Downing v. Campbell

Ethridge, J., delivered the opinion of the court. This is an appeal from a judgment dissolving an injunction and dismissing the bill sued out by the appellants against the appellee upon the judgment of the justice of the peace under a proceeding by the appellee to dispossess appellants of certain premises under the provision of section 2885, Code of 1906 (Hemingway’s Code, section [142] 2383). The affidavit in the.proceedings to dispossess appellants reads as follows: “The State of Mississippi, Coahoma County.. “Before the undersigned justice of the peace for said county, Mrs. L. G. Campbell makes oath that M. G. Downing and Ara E. Downing are indebted to her in the sum of fifty dollars for rent of house and premises at 112 Issaquena avenue, in the city of Clarksdale, in said county, described as lot 16, block N, of the city of Clarksdale; that said premises were let to the said M. G. Downing and Ara E. Downing on the 1st day of December, 1920, at the rate of fifty dollars per half month; that said tenant neglected to pay said rent so due as aforesaid, or any part thereof; that the amount due cannot be made by distress of the tenant’s goods; that said rent is past due and unpaid, and, the necessary three days’ notice according to law having-been given said tenants to terminate their tenancy, and said tenants will not deliver to affiants possession of said premises. - “Mrs. L. G. Campbell, “By R. I-I. Kirby, Agent and Attorney. “Sworn to and subscribed before me, this 24th day of March, 1921. “R. E. Stratton, Sr., “Justice of the Peace.” On filing this affidavit the justice of the-peace issued the following writ: ' “The State of Mississippi, to the Sheriff or any Constable of Coahoma County: “By affidavit of Mrs. L. G. Campbell we are informed that M. G. Downing and Ara E. Downing, tenants, now in possession of dwelling house and premises at 112 Issaquena avenue, in the city of Clarksdale, in the county aforesaid, known as lot 16, block N, of the city of Clarksdale, without the permission of the said Mrs. L. G. Campbell, landlord, hold over after the expiration of their term, and will not deliver to the said Mrs. L. G. Campbell, landlord [143] possessions of the same. We therefore command you to require the said M. G. Downing and Ara E. Downing, or the person in possession of the same, or claiming possession thereof, forthwith to remove from the same, or to appear before the undersigned justice of the peace of said county, on the 28th day of March, 1921, at ten .a. m., to show cause why the possession of the said premises should not be delivered to the said Mrs. L. G. Campbell; and have then and there this writ. “Witness my hand this the 24th day of March, 1921. E. E. Stratton, Sr., “Justice of the Peace.” At the return day of the writ thereon issued, the defendants not appearing, the justice entered judgment reciting that the defendants had been served with process, and, it appearing that the defendants were in arrears for rent, and that it was necessary that three days’ notice be given defendants to vacate the premises, and that same has not been paid and cannot be made' by distress, ordered that the plaintiff recover possession of the premises described, and a writ of possession was issued under the said judgment. The bill of injunction among other things alleged that Mrs. L. G. Campbell did not in fact make the affidavit, and that the proceedings were void for this reason, and this allegation is not denied in the answer, but the answer with reference thereto admits, in effect, that Mrs. Campbell did not make the affidavit, but that her agent had authority to make the affidavit. It is further alleged in the bill that it was not true that the appellants were indebted to Mrs. Campbell, and it is further alleged that they had more than one thousand dollars worth of property situated upon the premises from which any sum due for rent could have been collected by distress, and that no distress warrant had ever been issued. An itemized list and valuation of the property is attached to the bill. The answer admits that no distress had ever been issued for [144] the rent, but denied that there was sufficient property subject to distress upon the premises. There are a number of other attacks made against the judgment which we deem it unnecessary to notice inasmuch as the affidavit is shown by the bill and admitted by the answer not to have been sworn to by Mrs. Campbell. It is said by the appellees that the signatures to this affidavit are unnecessary, and therefore the fact that it was signed by E. H. Kirby as agent and attorney was immaterial under the doctrine of Coppock v. Smith, 54 Miss. 640. In the present case the bill distinctly charges that Mrs. Campbell did not swear to the affidavit. This is admitted in the answer. Therefore, the affidavit, not purporting to be the affidavit of Kirby, but purporting on its face to be the affidavit of Mrs. Campbell, when in fact Mrs. Campbell made no affidavit, is insufficient to support the proceeding under section 2886, Code of 1906 (Hemingway’s Code, section 2384), which requires an affidavit to be made. In Wilson v. Wood, 84 Miss. 728, 36 So. 609, this court held that proceedings under this section must show a strict compliance with the requirements of the section, while under the statute the agent of the landlord may make the necessary affidavit, it is held in Coppock v. Smith, 54 Miss. 640: “The affidavit, however, must be personal; that is to say, it must be the act of the person making it. One man cannot swear for another. Waller v. Shannon, 53 Miss. 500.” See, also, Burks v. Burks, 66 Miss. 494, 6 So. 244. The proceedings under section 2885, Code of 1906 (Hemingway’s Code, section 2383), and subsequent sections, is a harsh and summary remedy, and it is necessary that the statutory requirements be adhered to; if the tenant contests and loses, he is subject to double payment of rent for unlawfully withholding possession. Proceedings under this section are in a special court of limited and special [145] jurisdiction, and all requirements of law must be followed, and the record must so show. The complaints in the bill in the present case offered to pay whatever rent was found to be due by the court, denying that they owed any rent. The chancellor should have overruled the motion to dissolve and heard evidence upon the issues made and determined the amount of rent actually due by the complainant to the date of hearing, so that the complainant would know precisely ivhat money to pay to keep himself from being evicted. The judgment will be reversed, the injunction reinstated, and the cause remanded for further proceedings. Reversed and remanded.