Smith v. Mulhern

Campbell, J., delivered the opinion of the court. The courts of Noxubee County had jurisdiction of the attachment. The fact that the defendant had effects in that county made it proper to sue out an attachment there, returnable to the proper court of that county, although the defendant resided in another county. Barnett v. Ring, 55 Miss. 97. It was improper to dismiss the case. If the defendant desired •to controvert the affidavit made by the plaintiff to obtain the attachment, his course was to plead in abatement, when an issue would have been made and tried as directed by the statute. Code 1871, § 1458, et seq. We have decided that a freeholder or householder must be sued in the county of his residence. Cain v. Simpson, 58 Miss. 521. But this applies to the suit b}r summons provided for by § 1305 of the Code, and not to attachments which are governed by a different law, which makes jurisdiction to depend, not on the residence of the defendant, but on the presence of his effects, against which the attachment may be directed. The law confers on the creditor of one who subjects himself to the extraordinary remedy by attachment the right to obtain this process in any county in which may be found any effects of the defendant subject to it. The presence of a debtor of the defendant who may be garnished is sufficient to confer jurisdiction of the attachment in which such debtor is garnished upon the proper court of the county of the residence of the garnishee. The statute has guarded the right of the defendant in an ordinary action by summons to be sued where it may be supposed it is convenient for him to defend; but in the extraordinary proceeding by attachment, the right of the creditor to seize the effects of his debtor is of paramount consideration, and therefore he is authorized to sue out his attachment where such effects are, without regard to the residence of the defendant in a particular county. The affidavit and bond required of the attaching creditor are intended as safeguards against abuse of the process of attachment, and a protection to the debtor against its wrongful employment; and for a wrongful suing out of an attachment, [594] the damages which may be awarded the defendant are designed as an indemnity to him, and experience proves that defendants generally find the damages awarded ample compensation for any wrong done them. Judgment reversed and cause remanded.