Attachment. is founded upon a contract other than a bond or note, the Circuit Court and justices of the peace have concurrent jurisdiction. Where, in either case, the amount falls below fifty dollars, the justices have exclusive jurisdiction. The remedy by attachment is not confined to citizens of the It has been repeatedly held that a non-resident may have an attachment in the state against a non-resident. (a) On affidavit by a creditor whose claim exceeds five dollars, but falls below fifty dollars, that the debtor has no goods or chattels within the state, liable to attachment issued by a justice of the peace, he may sue in the Circuit Court. A creditor, before he can obtain an attachment, must file, either with the clerk of the Circuit Court, or with the justice, as the case may be, an affidavit, made either by himself or by some person on his behalf, stating that the defendant is justly indebted to the plaintiff, after allowing all just credits and offsets, in a sum to be specified, and on what account, and shall also state that the affiant has good reason to believe and does believe the existence of one or more of the causes which entitle him to the writ of attachment. The creditor, or some responsible person as principal, and one or more sureties, must also file a bond, whose sufficiency is to be judged of by the clerk or justice, as the case may be, in a penal sum at least double the demand sworn to, payable to the state of Missouri, and conditioned that the plaintiff shall prosecute his action without delay, and pay all damages which may be sustained by the defendant or any garnishee, by reason of the attachment, or any proceeding in the suit, or any judgment or process thereon. Where the creditor sues in the Circuit Court, and there are several defendants who reside or have property in different counties, or where a single defendant in any such action has property or effects in different counties, separate writs may issue to every such county. No property or effects exempt by law from execution, shall be attached or seized, in any suit against a defendant who is a resi dent of the state. In a proceeding before the Circuit Court, the (a) Posey v. Buckner, 3 Miss. 605; Graham v. Bradbury, 7 Miss. 281. Proceedings in Civil Suits. lands, tenements, goods and chattels, moneys, or credits of a defendant, are liable to be taken upon attachment. The interest of a joint obligee may be attached for his individual debt, in the hands of the obligor. (a) Debts not yet due may be attached, but no execution shall be awarded against garnishee until they become due. Where judgment in this proceeding is entered against a defendant by default, it will bind only the property and effects attached, and no execution thereon can issue against any other property of the defendant, nor against his body, nor shall such judgment be any evidence of debt against the defendant in any subsequent suit. Attachment against vessels.-Boats or vessels used in navigating the waters of the state are subject to a lien, which may be enforced by a proceeding against them (among other cases) for all debts contracted by the master, owner, agent or consignee of such vessel, on account of stores or supplies furnished for the use thereof and for all demands accruing by reason of the nonperformance of any contract of affreightment, or of any contract touching the transportation of persons, entered into by the master, owner, agent, or consignee of the boat. (b) 9. Proceedings in Civil Suits. Imprisonment for debt.-A party cannot be held to bail or imprisoned upon any contract or debt whatsoever. (c) Judgments and executions.—Judgments constitute a lien upon real estate in any county in which they may be rendered or recorded, from the time of their rendition, for the period of three years. During this term, execution may at any time be issued. The lien of a judgment extends to lands acquired after its rendition. A judgment and lien may at any time within ten years be revived by scire facias. (d) No execution shall create a lien upon any personal property, or upon any real estate to which the lien of the judgment does not extend, but from the time of its delivery to the officer. (e) (a) Miller & Irvine v. Richardson, 1 Miss. 310. (b) R. S. (c) Ib. 574. Effect of Death upon the Rights of Creditors. An execution of fieri facias may issue upon the judgment or decree of a court of record, against the goods, chattels, and real estate of the defendant. It may be directed to and executed in any county of the state. Shares of stock in any incorporated. company, evidences of debt issued by any moneyed corporation, or by the government of the United States, or of any state, and equitable as well as legal interests in real estate may be taken and sold upon execution. Leases upon land for any unexpired term of three years or more, are subject to execution and sale as real estate, and cannot be sold on an execution issued by a justice of the peace. The defendant in execution may elect what property or what part thereof shall be sold by the officer. By giving a bond with good security, conditioned for the forthcoming of the property at the day and place of sale, the defendant may retain possession during the intermediate period. If the condition of the bond is broken, the defendant may obtain a summary judgment at the return term of the execution, and upon an execution on this judg. ment, no such privilege shall be accorded to the debtor or his sureties. If the officer cannot find sufficient property to satisfy an execution, the plaintiff or his agent may direct him to summon as garnishees any debtors of the defendant, against whom proceedings may be had similar to those which take place in suits originating by attachment. (a) Courts.-General and original jurisdiction in all civil causes is confided to the Circuit Courts, which hold a term every spring and fall in each county of the state. 10. Effect of Death upon the Rights of Creditors. The personal estate is the primary fund for the payment of debts under the laws of Missouri. But where it is insufficient, upon a petition by the executor or administrator, or in event of his default, by any creditor, to the proper County Court, the real estate will be ordered to be sold. (b) Effect of Death upon the Rights of Creditors. The debts of a decedent are distributed into the following classes, and are to be paid in the order of their enumeration :1st. Funeral expenses. 2d. Expenses of the last sickness. 3d. Debts due the state. 4th. Judgments rendered against the deceased in his lifetime; but if these judgments constituted liens upon the real estate of the deceased, and the estate shall be insolvent, such judgments are to be paid without reference to classification, except as to the first and second classes of demands. 5th. All demands, without regard to quality, which shall be legally exhibited against the estate, within one year after the granting the first letters thereon. 6th. All demands thus exhibited after the end of one year, and within two years after letters granted. 7th. All demands thus exhibited after the expiration of two years, and within three years after granting of such letters. (a) Where any person residing in another country at the time of his decease, leaves property in Missouri, it is to be distributed in such a manner, if practicable, as that all his creditors, without regard to the nature of their debts, should receive an equal proportional share of his estate. For this purpose, no non-resident is to receive any share of the assets, until the citizens of Missouri have received a just proportion of their claims, calculated upon an estimate of the entire value of the estate of the deceased, wherever found. If there be any residue after such payment to the citizens of Missouri, it may be appropriated to satisfy the claims of any foreign creditors which have been duly proven. (b) If any person commence a suit of any kind in the Circuit Court against an estate, within one year from the date of administration, he may recover judgment, but shall pay all costs. All demands against the estate of a deceased person, not exhibited within three years after the granting of letters to the executor or administrator, are barred, saving to infants, persons of unsound mind, imprisoned, or absent from the United States, and married women, three years after the removal of their disabilities. (c) (a) R. S. 90. (b) Ib. 103. (c) Ib. 91. Effect of Death upon the Rights of Creditors. All actions pending against any person at the time of his death, which by law survive against the executor or administrator, and all actions commenced against such executor or administrator after the death of the deceased, shall be considered demands legally exhibited against such estate, from the time of reviving the action or serving the original process on the executor or administrator, as the case may be. A notice in writing, served upon an administrator or executor, stating the nature and amount of a claim, with a copy of the instrument of writing or account upon which it is founded, is to be deemed a demand legally exhibited from the time of serving such notice. (a) Every executor or administrator is required to make an annual exhibit of his account for settlement, with proper vouchers at the end of each year from the date of his letters, until his administration is completed. (a) R. S. 91. |