Cantrell v. Letwinger

Tarbell, J.: In March, 1868, Letwinger sued out a writ of attachment against Cantrell, returnable to the circuit court of Copiah county, at the April term thereof then next, for the recovery of the sum of one hundred and twenty dollars. Judgment was obtained against defendant, in attachment by default, and the latter now asks this court to reverse the judgment, on the grounds that the judgment is erroneous, because of [439] the insufficiency of the affidavit upon which the attachment was issued, and for defects in the sheriff’s return of service. The material portions of the affidavit are as follows: “ C. Letwinger, being duly sworn, says that C. B. Cantrell is justly indebted to him, the said 0. Letwinger, in the sum of one hundred and twenty dollars, or thereabouts, on a note indorsed to C. Letwinger, and one other note payable to E. N. Atwell, and by him indorsed to C. Letwinger; that he is a non-resident pf the state of Mississippi. He therefore prays an attachment may issue against saidO. B. Cantrell;” which was subscribed and sworn to by C. Letwinger, March 13,1868. Bond and security having been given, an attachment was issued returnable to the then next term of the circuit court of Copiah comity, to be held on the second Monday of April, 1868. Upon the writ the sheriff made the following return: “ Levied the within attachment on the following lands, to-wit: Commencing on the Jackson and Gallatin road, at the northeast corner of lot formerly occupied by W. E. Shamberger, in the town of Crystal Springs, Mississippi, running north 90 feet more .or less to a gate-post; thence west 150 yards more or less to the lot formerly owned by E. M. Lowe; thence south 100 feet more or less; thence east to commencement; containing one acre niore or less; in section 25, township 2, range 2, west, Copiah county, Mississippi; March 28,1868; as 'the property of defendant, 0. B. Cantrell. ” Upon this return and upon proof of publication of notice to the defendant as absent or non-resident, there being no plea nor appearance in his behalf, a judgment by default, in favor of plaintiff against defendant, was entered for the sum of one hundred and thirty-eight dollars and twenty-five cents, besides costs. The first publication of notice to defendant, was made on March 21st, by direction of the clerk. By the return of the sheriff, the attachment was executed March 28th, April term of the Copiah county circuit was begun on the second Monday, the 13 th day of April, 1868. The last publication of notice to defendant was made April 11th, 1868. Proof of publication was made April 13th, and judgment by [440] default May 4, 1868, during said April term. The affidavit for the attachment claims that there was due to plaintiff the sum of “ one hundred and twenty dollars or thereabouts.” The attachment and bond recite the amount due" at one hundred and twenty dollars, while the declaration describes the note sued on without stating or claiming any definite sum. Writ of error was allowed in December, 1868. It is questionable whether there are not several errors in this proceeding, other than those presented by counsel, and more than questionable, whether the publication authorized the judgment at the said April term. Vide art. 19, p. 378, Rev. Code; 40 Miss., 11; 41 ib., 563. We shall confine ourselves, however, to a decision of such questions as are raised and discussed in the papers and record before us. 1st. The grounds authorizing the issuance of an attachment are contained in art. 2 Rev. Code, 372. For whichever cause this process is sought, the reason or facts upon which it is asked, must clearly and affirmatively appear. Manchester v. Ullman, 10 S. & M., 414. One of the particulars, which being stated by affidavit, authorizes the proper officer to issue this writ, is the non-residence of the defendant debtor. In this instance, the affidavit, whether construed gramatically or according to the common and ordinary use of language, avers the non-residence of the creditor plaintiff, and not of the debtor defendant. This is very likely an inadvertence, and were the affidavit correct, and the error in a subsequent proceeding, we should, if warranted by the whole record, disregard the mistake, if such it is (Lovelady v. Harkins, 6 S. & M., 415), but the affidavit is the basis of the whole proceeding, and of jurisdiction. “ The remedy by attachment is out of the ordinary course of proceedings ; and was designed to be applied only in the cases of emergency specified in the statute. Every requisition of the statute must hence be strictly complied with, or the proceeding will be irregular and void.” Hopkins & Smith v. Grissom, 26 Miss., 145. The most ample power of amendment in this class of cases is given by statute, which power [441] ought to be liberally used, but in this condition of the case this statute cannot be applied. The affidavit does not state either of the particulars specified in Rev. Code, 372, art. 2, nor the residence of defendant as required by the law approved January 15, 1862, and is fatally defective. 2d. The sheriff’s return shows that the land attached was within the town of Crystal Springs, but it does not state whether the land was occupied or not. Were this the only point in the case, we might indulge in behalf of a sworn officer, the presumption of a correct performance of his duty, in order to sustain the judgment. As this cause, however, must be remanded on other grounds, we waive a decision of this point, with the remark that the return is defective in omitting material facts necessary to enable the court to determine whether the sheriff proceeded according to law. As to the publication, Rev. Code, 473, arts. 4, 6 ; ib., 378, art. 19; ib., 488, art. 62; ib., 503, art. 150; Griffing v. Mills, 40 Miss., 611; Crozier and wife v. Gorren, 41 Miss., 563. As to the levy and return, Rev. Code, 374, art. 7; ib., 589, arts. 63, 64; Merritt v. White, 37 Miss., 439; Crozier v. Gorren, 41 Miss., 564; Bias et al. v. Vance, 32 Miss., 200. The judgment is reversed and cause remanded.