Opinion
No. 38665.
February 9, 1953.
1. Attachment — bond given and approved but not marked filed until next day.
Where the attachment bond was good and sufficient and was actually given and delivered to the clerk on the day, and before, the attachment was issued, the fact that the clerk did not mark the bond as approved until the next day did not render the writ invalid.
2. Attachment — grounds in the disjunctive.
Where in the use of printed forms for the affidavit and bond for attachment four grounds were alleged but the disjunctive word "or" between the printed statutory grounds was allowed to stand instead of substituting the conjunctive word "and," did not constitute reversible error, although contrary to the better practice.
3. Attachment — release of part of attached property to third party claimant.
When in an attachment action the writ was levied on a truck and trailer and a third party appeared and showed a superior title to the truck whereupon by agreement with the claimant, the plaintiff in attachment released the truck such release did not amount to a dismissal of the attachment.
4. Attachment — release of part of attached property.
Where the defendant in attachment had admitted that he owed the attachment debt and on the trial the attachment was sustained, the defendant was in no position to complain that a part of the attached property had been released from the attachment to a third party claimant who had executed a good bond for its forthcoming to await the final judgment of the court.
5. Attachment — debt fraudulently contracted — giving of bad check — evidence.
The fact that the attachment debt arose out of a transaction in which the defendant had purchased lumber from the plaintiff and had given therefor a bad check was properly admitted in evidence as tending to sustain the statutory ground of attachment that the defendant had fraudulently contracted the debt.
6. Attachment — quashed — issue for court and not for the jury.
On a motion to quash the attachment, the question of fact whether the execution and approval of the attachment bond preceded the issuance of the writ was one for the decision of the trial judge, and especially so when the facts in that issue were undisputed.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Oktibbeha County; JNO. D. GREENE, JR., Judge.
P.L. Douglas, for appellant.
I. 1. Bond required by statute is condition precedent to the issuance of a valid writ of attachment. Subsequent giving of bond does not make writ valid. 5 Am. Jur. 135, Sec. 896; Chap. 56, Sec. 8, p. 802, Hutchinson's Code 1798 to 1848; Sec. 2683, Code 1942; Ford v. Hurd, 12 Miss. 683, (4 Sm. M. 683); Tyson v. Hamer Richards, 3 Miss. 699, (2 How. 669); Ford v. Woodward, 10 Miss. 260, (2 Sm. M. 260); Houston v. Belcher, 20 Miss. 514 (12 Sm. M. 514); Smith v. Mulhern, 57 Miss. 591.
2. Attachment against debtor is statutory remedy, in derogation of common law, and one invoking aid must comply strictly with provisions of statute. Rankin, et al. v. Dulaney, 43 Miss. 197.
II. Motion of appellant to quash affidavit should have been sustained. Affidavit states four separate causes for attachment joined in the disjunctive. Bishop v. Fennerty, 46 Miss. 570; Helton v. McLeod, 93 Miss. 516, 46 So. 534.
III. Motion of appellant for writ of inquiry, for judgment for the return of truck, upon which attachment had been dismissed, or judgment for its value, and assessment of damages upon dismissal of attachment against truck, should have been sustained. Secs. 2709, 2720, Code 1942; Mandel v. McClure, et al., 14 Sm. M. 11; Higdon v. Vaughn, 58 Miss. 572; Atkinson v. Foxworth, 53 Miss. 741.
IV. Motion of appellant to require appellee to elect cause or ground of attachment relied upon, should have been sustained.
V. The court erroneously entertained motion of plaintiff in attachment to dismiss claimant's affidavit. Sec. 2709, Code 1942; Mandel v. McClure, et al., 14 Sm. M. 11; Hill v. Williams, 50 Miss. 500.
VI. The court erroneously overruled motion of appellant to submit to jury, question of fact, whether or not bond was given before writ of attachment was issued, as presented by special plea in abatement. Art. 3, Sec. 31, Const. 1890.
