Spengler v. O'Shea

Citations

• 65 Miss. 75

Syllabus

<p>1. Ejectment. Evidence of title. Presumption as to return of writ of attachment.</p> <p>Where, in an action of ejectment, the plaintiff, to support his title, offers in evidence a wilt of attachment, which, being returnable to the circuit court, was executed by a constable, and passed through the sheriff’s office and into the circuit court, it will be presumed in the absence of evidence to the contrary that such writ (though bearing no indorsement by the sheriff) was handed to the sheriff and by him returned to the cix-cuit court, as required by Sec. 2426, Code of 1880, and not by the constable.</p> <p>2. Same. Evidence of title. Writ of attachment, without return endorsed. Sec. 2426, Gode of 1880, applied.</p> <p>The failxxre of the sheriff to indorse the fact, and date, of x'eeeipt of such writ of attachment returnable 10 the circuit court and executed by a constable on realty alone, though such endorsement would have been proper, did not effect the validity of the levy, nor deprive the coux't of jurisdiction in the attachment proceeding, under Sec. 2426, Code of 1880, which provides that in such case the constable must at once return the writ, and turn over the property levied on to the sheriff, who “ shall return the writ to the proper officer, with a statement of his action thereunder'.”</p>