
    R. J. McLin & Company v. J. T. Worden.
    [55 South. 358.]
    1. Foreign Judgment. Certification. Evidence. Attachment. Code 1906, section 171. Construction of statute.
    
    A judgment recovered in another state cannot be proved or admitted in'the courts of this state as evidence of the fact, until there has been a compliance with section 905 of the Revised Statutes of the United States.
    2. Section 171, Code 1906. Attachment.
    
    Under section 171, Code 1906, a defendant is entitled to have his damages assessed for the wrongful suing out of a writ of attachment, if the question of indebtedness be decided in his favor, although the grounds upon which the attachment was sued out were not contested by him and is not compelled to bring a new and independent suit on the bond.
    3. Supreme Court. Construction of statutes.
    
    Where a statute has been reenacted after being construed by the supreme court, such construction will be adhered to by that court.
    Appeal from the circuit court of Panola county.
    Hon.- W. A. Roane, Judge.
    Suit by R. J. McLin & Company against J. T. Worden.
    Prom a judgment for- defendant, plaintiff appeals.
    The facts are as follows:
    This suit was based upon a foreign judgment obtained by appellants against appellee in Wolfe county, Ky. The suit was begun by attachment in the justice court upon a certified copy of said judgment. Alias writs of attachment and garnishment were issued and process served upon the defendant. On the return day defendant filed a plea in abatement. The Bank of Sardis, summoned as garnishee, answered, admitting' its indebtedness to the defendant. On the trial the attachment was sustained, and the defendant (appellee here) failing to make any defense to the debt, judgment was rendered against Mm for the amount of tbe debt. On tbe trial in tbe circuit court tbe defendant gave notice of tbe withdrawal of bis plea in abatement, and tbe court awarded a judgment in favor of tbe appellants, sustaining tbe attachment and tbe trial proceeded upon tbe debt issue. Tbe plaintiffs then offered in evidence tbe certified copy of tbe judgment obtained in Wolfe county, Ky.' Defendant objected, and tbe objection was sustained, and judgment entered against tbe plaintiffs (appellants here). Tbe defendant then made a motion for a writ of inquiry to assess damages, which motion was sustained and tbe writ awarded. Appellants assign as error the action of tbe lower court (1) in refusing to admit tbe certified copy of tbe judgment in evidence and (2) in awarding tbe writ of inquiry.
    
