Gilbert v. Glenny

Smith, C. J., delivered the opinion of the court. This is an appeal by the defendant in the" court below from a judgment in an action of replevin. The affidavit was made before and the writ was issued by a justice of the peace, though the value of the property replevied, an automobile, made a case of which the court below has original jurisdiction. The writ was not executed by either a constable or the sheriff but by J. A. Riddell, who was specially authorized to execute it by the justice of the peace by whom it was issued. Riddell [607] seized the automobile, and instead of delivering it together with the writ to the constable or sheriff!, as required by section 2733, Code of 1906 (Hemingway’s Code, section 2232), accepted a bond from the appellant for the property, delivered it to him, and returned the writ to the magistrate with his action thereunder noted thereon. The affidavit, together with the writ, was thereafter filed with the clerk of the court below, and when the case came on for trial the defendant, the appellant here, filed a motion “to quash the writ of replevin, release the bond, return the property herein, and quash the return, ’ ’ which motion was overruled, and a continuance of the case on the ground of the absence of a material witness was then requested by the appellant, but refused. Under section 2732, Code of 1906 (Hemingway’s Code, section 2231), a justice of the peace is authorized in eases of emergency to appoint a person who is neither a constable nor sheriff “to execute any process” which the justice of the peace is authorized to issue, and not such only as is returnable to his court. And, while it does not here appear what the emergency was which prompted the justice of the peace to appoint Riddell to execute the writ, the existence of such an emergency will he presumed, and will not be inquired into. The taking of the bond by Riddell was irregular, hut neither the appellant nor his sureties can complain thereof. Spears v. Robinson, 71 Miss. 774, 15 So. 111; State Line Mercantile Co. v. Goodwin, 131 Miss. 274, 95 So. 436. The return of and on the writ having been made by Riddell and not by the sheriff or constable, as required by sections 2733 and 2734, Code of 1906 (sections 2232, 2233, Hemingway’s Code), is void, and the court was without power to proceed to a judgment thereon, unless and until a general appearance in the case was entered by the defendant. Tucker v. Byars, 46 Miss. 549; Barnett v. Ring, 55 Miss. 97; Murphy v. Orgill (Miss.), 23 So. [608] 305; State Line Mercantile Co. v. Goodwin, 131 Miss. 274, 95 So. 436. The return on the writ being void, the appellant’s motion to quash it should have been sustained. Under section 3946, Code of 1906 (section 2953, Hemingway’s Code), wh;"h provides that: “Wher' ummons or citation, or the service thereof, is qug motion of the defendant, the case may be contin. ;r the term, but defendant shall be deemed to have entered his appearance to the succeeding term of the court,” — the only advantage which the appellant could have gained therefrom was a continuance of the case to the succeeding term of the court, to which continuance he would have been entitled as a matter of right. ' ‘ The judgment of the court below will be reversed, and the cause remanded. - Reversed and remanded.