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1 Miss. Dec. 311

Lott v. Collins

Mississippi Supreme Court

Decided February 23, 1885

Mississippi Supreme Court · decided 1885-02-23

An attachment was sued out by R. E. Oollins before a justice of the peace of Olark county, against the estate of Wiley Lott, alleging an indebtedness of $300 and property amounting to $219 was levied upon by tbe sheriff, and was bonded out by Lott, with Jere Saunders and W. W. Fulgham as sureties. Shortly afterward an alias attachment was sued out by E. E. Collins against said Lott, returnable to the Circuit Court of Clark county.

Affirmed in part and reversed and remanded in part, · Decided 1885-02-23

¶1Opinion.

Campbell, C. J.,

¶2delivered the opinion of the court:

¶3Undoubtedly the judgment quashing the attachment was correct, but it was competent for the parties or counsel to have it put aside by consent and for the defendant to consent to a judgment against him; indeed, as he had been summoned to answer the declaration, he would have been liable to a judgment by default, if he had not pleaded, hut he had pleaded, and it was admissible for him notwithstanding this to consent to a judgment, as the record shows *316he did. The judgment against him was made proper by his consent, and his sureties on the replevy bond could not gainsay it. The judgment against Lott must stand because he consented to it. The judgment against the sureties on the replevy bond is erroneous, because there was no ascertainment of the value ‘of the separate articles replevied, separately, so as to admit of a return of any of them.

¶4The judgment against Saunders and Fulgham will be reversed, and the case remanded for the execution of a writ of inquiry to ascertain the value of the goods and a proper judgment thereon against them.

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