Higdon v. Vaughn

Citations

• 58 Miss. 572

Syllabus

<p>1. Bond. Of claimant in attachment. Dismissal of claim. Breach of condition.</p> <p>Where a claimant in attachment obtains possession of the property attached by-giving a bond, under sects. 1456 and 858 of the Code of 1871, conditioned to deliver the property to the sheriff “if the claim thereto should be determined against the claimant,” and his claim is dismissed by the court because of his failure to file the affidavit required by the statute, such dismissal is a determination of the claim; and if the claimant then refuses to deliver up the property, that is a breach of the condition of the bond.</p> <p>2. Same. Action thereon. Plea. Presumption as to action of court below.</p> <p>If, in an action upon such bond, the obligor pleads that his claim in attachment was dismissed without his consent, but fails to show the ground of the dismissal, this court will presume that such dismissal was correct.</p> <p>3. Attachment. Claim of third person. Dismissal for want of affidavit.</p> <p>Where a claimant in attachment, under the Code of 1871, fails to file the affidavit required by sect. 858 thereof, his claim should be dismissed, upon the motion of the plaintiff, notwithstanding the fact that he has given the bond required and received the property.</p> <p>4. Bond. Of claimant in attachment. Dismissal of claim. Estoppel.</p> <p>Where the claim of a third person in attachment has been dismissed for want of the affidavit required by sect. 858 of the Code of 1871, the claimant is estopped from pleading, in an action upon his bond for a breach of the condition to deliver up the property, that such affidavit was made and filed in the attachment proceeding.</p> <p>•5. Same. Of claimant in attachment. Judgment on claim. Effect as to surety.</p> <p>Any judgment upon the claim of a third person in attachment which concludes the claimant is equally as conclusive as to the surety on his claimant’s bond.</p> <p>6. Samis. Of claimant in attachment. Plea of sureties. Trial of righ