Drysdale v. Biloxi Canning Co.

Woods, C. J.,

delivered the opinion of the court.

Appellee sued out two attachments against appellant on the same day before a justice of the peace of Harrison county, alleging, in one case, an indebtedness of appellant evidenced by an accepted bill of exchange, of January 6, 1888, for $147.55, and in the other case, an indebtedness of appellant evidenced by another bill of exchange, of December 27,1887, for $147.50 — both on the ground of non-residence of the defendant. There was judgment by default in each case at the return term for the amount claimed. There was no return by the officer executing these writs showing whether the defendant therein had or had not been found. Indeed, the officer made no return whatever as to execution of process upon the defendant. There was no affidavit made by the plaintiff below setting forth defendant’s post-office address, beyond the limits of this state, nor any affidavit stating an inability to ascertain such-address. The levy of both writs, as shown by the officer’s return, was a sufficient levy upon wild or unoccupied real estate, but was insufficient as a levy upon cultivated or occupied realty. A judgment was rendered, as has been stated, in both cases in the justice’s court against Drysdale, the defendant below. Executions were issued upon these judgments, and the lands, sold under them and the same purchased by the canning company, the plaintiff in these proceedings, and deeds were made accordingly by the officer selling under the executions.

The appellant thereafter exhibited his bill in the chancery court of Harrison county praying a cancellation of these deeds as clouds *538 upon his title. A decree pro oonfesso was taken against the appellee, and on final hearing the appellant’s bill was dismissed without prejudice, and from this decree the complainant in the chancery court appeals to this court.

It is assigned for error that the justice of the peace, in the original suits, was without jurisdiction, and that the judgments were therefore void. It is asserted by appellant’s counsel that both debts, evidenced by the separate bills of exchange, being due, and both aggregating a sum exceeding $150, they could be the basis of but one attachment suit, and that such suit was triable only in the circuit court.

While the aggregate of the two debts exceeds $150, as stated by counsel, yet the amount of each debt or demand does not exceed $150. This was clearly an instance of the creditor having two separate, distinct causes of action. There was not one cause of action, made up of several items. It was not a case of cutting up one cause of action, whereby several suits were improperly made possible, by reason of thus dividing up the items in one original cause of action. There were two bills of exchange, accepted at different times, maturing at different times, and for different amounts, and they were indubitably suable at different times. The creditor might have sued upon both in one action in the circuit court, if he had so elected; but it is impossible to see why he should not be permitted to sue separately in any appropriate form of action that would most surely and most quickly enable him to collect his debt, in any court having jurisdiction of each separate demand. We are of opinion, then, that the justice had jurisdiction of the suits. McLendon v. Pass, 66 Miss. 110 .

It is also assigned for error that the levy in each case in the attachment suits, by the officer holding the writs, was a nullity, the return of the officer not showing that he “ went to the house or land of the defendant, or to the person or house of the person in whose possession the same may be, and then and there declared that he attached the same at the suit of the plaintiff.” Granting that the levy, as shown by the return of the officer endorsed on the writ, is of the vicious character claimed by appellant’s counsel as a levy upon cultivated or occupied land, yet it is good as a levy upon *539 wild or unoccupied land. The bill of complaint filed by Drys-dale, the appellant, contains no averment that the lands in question were cultivated or occupied, and we must treat it, therefore, as a valid levy on wild or unoccupied land.

The contention of appellant touching the irregularity and invalidity of the publication and notice to the defendant in the attachment suits before the justice of the peace, appears to be well taken. Sec. 2423, code 1880, provides that “if the defendant can be found, the said officer shall also summon him to appear and answer the action.” This requirement of law was wholly ignored by the officer, and his return on the writ wholly fails to disclose whether the defendant could be found in his county. There was a total omission by the officer to either summon the defendant or show that he could not be found. In the affidavit for the attachment writ the plaintiff below had stated under oath that Drysdale, the defendant, was a non-resident, but neither in that affidavit nor elsewhere in the record does it appear that any showing was made as to his post-office address, in the state of his residence. The proviso to § 2437 makes it imperative upon the attaching creditor to “ file with the proper officer his affidavit, if the affidavit for the attachment does not contain such statement, showing the post-office of the defendant, or that he has made diligent inquiry to ascertain it without success,” and § 2472 of the code makes the provision just quoted applicable to suits in attachment before justices of the peace. The flagrant disregard of these plain statutory requirements, designed to give a non-resident defendant notice of the pendency of an attachment suit against him, must be held to vitiate and nullify all subsequent proceedings in the case. Without any former adjudications on this point (and there are several in our reports), it seems incredible, almost, that any sane suitor should begin proceedings under our attachment laws, and hope to win in a legal contest in despite of his gross neglect of the simplest and plainest provisions of the statute on the subject of attachments.

From the record, as it appears here, the appellant was entitled to have the relief prayed for in his bill.

Reversed and decree here for appellant.