Miller v. Tennant-Stribling Shoe Co.

Citations

• 119 F. 865
• 56 C.C.A. 377
• 1903 U.S. App. LEXIS 4808

Syllabus

<p>1. Attachment — Claim by Third Party — Procedure under Mississippi Code.</p> <p>Code Miss. 1892, §§ 4425-4428, provide for the filing of an affidavit of claim by a third party to property seized under execution or attachment, and that on the making of such claim “the court shall on motion of the plaintiff in execution direct an issue to be made up between the parties to try the right of property at the same term.” Section 4428 provides that, if by default of the plaintiff in execution an issue be not made up at the term to which the execution is returnable, the court shall discharge the claimant from his bond, and the property shall not be subject to the plaintiff’s execution or attached. Held, that such provisions are binding on a federal court, and, where an attachment plaintiff failed to have the issue made up -at the term, the claimant was entitled to have the property discharged from the levy, and to be discharged from a forthcoming bond given by him, which right was not lost by his failure to move.'for such discharge until after a number of terms had passed.</p> <p>¶ 1. Federal courts following state practice as to issuance of attachment, see note to O’Connell v. Reed, 5 C. C. A. 594.</p>