Lewis v. Sinclair , 126 Miss. 16 ( 1921 )

Cook, J.,

delivered the opinion of the court.

Appellee, plaintiff below, instituted an action of replevin in the justice court of district No. 4 of Pike county seekingrio recover possession of certain personal property which was located in district No. 3, and the writ was made returnable before the justice of the peace who issued it. Appellant, defendant below, resided in district No. 3 and the property was found at his residence when it 'was seized under the writ. Upon the trial of the cause in the justice court of district No. 4 there was a judgment for plaintiff and defendant appealed to the circuit court. In the circuit court a motion was made to dismiss the cause for want of jurisdiction, but this motion was overruled, and judgment was entered for plaintiff, from which this appeal is prosecuted.

The venue of the action of replevin is regulated by section 4216, Code of 1906 (Hemingway’s Code, section 3045), which provides that the action may be instituted in the (Circuit court of a county or the justice court of a district in which the defendant, or one of several, or the property, or some of it, may be found. Under section 4214, Code of 1906 (Hemingway’s Code, section 3043), the required affidavit may be made before any justice of the peace, but upon the filing of the affidavit the justice of the peace must issue the writ returnable before the proper circuit court when, the value exceeds two hundred dollars, or to the court of the proper justice of the peace if the value shall not exceed that sum, and the affidavit shall be returned to arid filed in the proper court at once. Under these sections the writ of replevin in this case should have been made returnable before a justice of the peace in district No. 3, where the defendant resided and the property was located. The action of replevin is a proceeding in rem and the justice court of district No. 4 was without jurisdiction to hear and determine the cause. Therefore the motion to dismiss for want of jurisdiction should have been sustained.

Reversed and dismissed.