Imperial Cotton Oil Co. v. Allen ( 1903 )

Calhoon, J.,

delivered the opinion of the court.

The modification of the plaintiff’s fifth instruction, in our opinion, was error. The other instructions on both sides are general as to nonresidence, and point to the propostion that the defendant’s absence should be so prolonged that he could not be served with any ordinary process. The plaintiff wanted the benefit of a charge that, if there was absence of defendant with intent to remain out of the state for an indefinite period, there was nonresidence within the meaning of the attachment law, “although the jury may believe from the evidence that he occasionally visited the state of Mississippi,' or intended at some uncertain time to return to Mississippi, and to live there permanently.” These quoted words the court struck'out, and for them substituted these: “So that he could not be served with ordinary process, then defendant is a nonresident within the meaning of the law.” Plaintiff was entitled to the charge as he asked it, to give the jury the idea that a creditor is not compelled to wait to get a snapshot on the wing, but is “entitled to a fair and reasonable opportunity for a resting shot.” Weille v. Levy (Miss.), 20 So., 3, 60 Am. St. Rep., 500; Pindell v. Harris, 57 Miss., 739.

Reversed and remanded.