* Corpus Juris-Cyc. References: Appeal and Error, 3CJ, p. 417, n. 85; p. 418, n. 87: Attachment, 6CJ, p. 42, n. 9; p. 69, n. 91 New; p. 70, n. 96, 1; p. 134. n. 25; p. 483. n. 66; p. 506, n. 89; p. 534, n. 35; p. 543, n. 1. As to necessity of proving grounds for attachment, see 2 R.C.L. 832. This suit arose in a court of a justice of the peace on an attachment and garnishment proceeding on a debt alleged to be due Deas Duke, appellees herein and plaintiffs in the lower court, by J.G. Crooke, appellant herein and defendant in the lower court, amounting to thirty-eight dollars and twenty cents.
The case was appealed to the circuit court and a judgment was rendered there for thirty-eight dollars and twenty cents on the debt issue, which was not contested, and the attachment was sustained on a contest made by the traverse of the grounds of attachment by Crooke. The garnishee, the New Orleans Northeastern Railroad Company, answered the writ of garnishment, admitting an indebtedness to Crooke of one hundred and eight dollars, wages for labor and services. In the circuit court the debt of thirty-eight dollars and twenty cents was not denied, and was admitted to be due by the defendant, Crooke. The attachment, affidavit, and writ are in the usual form, and the grounds for attachment relied on by the plaintiffs are Nos. 5, 6, 7, and 8, as shown by section 125, Hemingway's Code (section 133, Code of 1906). *Page 267
With his traverse the defendant filed a claim for damages amounting to one hundred seventy-five dollars actual damages and twenty-five dollars attorney's fee.
Upon the verdict of the jury, the circuit court entered a judgment for plaintiffs sustaining the attachment, and condemning the fund to the payment of the debt in the sum of thirty-eight dollars and twenty cents, and, of course, rendered a judgment for said amount, which was not contested. From this judgment the defendant in attachment appeals here.
At the threshold of this case, counsel for appellees, plaintiffs in the court below, inserted a paragraph in his brief insisting that, inasmuch as the judgment of the lower court in appellees' favor was for less than fifty dollars, the defendant had no right of appeal under our statute, and that this court, therefore, was without jurisdiction. He did not make a motion to dismiss the appeal.
Appellant's reply to this contention was that the counterclaim for damages filed under this statute on the attachment issue, which claim was adjudged against appellant in the lower court, constituted the amount in controversy on the trial of the attachment issue.
Hemingway's Code, section 162 (Code of 1906, section 170), provides for the traverse of the grounds of attachment by the defendant, and, in case the defendant shall succeed, the jury shall assess damages against the plaintiff for wrongfully suing out the attachment. The next section provides for the trial of the attachment issue, and, if adjudged for the defendant, that the attachment be discharged and judgment rendered against plaintiff and his sureties for the actual damages found by the jury, to which damages may be added a reasonable sum as an attorney's fee.
It is manifestly plain that the section mentioned above authorizes the defendant in an attachment suit on the trial of the attachment issue made up to file a counterclaim for actual damages and attorney's fee. In other *Page 268 words, it is a countersuit for actual damages, liquidated or unliquidated, on the part of the defendant against the plaintiff, which is permitted by the statute.
Section 66, Hemingway's Code (section 86, Code of 1906), provides for appeals from a court of the justice of the peace to the circuit court, and then provides for appeals in such cases to the supreme court, "where the amount in controversy exceeds the sum of fifty dollars."
The amount in controversy upon the attachment issue in the present case was for two hundred dollars less the judgment of thirty-eight dollars and twenty cents in favor of plaintiffs or one hundred sixty-one dollars and eighty cents, which amount the defendant lost by the judgment of the lower court, and which amount is in excess of fifty dollars; therefore the defendant is entitled to appeal here, as would the plaintiffs have been, had the judgment been adverse to them for more than fifty dollars, as calculated above.
We hold, therefore, that, where there is a counterclaim interposed, authorized by law in suits arising in a justice of the peace court for an amount exceeding fifty dollars, after deducting from said counterclaim the amount of the judgment on the debt issue in favor of the plaintiff, then the defendant would be entitled to an appeal to the supreme court. In other words, the opposing claims may be considered in determining the amount in controversy. The rule applicable is well stated in 3 C.J., sections 221 and 222, pp. 417 and 418; also in point here are the cases of John B. Ryan v. John C. Bindley, 1 Wall. 66, 17 L.Ed. 559 and 560, and Dushane et al. v. Joseph Benedict,120 U.S. 630, 7 S.Ct. 696, 30 L.Ed. 810, which cases hold, in principle, that this court has jurisdiction of the appeal in this case.
On the merits of the appeal, we are constrained to say that the truth, in short, is that there was no evidence proving, or tending to prove, that the defendant had concealed property of any kind in any manner, nor that they had refused to apply it to the payment of his debt, *Page 269 and the same is true as to the assignment of any part of his property of any kind with intent to defraud his creditors. There was likewise no proof that he had undertaken to convert his property in any manner with intent to place it beyond the reach of his creditors, nor was there any proof tending to show that he fraudulently contracted the debt or incurred the obligation on which suit was brought. There is no right of attachment in this state simply on the ground that the debtor owes the debt, and obstinately, for whatever reason, neglects or fails to pay it promptly. These grounds of attachment must be proved.
All the proof in this case was that the debt ran for a long time; that small payments only were made on it twice; and that the officials of the railroad company for whom he worked threatened him with discharge if he did not pay this debt, which he, in the main, ignored. The statement of his earnings and expenses are in a measure developed. He was an extra fireman. There was nothing developed in his examination tending to prove any one of the grounds of attachment. There was some incompetent proof as to what was termed, before the jury, a "bad check" for seven dollars and fifty cents payable to the Gem Café, which, although not honored by the bank, the defendant insisted that he had sufficient funds on deposit at all times to pay same. Why the bank turned the check down is not shown or known. It could have been because it was indorsed on the back of the "Gem Restaurant" instead of the payee, the "Gem Café." At any rate, the check transaction had nothing to do with the attachment issue in this case, and shed no light upon the issue involved.
As to the fifth ground of attachment, this court holds that there must be both a concealment and an unjust refusal to apply to the payment of his debts. Roach v. Brannon, 57 Miss. 490. As to the eighth ground of attachment, this court holds that an intent to defraud must exist at the time the debt is created in order to authorize *Page 270 attachment on that ground. See 6 C.J., 89K; Hughes v. Lake,63 Miss. 552. There must be the purpose or intent to defraud on the part of the debtor contracting the debt to sustain this ground of attachment. We are at a loss to know how it resulted that the plaintiffs won their suit in this case, unless it was because of the "bad check" statement erroneously admitted in evidence by the court below, which was not only prejudicial, but did not tend to sustain any one of the grounds of attachment.
The court below should have granted the defendant a peremptory instruction on the attachment issue, and should have submitted only the question of actual damages and attorney's fee to the jury.
We are remanding the case to the court below in order that a writ of inquiry may issue and a jury be impaneled to assess the actual damages and settle whether or not attorney's fee also will be allowed the defendant for the wrongful suing out of this attachment.
Reversed and remanded.