Farrand Co. v. Huston

Smith, C. J. delivered the opinion of the court. (After stating the facts as above.) The court below committed no error in overruling the claimant’s motion for the discharge of its bond. It is true that section 4992 of the Code provides that: “Upon the return of the execution with the affidavit and bond, if any, the court shall, on motion of the plaintiff, in execution, direct an issue to be made up between the parties to try the right of property at the same term, unless good cause be shown for a continuance. ’ ’ —but an issue of this character presupposes a valid affidavit; and we do not understand the statute to require the trial of such an issue when no valid affidavit has been tiled setting forth the claim of a third person to the property levied on. If the validity of the affidavit is challenged, an issue is presented which must of necessity be tried by the court before the right of property can be tried. The statute must be given a reasonable construction as was done in White v. Roach, 98 Miss. 309, 53 So. 622, and, so construed, it seems to us necessarily to follow that the court below committed no error in holding that the plaintiff in execution was not in default in not causing an issue to be made up to try the right of property while his motion to quash remained undisposed of. The motion to quash, however, should have been overruled for the affidavit, according to the evidence, was not made on Sunday, And though Hunter may not have been authorized to make the affidavit, the claimant had full power to ratify and adopt it. Reversed and remanded.