Carr-Lowry Lumber Co. v. Martin , 144 Miss. 106 ( 1926 )

^* Corpus Juris-Cyc References: Any 3CJ, p. 231, n. 28. Attachment, 6CJ, p. 52, n. 88; p. 66, n. 59. Trial, 38Cyc, p. 1778, n. 73; p. 1779, n. 75. As to what constitutes nonresidence for the purpose of attachment, see notes in 19 L.R.A. 665; L.R.A. 1915A, 400; 26 A.L.R. 180; 2 R.C.L. 819; 1 R.C.L. Supp. 636; 5 R.C.L. Supp. 113. The appellant sued out a writ of attachment against the appellee for breach of the contract for the payment of notes aggregating one thousand two hundred forty-five dollars. The grounds of the attachment were: First, that the defendant is a nonresident of the state; and, second, that he has removed or is about to remove himself and his property out of the state; and, third, that he has property and rights of action which he conceals and unjustly refuses to apply to the payment of his debts; and, fourth, that he has assigned and disposed of, or is about to assign and dispose of, his property or rights in action or some part thereof with intent to defraud his creditors. The attachment writ was levied upon certain land located in Mississippi, and garnishments were issued to certain defendants alleged to be indebted to the defendant. The defendant pleaded in abatement of the attachment, traversing the grounds of the attachment.

It appears from the record that at the time of contracting the debt Martin owned certain property above his exemptions, and that he had moved his family to Memphis, Tenn., but that he personally remained in Union county, Miss., where the attachment was sued out. He moved certain household effects and a cow to Memphis, and his wife carried an automobile there which the defendant claimed belonged to her. The defendant's testimony showed that his family's moving to Memphis was for the purpose of having one of his children enter school and another daughter who was an adult to secure employment, and that it was his intention to have his family return to Mississippi after the accomplishment of these objects; that he had not purposed to move out of the state himself and he had retained certain property in the nature of household effects for himself. It further appeared that he had sold certain lands after the debt was contracted and that some of the money for such lands was paid to his wife. The case was submitted to the jury on appropriate instructions, and the jury returned a verdict for the defendant on the attachment issue.

We think the evidence for the defendant was sufficient to uphold the jury's finding of fact, and we find no error of law warranting reversal of the case. The judgment will therefore be affirmed.

Affirmed.

ON SUGGESTION OF ERROR. It is contended, on suggestion of error, that we erred in two particulars: (1) In not holding that the attachment was wrongfully sued out, because the defendant carried money out of the state; and (2) because of an instruction which will hereafter be referred to.

It is true that the defendant carried some property and a little money to Memphis at the time he moved his wife and children there, but the property was exempt property, and the money was obtained from the sale of exempt property, which, under section 1833, Hemingway's Code (section 2158, Code of 1906), did not become subject to the demand of his creditors. A creditor has no claim upon the exempt property, or the proceeds thereof, and, consequently, there was no error in this particular.

The instruction complained of is criticized — especially is the language, "The cause was submitted on appropriate instructions," used in the opinion, criticized — and it is insisted that this instruction is fatally erroneous. This instruction reads as follows:

"The court charges the jury for the defendant that the burden of proof in this case is upon the plaintiff to show by a preponderance of the evidence in this case that the defendant is a nonresident of the state of Mississippi, or that he has assigned or disposed of or is about to assign or dispose of his property with intent to defraud his creditors, or that he has removed or is about to remove himself or his property out of the state with intent to defeat his creditors, or that he has property or rights in action that he conceals or unjustly refuses to apply to the payment of his debts, and if the plaintiff has failed to so prove any said grounds, it is the sworn duty of the jury to find for the defendant."

It is said that the word "any" has the effect of telling the jury that, although the plaintiff may have proved one of the said grounds, that still he is not entitled to recover. Bouvier in his Law Dictionary, in defining the word "any," makes it synonymous with "either" in certain cases, and it is manifest to our minds that it has this meaning in this instruction, and that it was so understood by the jury.

The court will construe an instruction, and if, as construed, it is proper, it may be called "appropriate." But whether the word "appropriate" should have been used or not is immaterial, as we think, taking all the instructions together, it is perfectly manifest that the jury was not misled by it. The suggestion of error will therefore be overruled.

Suggestion of error overruled.