Hopkins and Smith v. John Grissom, 26 Miss. 143

Mr. Chief-Justice Smith delivered the opinion of the court. This suit was commenced by attachment sued out from a justice’s court in the county of Tippah. The affidavit on which the attachment issued alleged, that John Grissom, the defendant, had removed out of the said county, as affiant had reason to believe, and did believe, so that the ordinary process of law could not be served upon him. After judgment was rendered for the plaintiffs, the cause was removed, by certiorari, into the circuit court; in which, upon motion of the defendant, the attachment was quashed, for want of a sufficient affidavit. The attachment in this case was issued tinder the 13th

section of the statute regulating the proceedings in attachments against absconding debtors (Hutch. Dig. 803). According to the provisions of that statute, a person, before he can sue out an attachment against the effects of his debtor, must make oath before a justice of the peace, that his debtor is indebted to him in a sum within the jurisdiction of said justice; and that such debtor hath removed, or is removing out of the county wherein the debt was contracted, or so absconds or conceals himself, that a warrant cannot be served on him.

The affidavit upon which the attachment issued does not, therefore, pursue the statute in this; it does not allege that the defendant had removed out of the county in which the debt was contracted, or that the debt was contracted-in the county where the attachment issued. The remedy by attachment is out of the ordinary course of proceeding; and was designed to be applied only in cases of emergency specified in the statute. Every requisition of the statute must hence be strictly complied with, or the proceeding will be irregular and void.

It is expressly required that.the attaching creditor shall make oath, that the debtor has or is removing out of the county where the debt was contracted, before he shall be entitled to this remedy. We may not readily perceive the expediency of confining it to debts contracted in the county; but as the direction is express, we do not feel authorized to disregard it. We are bound to consider that an essential condition which is expressly required by the law. Judgment confirmed.