VII. The court erroneously admitted in evidence check evidencing indebtedness and draft drawn on appellant evidencing attempt to collect indebtedness and letter referring to draft and check and alleged communication with person not a party to the cause of action. Anderson v. Dever, 109 Miss. 235, 68 So. 166; John E. Hall Commission Co. v. R.L. Crook Co., 87 Miss. 445.
VIII. 1. Motion of appellant for peremptorily directed verdict, at conclusion of appellee's evidence, should have been sustained. Pinola Lbr. Co. v. Husbands, 118 Miss. 229, 79 So. 69; Terry v. Jolly, 115 Miss. 26, 75 So. 756.
2. Motion of appellant for peremptorily directed verdict at conclusion of appellee's evidence, as to all alleged causes for attachment, except, that defendant is a nonresident, should have been sustained.
Daniel, McKee McDowell, for appellee.
I. The case of Bank of Augusta v. Conrey, 28 Miss. 667, is more nearly in point with the case on appeal than any cited by the appellant.
The second ground, for which the case is cited, was the question of the filing of the bond and affidavit. The holding of the Court is exactly in line with the position of the appellee on this point on appeal.
II. The second assignment of error of the appellant is that the lower court was in error in overruling the motion of defendant in attachment to quash the affidavit on the ground that the affidavit alleges four separate causes for attachment joined by a disjunctive.
The appellant cites two Mississippi cases in support of his position on this point: Bishop v. Fennerty, 46 Miss. 570, and Helton v. McLeod, 93 Miss. 516, 46 So. 534, and those cases state that alleging four separate causes or more than one cause in the disjunctive is bad practice, and might be grounds for objection, but in neither case was there a reversal on those grounds.
Reference is made to the case of Carr-Lowry Lbr. Co. v. Martin, 144 Miss. 106, 109 So. 849, in which four separate grounds for the attachment were alleged, apparently joined with the word "and" or not joined at all. According to the case just referred to, it is proper to allege one or more grounds for the attachment but only necessary to prove one in order to sustain the attachment.
III. Appellant's third assignment of error was to the effect that the lower court was in error in overruling the motion of appellant for a return of the property, and for damages for the dismissal of the attachment as to the truck.
It is the position of the appellee that the writ of attachment is against the defendant, appellant, by his estate, real and personal, and that under said writ it might become necessary to attach any number of items belonging to the attachment defendant, but that a release of the attachment as to some of those items is not a dismissal of the attachment.
In the view of the appellee, the case closest to the question presented as to a part of the property being released and the attachment sustained as to only part of the property attached, is Clarke v. Parker, 63 Miss. 549.
IV. With reference to the appellant's fourth assignment of error that the lower court erred in overruling the motion of appellant that the appellee be required to elect and specify the cause for attachment upon which he relied, it would appear sufficient to cite Sec. 2678, Code 1942.
V. The fifth assignment of error on the part of the appellant is that the court was in error in sustaining the motion of the appellee to dismiss the claimant's affidavit as to the trailer remaining attached. It is submitted that on the face of the petition of the claimant and according to Sec. 870, Code 1942, the claimant's affidavit was not proper and should have been dismissed. The above code section specifies that a mortgage executed on personal property out of this state shall only be binding on such property in or when removed into this state as against creditors, etc., when the same has been filed for record in the proper manner, and there is no allegation of any kind that the same has been filed anywhere within this state.
It is further submitted that the appellant is not the proper party nor is he in any position to complain of the ruling of the court with reference to this claimant.
VI. In the sixth assignment of error the appellant insists that the lower court was in error in not submitting the question as to the issuance of the bond in attachment to the jury. The record speaks for itself, and there is no conflict in the testimony of the sheriff and the testimony of the circuit clerk and it is urged that there was nothing for a jury to decide.
VII. The appellant in his seventh assignment of error submits that the lower court is in error in overruling the objection of appellant to the presentation of a check evidencing indebtedness, and that the statement, in the presence of the jury was prejudicial to the appellant.
