Oliver v. Ferguson , 112 Miss. 521 ( 1916 )

Sykes, J.,

delivered the opinion of the court.

Appellees, as landlords, sued out an attachment for rent against one M. E. Ates in a justice of the peace court of Forest county, and certain personal property was distrained under said proceedings as belonging to the tenant, Mrs. Ates. The appellant, Oliver, filed a claimánt’s affidavit in said case claiming one piano, one stool, some shelving, one counter, one end of a counter, and one ice box as belonging to him. On the trial of the claimant’s issue in the justice of the peace court Oliver lost, and presecuted an appeal to the circuit court. In the circuit court Oliver’s testimony shows that all of the above-named personal property, with the exception of the ice box, belonged to him and was by him lent to Mrs. Ates, who kept a restaurant and boarding house. The testimony showed that the ice box had been sold by Oliver to Mrs. Ates. At the conclusion of the testimony introduced by the claimant, Oliver, the circuit court granted a peremptory instruction in favor of the landlords (appellees here) upon the theory that section 4784 of the Code of 1906 was applicable, that under this section of the Code Mrs. Ates transacted business as a trader or otherwise, and that the above-named property was used or acquired in-suda business by her. Mrs. Ates, whether she was a hotel proprietor or a restaurant and boarding house keeper, did not belong to the class of persons included in this section, and the personal property above mentioned was not used or acquired by her in any such business. As was stated by Woods, C. J., in the case of Van Range Co. v. Allen, 7 So. 499:

“The hotel keeper not belonging to the genus trader, .. . . we are wholly unable to see what applicability that statutory panacea, section ' 1300 of the Revised Code, had to the case at bar.”

Section 4784 is an exact copy of section 1300 of the Code of 1880. The lower court was correct in the peremptory instruction relating to the ice box, but committed error as to the other items of personal property above set out.

Reversed and remanded.