Maxey v. White

Campbell, J., delivered the opinion of the court. Maxey sued out an attachment for rent against E. E. White and H. White, which was levied on three bales of cotton, and about one thousand pounds of seed cotton in the patch, on the 15th of November, 1873. On the 17th of November, 1873, a bond was executed by E. E. White, with sureties, as prescribed by law for a tenant to replevy property distrained for rent; and a writ of replevin was issued by the circuit clerk, directed to the sheriff who had levied said attachment for rent, commanding him “ to restore the said three bales of cotton to the possession of the said E. E. White,” and to summon Maxey to appear at the next term of the Circuit Court of Lauderdale County on the third Monday in May, 1874, to answer said action of replevin. Upon this writ, the sheriff returned that he had restored to the possession of H. C. White, agent of E. E. White, said cotton, as directed by the writ, the 17th of November, 1873. On the 30th of November, 1874, E. E. White moved the Circuit Court aforesaid for leave to dismiss her action of replevin, because the property described in said writ of replevin had not been restored to her, and the return of the sheriff was false, as he still held the cotton, and because said writ was not against Maxey, but the sheriff, and no issue had been made up to try whether any rent was due Maxey, and no [83] answer or avowry had been filed setting up any demand for rent. This motion was sustained against the objection of Maxey, and he has prosecuted a writ of error to reverse said judgment. It was. the right of the plaintiff in replevin to dismiss her suit, without leave of court; and, of course, it was not error for the court to permit her to do what she could do without permission. The failure of the plaintiff in the writ of replevin to prosecute the same entitled Maxey to judgment against the obligors in the replevin bond, as upon an issue found against the principal. Code, § 1632. It seems surprising that Maxey objected to a dismissal of the writ of replevin, which was the only obstacle to the enforcement of his attachment for rent. The remedy of the tenant desiring to replevy the goods distrained for rent is to give bond, as prescribed by § 1630 of the Code, amended in 1872, Acts, 34, and obtain the writ of replevin, commanding a restoration of the goods to the plaintiff in the writ. At the return term, or before, the tenant, having replevied the goods, as aforesaid, should declare against the plaintiff in the attachment for the goods distrained and replevied ; and the landlord should answer this declaration by an avowry, in which his right to seize the goods distrained is asserted ; and this, in turn, should be answered by the plaintiff in the writ of replevin; and so on, until the mutual altercations of the parties to this suit result in an issue. The plaintiff in such writ of replevin becomes an actor, and must follow up his suit. By his writ he arrests the officer distraining goods from obeying the mandate of the attachment and the statute requiring the officer to give notice and sell the goods to make the money due the plaintiff in attachment; and he must assert his right in court to the goods distrained under the attachment, and restored to him by virtue of his writ of replevin, and thus tender an issue to the landlord, who must meet the issue, and show by what right he attached the goods. It is only in this way that the attachment for rent can be brought before the court; for it is not mesne process returnable to a court, but in the nature of final process, commanding the officer to seize and sell goods of the tenant, to pay the plaintiff’s demand for rent, unless bond for the payment of rent shall be given. Code, § 1621; Towns v. Boarman, [84] 23 Miss. 186. The statute, § 1632 of Code, speaks of the tenant who replevies as plaintiff in such writ, and declares, if he shall make default, or fail to prosecute his writ, judgment shall be entered against him and the sureties -on his bond, as upon an issue found against him. It is not necessary to consider the particular grounds of the motion of the tenant to dismiss her writ of replevin, as she had the right to dismiss, if she pleased. But, for the better understanding of such matters in future, we remark that, if the return of the sheriff that he had restored the cotton to the plaintiff in the writ was false, she had her remedy; and, if it was true, a judgment on her bond, as provided by statute, upon her failure to prosecute her writ, would have been but just to the landlord. As to the ground stated in the motion, that the writ was not against Maxey, but the sheriff, as we have stated, that was correct. The object of the writ is restoration of the property distrained; and it is properly a command to the officer having the goods in custody to restore them to the plaintiff in the writ. That no issue had been made up, seems, from the record, to have been the fault of the plaintiff in the writ of replevin ; and there was no avowry or answer demanding rent, because there was no declaration in replevin for the goods which had been distrained. Finally, the writ of replevin in such cases is not the writ provided for in the general action of replevin, and not guilty is not a proper plea to it. The writ is the special one provided by § 1630 of the Code, and to be proceeded with, as hereinbefore indicated. We have been thus particular, because of a misunderstanding by some of the legal profession of the subject under consideration. The judgment dismissing the writ of replevin is affirmed.