Attention is invited to the fact that one of the grounds for attachment as shown by the affidavit is: "That he fraudulently contracted the debt or incurred the obligation for which suit is about to be brought." It is submitted that in the proving of that ground for attachment, the check and the circumstances surrounding its issuance are all admissible.
In this connection citation is made to Sec. 2153, Code 1942, which is styled: "False Pretenses — Bad Checks."
In the proof of the ground of attachment for fraud in the conception of the debt, the above evidence with reference to the check, draft and certificate of protest, were not only admissible but were very relevant and material and from the above Code section cited it is submitted that these facts being shown, a prima facie case as to the ground of fraud was made out. It is submitted that the lower court was not in error in admitting the above evidence.
VIII. The eighth assignment of error which is the last assignment discussed and argued by the appellant is to the effect that the appellant was entitled to a peremptory instruction, if not as to all the grounds for attachment, then as to all except the ground of nonresidency.
The appellee alleged four grounds for the attachment as shown by the affidavit. The first of those grounds was the nonresidency of the appellant.
It is respectfully submitted that the record and testimony show that the appellee sustained the first ground of the attachment.
Taking the record and testimony as a whole, it is submitted that the evidence was sufficient to go to the jury on the question of the second and third grounds for attachment alleged.
The fourth ground of attachment as alleged, on the basis of fraud, it is submitted was fully sustained as shown and argued in the previous assignment of error.
This suit involves an attachment at law and numerous grounds of error are assigned by the appellant, Gordon Small, for a reversal of the case.
First. It is contended that the motion to quash the attachment should have been sustained for the reason (a) that the affidavit in attachment was made on March 19, 1951, the writ issued and levied on the same day and the bond was not marked approved by the circuit clerk until March 20, 1951; and (b) that the affidavit in attachment set forth four grounds therefor in the disjunctive instead of in the conjunctive, the affidavit having averred "that the defendant is a nonresident of the State of Mississippi; or that he has removed himself out of the State of Mississippi or is about to remove the property therefrom; or that he absconds and conceals himself so that he can not be served with summons; or that he fraudulently contracted the debt or incurred the obligation for which suit is about to be brought."
We shall discuss this first assignment of error and some of the others in what we deem to be the order of their importance.
The undisputed proof discloses that the affidavit was made and the bond given on March 19, 1951, and that the bond was shown to the sheriff at the time the writ of attachment was issued on that day. Both the sheriff and the circuit clerk testified that it was a good bond. The clerk merely failed to note the fact of his approval on the bond until the next day. The writ of attachment issued on March 19, 1951, recited "and bond and security having been given according to the statute." Section 2683, Code of 1942, reads in part as follows: "On affidavit being made and bond given, the officer approving the bond shall issue one or more writs of attachment against the estate of the debtor, directed to the sheriff, or any constable . . ."
The appellant cites the cases of Ford v. Hurd, 12 Miss. 683, (4 S. M. 683) and Ford v. Woodward, 10 Miss. 260, (2 S. M. 260), but in the case of Ford v. Hurd the Court held that no bond was given and that therefore the attachment was void; and in the case of Ford v. Woodward neither had an affidavit been filed nor a bond given and that therefore the writ of attachment issued was without foundation and void. (Hn 1) We think that the case of Bank of Augusta v. Conrey, 28 Miss. 667, is more applicable and that the holding therein tends to support the validity of the writ of attachment issued in the instant case. In that case the trial court quashed the writ on the ground that no legal and sufficient bond had been executed by the plaintiff before the writ was issued, and that no bond and affidavit were returned and filed in court at the return term of the writ. On appeal, this Court held that no injury had or could have resulted to the defendant in the attachment by reason of the failure of the officer to return the affidavit and bond on the particular date required by law. In the case at bar no injury resulted to the defendant in the attachment, since the bond was given and the sureties became bound thereon, when they signed the same with the plaintiff and permitted the same to be delivered to the officers. Neither the principal nor the sureties could complain that the clerk had not marked it approved before he issued the writ of attachment, since in fact it had met with his approval as a good and sufficient bond and he had called it to the attention of the sheriff as affording a protection to him in the execution of the writ then delivered to the executing officer.
