs. Williams was, or was not, personally liable for the debt.
Appellant says the court erred in receiving oral testimony as to the correctness of the items aggregating the amount for which suit was brought. She says the evidence discloses that books of original entry of the charges and credits were in existence and they should have been produced. Objection was made to some of such testimony, but some of it went in without objection. We do not pass upon the question because it may not arise on another trial.
Reversed and remanded.
Kyle, Holmes, Ethridge and Lotterhos, JJ., concur.