Turner v. Lilly

Chalmees, J., delivered the opinion of the court. The trust-deed, by which the legal title to the cotton in •controversy was conveyed to the plaintiff below, was executed in justice’s district No. 1. The debtor who executed it resided then, and at the time of suit brought, in district No. 2. The •cotton also was grown, and was situated when the replevin [578] writ was sued out, in district No. 2. Could the suit, under •■'these circumstances, be brought in district No. 1, upon the ground that ‘4 the debt was contracted or liability incurred ’ ’ in that district? Ordinarily, every householder or freeholder must, in the justice’s court, be sued in the district in which he resides. The exceptions are, that he may also be sued “in the district where the debt was contracted,'the liability incurred, or in which the property may be found.” Code 1871, sect. 1303. The meaning of this is, that the defendant may always be sued in the district in which he resides; but, if sued elsewhere, that the plaintiff must show that the debt sued on was contracted in the district where the suit is brought, and that it is an action to recover a debt; or that the liability was there incurred, and that it is an action sounding in damages, as for a tort or trespass, whereby 44 the liability was incurred;” or that it is a proceeding in rem, and the property has been found in that district. One of three things must, therefore, have occurred in the district where suit is brought, if it be not the district of the defendant’s residence, in order to maintain the action, — to wit, the contracting of the debt sued on, the incurring of the liability to damages, or the presence of the property sought to be reached. The action of replevin, being a proceeding in rem, must be brought either where the defendant resides or where the property is found. Not having been so brought in this case, it was properly dismissed. Judgment affirmed.