(Hn 2) As to ground (b) relied on to quash the attachment, it appears that printed forms of an affidavit and bond were used and that all of the statutory grounds listed therein as bases for the attachment had been crossed out except grounds 1, 2, 3 and 8, but that the affiant and the issuing officer had failed to substitute in the printed forms of the affidavit and writ the conjunctive "and" in the place of disjunctive "or", between each of the four grounds alleged for attachment. While we are of the opinion that it would have been the better practice to have specified the grounds of attachment in the conjunctive instead of in the disjunctive, we do not think that the failure to do so would constitute reversible error, and we have been cited to no case so holding.
Second. The appellant contends that the trial court was in error in not awarding to him a writ of inquiry for the assessment of damages, and in not requiring the return of part of the attached property to him upon the dismissal of the attachment as to such part of the property attached. The attachment was levied upon a truck and trailer. Whereupon, claimant's affidavit was interposed by a finance company as to the truck because it held a retain title conditional sales contract thereon for an indebtedness amounting to as much or more than the value of the truck. On the second day of the return term of the court, the plaintiff in the attachment proceeding agreed with the claimant to release the truck from the attachment. At that time, the defendant in the attachment had not appeared to make defense to the suit. When he did appear, the attachment issue was tried and the writ of attachment was sustained as to the trailer. He did not deny the indebtedness of $900.39 for which the property was attached. The attachment was sustained by the verdict of a jury as to the trailer. (Hn 3) We do not think that the prior release of the truck by agreement of the plaintiff in attachment and the claimant amounted to a withdrawal or dismissal of the attachment, but merely represented a recognition on the part of the plaintiff in attachment that the claimant had a better right to the possession of the truck for which it had given bond as claimant, insofar as the plaintiff and the claimant were concerned. Then, too, if the defendant in attachment had prevailed on the attachment issue, he still had the right to contest the right of the claimant to the truck and to recover the same from the claimant or to recover the value against the claimant's bond if he could have shown that the claimant was not entitled to the possession thereof. (Hn 4) As to the contention of the defendant in attachment that the plaintiff therein should not have released the truck, we are of the opinion that an attachment debtor is in no position to complain that a part of the attached property was released by his creditor from the attachment, and especially where the claimant had executed a good and sufficient bond for its forthcoming to await the final judgment of the court.
Third. It is contended by the defendant in attachment that it was error for the trial court to have admitted testimony showing that he had given a bad check for the lumber purchased from the attaching creditor. (Hn 5) Such proof tended to sustain the ground of attachment set out in the affidavit to the effect "that he fraudulently contracted the debt or incurred the obligation for which suit is about to be brought." Moreover, we think that there was sufficient proof to warrant the jury in finding that the first ground of attachment was sustained to the effect "that the defendant is a nonresident of the State of Mississippi." However, if either of the grounds were sustained by the proof, then the attachment was not wrongfully sued out.
Fourth. The defendant in the attachment contends that the court should have submitted to the jury, as a question of fact, whether or not the bond was tendered to and approved by the officer issuing the writ of attachment, before the writ was issued. (Hn 6) We do not think that there was error committed in that regard for the reason that there was no dispute in the testimony as to the facts on that issue, and then, too, the point was related to the question of whether the writ of attachment should have been quashed, and that was an issue to be determined by the court.
Fifth. The defendant in the attachment contends that he was entitled to a peremptory instruction on the attachment issue. We think that this contention is without merit for the reason that the proof is undisputed that the defendant purchased and received a bill of lumber from the plaintiff at a cost of $900.39 by means of giving a check on a bank at Kankakee, Illinois, which went to protest on the ground that his account at the bank had been closed, and he did not deny that he still owed for the purchase price of the lumber so obtained.
We deem it unnecessary to discuss the several other assignments of error since we are of the opinion that they were not well taken on the basis of the facts hereinbefore stated. The judgment appealed from must therefore be affirmed.
Affirmed.
Hall, Lee, Arrington, and Lotterhos, JJ., concur.