Meridian Fertilizer Factory v. Bush

Terral, J., delivered tlie opinion of tlie court. The appellant sued out- an attachment writ on a debt not due, before the circuit clerk of Lauderdale county, returnable before the circuit court of Noxubee county. The chief ground of the attachment was that defendant, Edwards, had assigned his property with intent to defraud his creditors. Edwards contested the grounds of the attachment, and the issue was found against him, and a final judgment was also rendered against him for the debt due plaintiff. The claimants also presented an issue alleging the property levied on to be their property. Upon the trial of this issue the plaintiff in attachment offered to introduce in evidence the mercantile books of Edwards to show the number and amounts due from him to his various creditors, and this evidence was rejected by the court. The evidence showed that the claim' ants bo-ught of the defendant two stocks of goods, costing at invoice prices more than $8,000, at less than one-half of the cost price; that they paid no money, nor passed any acquit-tances to the defendant in attachment for their claims; that one of the claimants, being the third one in amount, operated an adjoining store to that of the defendant at Shuqualak wrote confidentially to the claimant holding the largest debt to come up on a certain day prepared to do some trading; that two of these claimants were, or had been, clerks of Edwards; that two of the creditors of Edwards, holding the first and third in the amount of their claims, practically made the purchase without consultation with the other claimants; that Edwards had operated his store at Wohalac less than four months from its establishment, and within a month of opening it he began to sell goods at less than cost; that he bought fer~ tilizer ahead of the regular season for buying it, and immediately sold it at less than the cost price, etc., and many other facts which made it necessary to leave the issue, as we think, to the decision of the jury, and yet the court peremp [701] torily directed tbe jury to find tbe issue for tbe claimants. Without reciting tbe evidence, or passing upon its weight, as it must be tried anew, it is sufficient to say that, in our opinion, tbe plaintiff in attachment should have been permitted to place its contention before the jury, free from any opinion of tbe court in tbe premises. It is said, however, that tbe attachment writ issued by the clerk of the circuit court of Lauderdale county is void. We think not. Section 129, annotated code, provides, among other things, that the affidavit for an attachment writ may be taken before a clerk of the circuit court, and the last clause of § 130 makes it the duty of the officer taking the affidavit and bond to return the same to the court to which the attachment is returnable. And the' fair, direct and necessary implication from these provisions is that the officer taking the affidavit may also approve the bond and issue the writ of attachment. The Act of March 23, 1896, superseding § 142 of the code, provides that an attachment for a debt not due shall be issued, executed and returned as in other cases of attachment (Laws 1896, p. 104). The books of tbe defendant, Edwards, through whom the claimants derive title to the stock of goods levied upon, were admissible in evidence, at least to show what other persons were creditors of Edwards, and in what amounts they were such creditors. Reversed and remanded.