Hopkins v. Drake , 44 Miss. 619 ( 1870 )

Peytoh, C. J.:

This suit was instituted in the chancery court of Claiborne county to enjoin the prosecution of an action of replevin in the county court of said county.

The bill alleges that Martin O. TIopkins brought suit in equity against. David IT. Beasley, for an account and settlement of a partnership business between them, in which it is alleged that the said Beasley was indebted to the complainant, Hopkins, in the sum of $440 89 ; and that during the pendency of said suit, the complainant on the 13th day of November, 1868, sued out a writ of attachment, which was levied by the officer, James M. Smith, on four bales of cotton and mules as the property of the said Beasley, for the payment of said debt.

And the bill charges that E. S. Drake, after the levy of the attachment as aforesaid, sued out a writ of replevin against the said James M. Smith, and placed the same in the hands of Bichard Parkinson, who levied the same on the said cotton and mules in the possession of the said Smith. The said action of replevin was brought to the December term of the county court of said county of Claiborne. The bill concludes with a prayer for an injunction restraining the said Drake from prosecuting his said action of reple-vin, and that upon a final hearing- of the cause, the same may be perpetuated.

At the December term, 1868, of said chancery court, the said defendant, E. S. Drake, moved the court to dissolve the inj unction for the want of equity on the face of the bill; which motion was sustained by the court, and the injunction dissolved. Hence the cause comes to this court by appeal.

The only question in this case is, can property which has been attached, be taken out of the hands of the attaching officer, by a writ of replevin, sued out by a third person, who claims to be entitled to the property and the possession thereof.

It is contended by counsel for the appellant that the property, while in the possession of the officer, by virtue of the levy of the attachment, was in custodia legis, and could not Be taken out of such custody by a writ of replevin emanating from another court. This question has already been adjudicated here in the case of Yarborough v. Harper, 25 Miss., 112. That was an action of replevin brought by the plaintiff against the sheriff, who had levied an execution upon the plaintiffs property in the hands of a third person. The defendant resisted the action on the ground that he had taken the property as an officer, by virtue of an execution against the property of the defendant therein. The court say: “ The execution only authorized the officer to levy on and take possession of the property of the defendant therein. It gave no authority to seize the property of third persons, and he could not, therefore, justify under it.”

In this case, the writ of attachment authorized the officer to attach only the property of Beasley, and would not justify the taking of the property of any other person under it. And Drake, who claimed to be the owner of the property, had his election, either to bring replevin or trespass, or interpose his claim to the property under the claimant act. We think the court did not err in dissolving the injunction.

The decree must, therefore, be affirmed.