McCormick v. Hawks

Cook, J., delivered the opinion of the court. The appellant, .A. L. McCormick, instituted an attachment suit in the circuit court of Tate county against B, F. Hawks, appellee. He alleged various grounds of attachment, one of which was that appellee was a nonresident of the state, and, upon the trial of the issue raised by plea in abatement traversing the affidavit for attachment, the jury found that the attachment had been wrongfully sued out, and assessed damages. Thereupon appel [117] lee filed a motion to dismiss the canse, on the ground that the circuit court of Tate county" was without jurisdiction to hear the cause on the merits or proceed. further, for the reason that the defendant, appellee, was a resident of De Soto county, and the attachment issue had been determined in his favor. This motion was sustained, and the cause as then presented by the declaration on the merits, or debt issue, was dismissed, and from the judgments entered on the two issues this appeal was prosecuted. The undisputed evidence shows that appellee was the owner of a chain of grocery stores, one each in Senatobia and Coldwater, in Tate county, and one each in Love Station and Hernando, in De Soto county; that he had a wife and family and had lived with them in Love Station, in De Soto county, since 1908; that at the date the attachment ivas suecl out, and continuously up to the date of the trial, he was operating the two stores in De Soto county; that some time prior to the date of the-attachment he had sold his stock of goods in Senatobia, and on the day the attachment was sued out he was preparing to move certain store fixtures from Senatobia to his store at Hernando; that during the time he was in business at Senatobia appellee purchased from appellant a truck, paying therefor part cash and executing his note for the •balance; that this truck had been turned back to appellant, but the testimony is conflicting as to whether the truck had been accepted by appellant in full settlement of the balance due on the purchase price. The appellant testified that some time prior to the date of the attachment appellee told him that he (appellee) was broke, and that he was going to sell out his stores and move to Memphis; that at the time the attachment was sued out appellee’s negro driver or helper told him these fixtures Avere going to be moved to Memphis; that appellee Avas then standing near by, but he was unable to say whether appellee heard the statement of this negro helper, and that [118] he did not make any inquiry of appellee in regard to his residence or intentions. The first assignment of error is based upon the action of the court in refusing to grant an instruction to the effect that, if appellee by his words led appellant to believe he intended to remove himself and property out of the state, they should find for the plaintiff on the attachment issue. We think the evidence in this case was insufficient to estop the defendant from denying the truth of the facts alleged in the affidavit, and that the doctrine announced in Cocke v. Kuykendall, 41 Miss. 65, is not applicable. Under the evidence in this case we think it comes within the principles announced in Mack v. Jacobs, 70 Miss. 429, 12 So. 444, where the court said: “The instruction makes the solvency or insolvency of the attached debtor, and the belief of plaintiffs as to his condition financially, induced by the conduct and language of the defendant, prominent factors in determining the issue raised by the plea in abatement. . . . The belief of plaintiffs as to defendant’s solvency- or insolvency was not in issue at all, and their belief as to- his supposed conversion of his property into money, etc., was not the issue to be tried and determined. That issue was: Did the facts alleged in the affidavit for the attachment, and traversed by the plea in abatement exist?” We think the instruction was properly refused, and we find no reason to disturb the judgment of the court below on the attachment issue. The appellant next assigns as error the action of the court in sustaining appellee’s motion to dismiss the case on the merits, after verdict for the defendant on the attachinent issue. We think this assignment is well taken. The circuit court of Tate county acquired jurisdiction by the levy of the attachment writ upon property of the defendant found in that county, and under section 177, Code of 1906 (section 169, Hemingway’s Code) providing that “if the issue on a plea in abatement be found for the defendant, the attachment shall be thereby discharged, and [119] all property seized under it, and all persons summoned as garnishees, shall he released from it; but the action, unless dismissed by the plaintiff, shall be proceeded with in all respects as if it had been an ordinary action in its commencement,” it was error to dismiss the cause upon the dissolution of the attachment. Counsel on both sides seem to concede that the decisions of this court holding that section 707, Code of 1906 (section 486, Hemingway’s Code) providing for a change of venue, has no application to attachment suits, apply also to the debt issue where a plea in abatement has been found for the defendant and the action has become one to be “proceeded with in all respects as if it had been an ordinary action in its commencement,” but as to this we do not express any opinion, as the question is not presented by this record. The judgment of the court below on the attachment issue will therefore be affirmed, and the judgment dismissing the cause will be reversed, and the cause remanded. Affirmed in part and reversed in part.