Lee v. McConnell ( 1915 )

Smith, C. J.,

delivered the opinion of the court.

This was a suit on an open account begun by attachment. The cause came on for trial on the attachment issue, and at the close of the evidence the jury were instructed to find for the defendant, and there was a verdict and judgment accordingly. The affidavit upon which the attachment was issued alleges that appellee is justly indebted to appellant in the sum of three hundred and sixteen dollars on open account, as per sworn itemized statement filed therewith, and then proceeds to set forth eight grounds of attachment, the evidence introduced in support thereof, however, being pointed to the first three; that is:

“ (1) That the defendant is a nonresident of this state; (2) that he has removed himself out of this state; (3) that he so absconds or conceals himself that he cannot be served with summons.”

Appellee introduced no evidence himself, and that introduced by appellant discloses that some time during the year 1911 appellee purchased a farm near Edwards in Hinds county and lived upon it until the 27th day of December, 1911, on which day be went to Edwards, a railroad station, stating that be 'was going borne and intended to obtain a position as engineer with a railroad company, and bad not been seen since in that neighborhood up to the time of the trial in the court below, which occurred on the 5th day of February, 1913. His home prior to coming to Mississippi, according to statements made by him to various persons, was somewhere in the state of Kentucky. He also stated, when leaving, that he intended to return, but did not intimate when he would do so. One letter received from him by appellant some time in 1912 was postmarked Milford, Utah. When appellee left the farm he had purchased, he had rented it, exactly when and for what length of time does not appear, to one Walton, who still lives upon it, paying the rent notes given therefor when the same are presented to him for payment. Whether appellee had ever lived in any other place in Mississippi than on the farm herein-before mentioned does not appear.

• The grounds upon which it is sought to uphold the judgment of the court below are that the evidence, first, does not disclose that the debt sued on is due; and, second, that it does not bring the case within either of the grounds for an attachment hereinbefore set out.

The plea in abatement did not put in issue whether or not the debt sued on was due; therefore that point was not presented to the court below for adjudication.

Under the evidence the jury would have been warranted in believing that appellee had left the state with only a vague idea of returning thereto at some uncertain time in the future. The peremptory instruction', therefore, should not have been given.

Reversed and remanded.