First National Bank v. Fain Grocery Co.

Truly, J\, delivered the opinion of the 'court. It was error in the court below to dismiss the appeal of the claimant, appellant here. The interpleader of the appellant, under Code 1892, § 2143, was proper. It would also have been proper practice, under sec. 2144, to have, required the claim to the.money in question to have been propounded “in writing under oath.” In default of the affidavit required, the plaintiff in attachment might very properly have availed itself of this defect by motion to dismiss. ' But it appears by the judgment of the justice of the peace that an issue was made up between the plaintiff and the claimant, with full knowledge and without objection, although the claim propounded by appellant to the money was made orally. The form in which the claim to the property in controversy is propounded is not jurisdictional. In the justice’s court it is a matter of procedure merely, and may be waived by the parties or amended upon appeal, under Code 1892, § 717, so as to bring the merits of the controversy fairly to trial. Canty v. Wood (Miss.), 38 South. Rep., 315. Reversed and remanded.