Mitchell v. Drake , 57 Miss. 605 ( 1880 )

Chalmers, J.,

delivered the opinion of the court.

Columbus Drake sued out before a justice of the peace a writ of seizure under the agricultural lien law of 1876, against Doc Drake, which was levied by the officer upon fourteen hundred pounds of lint cotton. John C. Mitchell propounded a claim for the cotton, and was allowed by the officer to take possession of it upon the execution of a forthcoming bond as in cases of attachment. Upon the trial before the justice, a personal judgment was rendered against the defendant and a judgment in favor of the claimant as to the ownership of the cotton. From this judgment in favor of the claimant, the plaintiff appealed to the Circuit Court, and the claimant making default in that court judgment was rendered against him and the surety on his bond for the value of the cotton as ascertained and fixed under a writ of inquiry. From tbis judgment, the claimant and his surety sued ont a writ of error.

The case must be reversed. The court had no jurisdiction to give a personal judgment against the defendant. Its sole duty was to dispose of the cotton. Hartsell v. Myers, ante, 135. But this judgment was not appealed from. Neither did the officer have any authority to take the claimant’s bond and surrender the cotton. It is expressly made his duty by law, where property is seized under proceedings before a justice of the peace, to “ hold such property so seized subject to the result of the suit.” Acts 1876, p. 111. The bond not being authorized by statute cannot be made the basis of a summary judgment in this proceeding, but must be sued on by the officer or by the plaintiff in a common-law action. The judgment should have been for a condemnation and sale of the cotton, treating it as still in the hands of the officer, and leaving the plaintiff at liberty to proceed by motion against the officer for a failure of duty or by suit at law upon the bond. This judgment may be entered here.

Judgment accordingly.