Bates v. Crow ( 1880 )

Chalmers, J.,

delivered the opinion of the court.

An attachment writ for eleven hundred and fifty dollars, issued by a justice of the peace, was levied by a constable upon property valued at that sum, and the officer, instead of turning over the property and the writ to the sheriff of the county, as required by the statute, accepted from the defendant a replevy bond for the property, which, with the writ, he returned into the Circuit Court. Upon motion in that court the case was dismissed upon the ground that no jurisdiction had been acquired, inasmuch as the constable was not an officer of the Circuit Court, and could not by his return give it jurisdiction over the property seized. Whether this action was right or wrong under our previous statutes, and, there are utterances which seem to sanction either view (see, on the one hand, Lawrence v. Featherston, 10 S. & M. 345, and, on the other, Tucker v. Byars, 46 Miss. 649, and Barnett v. Ring, 65 Miss. 97), it was certainly improper under the act of Feb. 21, 1878. (Acts 1878, p. 193.) The effect of that act, changing the doctrine announced in Lewenthall v. Mississippi Mills, 55 Miss. 101, is to make every attachment case virtually two suits, — one in rem and another in personam. In any point of view, therefore, it was erroneous to dismiss the entire case. The utmost that the court should have done was to dismiss the attachment proceeding ; and even this would have been improper if the plaintiff had asked for the issuance of an alias writ of attachment, to be properly executed and returned, as was held in Barnett v. Ring, ubi supra. This may yet be done on the return of the case to the court below. The effect of the statute of 1878 is also to change the rule announced in Lewenthall v. Mississippi Mills, that the filing of a plea to the merits operates as a waiver of a plea in abatement to the attachment writ. The two proceedings now progress-in a great degree independently of each other.

Reversed and remanded.