      W. E. Boothe, for appellant.
    Tbe main grounds relied upon by appellant for a reversal of this cause, is tbe error of tbe court below in:
    1st. Refusing to admit as evidence upon the part of appellant, tbe certified copy of tbe judgment of tbe Wolfe circuit court, and
    2d. Awarding a writ of inquiry to' assess damages, although appellant’s attachment bad been sustained.
    3d. Tbe court erred in refusing to admit as evidence for appellant, tbe certified copy of tbe judgment of tbe Wolfe circuit court of Wolfe county, state of Kentucky.
    Prior to the adoption of the Code of 1880, section 1622, we find no legislative provision by tbe laws of sister states to be recorded, and such instruments, prior to tbe adoption of section 1622, Code 1880, were to be proven by tbe acts of congress. Revised Statutes of tbe United States, section 905.
    As said by tbe court in tbe opinion rendered in tbe case of Hope v. Hunt, 59 Miss. 174, and relied upon by counsel for appellee in tbe case at bar, “tbe mode of authentication'presented by congress is not exclusive of any other which he states may see proper to adopt, and such statement seems to be borne out by the decision of these states which have prescribed other methods of authentication.” The court, in rendering the opinion in the case of Hope v. Hunt, 59 Miss. 174, seems to have assumed that section 1622, Code 1880, referred to “private writings,” and. upon this assumption based their conclusion. In no other view of the ease am I able to conceive how they could have arrived at the conclusion they did. Just here I desire to call attention to the language of this section, which is in the following words: “Copies of the record of any writing, required or permitted by the laws of this state or any other state or territory of the United States, or by the District of Columbia, shall, when certified by the clerk in whose office the record is kept under his seal of office, be received as evidence in all the courts in this state.” And section 1629, Code 1880, makes the certificate prima facie of the official character of such person, in all courts and proceedings in. the state.
    Sections 1622 and 1629, Code 1880, are identical with sections 1955 and 1973, Code 1906. Nowhere in the said sections are the words “private writings” used, but I do find the language “any writing.” “Any writing” includes both private and judicial papers, decrees or orders, and it was evidently the intention of our lawmakers in adopting into Code 1880, sections 1622 and 1629 to provide for a method of authentication of the writings of sister states, so that the same may be used as evidence in our courts without going to the trouble and expense of obtaining the certificate of the judge of the court, as provided by the act of congress. The judgment sought to be introduced in evidence in the case at bar was a judgment rendered by the Wolfe circuit court of Wolfe county, state of' Kentucky. The question which next presents itself is, does the state of Kentucky “require or permit” judgments or writings of this character to be recorded, and if so, is not such a judgment within the meaning and intention of our statute ?
    If this court should hold that section 1955, Code 1906, refers to any and all writings, “required or permitted” to be recorded by the laws of our sister states, and not to “private” writings alone, then the evidence offered was improperly excluded.
    For the reasons above set forth, it is the contention of appellant that refusing to admit evidence the certified copy of the judgment of the. Wolfe circuit court, as offered by appellant, is such error as to entitle appellant to a reversal of this cause in this court.
    But if I am mistaken in this, and this court should hold that this evidence was properly excluded, appellant is still entitled to a reversal of the judgment of the court below, because,
    2d. The court in awarding a writ of inquiry to assess damages, after appellant had sustained the attachment.
    This court has held in more than one instance, that the awarding of a writ of inquiry to assess damages, under our attachment statutes is purely a statutory provision, and is only allowed, where the issue on a plea in abatement to the attachment is found for defendant (Code 1880, sec. 2429); or where plaintiff voluntarily dismisses its attachment. Code 1880, sec. 2432; Betancourt v. Maduel. 69 Miss. 839, 11 So. Ill; Bonds v. L. Garvey & Go., 39 So. 492.
    In the case of Betancourt v. Maduel, 69 Miss. 839, the court held that, “when a judgment by default on the attachment issue is rendered for plaintiff, but the issue made by plea denying the debt, is found for defendant, thus dissolving the attachment, the defendant is not entitled to a writ of inquiry to assess his damages for the wrongful suing out of the attachment.”
    • The above cited case is exactly on all-fours with the case at bar. Appellee withdrew his plea in abatement, and thereupon a judgment by default was rendered against appellee, sustaining the attachment, but the issue made by the plea denying the debt was found for appellee, upon the refusal of the court to admit the evidence of the debt, the certified copy of the judgment of the Wolfe circuit court.
    Sections 2429 and 2432, Code 1880, under which sections the case of Betancourt v. Maduel, 69 Miss. 839, 11 So. Ill, was decided, are brought forward and are identical with sections 170 and 173, Code 1906, and these two sections are the only statutes we have providing for writs of inquiry to assess damages for defendants in attachment cases. Where no plea is interposed to the attachment, the court must enter a judgment by default, sustaining the attachment, as was done in the case at bar. Code 1906, section 168. Plaintiff must either dismiss his attachment, or the issue raised by a plea in abatement must be found for the defendant to entitle him to this remedy, otherwise the writ is improperly awarded. This is the statutory law, and this is the rule announced by the decisions of this court. This same rule is laid down in the later case of Bonds v. L. Garvey & Go., 9 So. 492. Chief Justice Whitfield in delivering the opinion of the court in this case says, “The whole matter of damages in attachment proceedings is purely statutory, and in the absenqe of a statute providing therefor we do not think the court was correct in allowing damages.” The remedy is “purely statutory” and the case must come within the two statutory provisions, sections 170 or 173, Code 1906, to entitle a defendant to damages, otherwise damages will be improperly awarded. There is no statute providing for the award of damages to a defendant in the court below, where the plaintiff in that court sustains his attachment. On the contrary the statute provides that unless the issue raised by a plea in abatement to the attachment is found for defendant, he is not entitled to have a writ of inquiry to assess his damages. Section 170, Code 1906.
    Nor is the law, as laid down in the Betancourt v. Maduel case, above cited, overruled by the decision of the court in the case of Cassius M. Carrier é Son v. Thomas Poulas et al., 87 Miss. 595. The Carrier-Poulas case is not a case in point with the case at bar, as will appear by a careful study of that case. In fact the opinion of the court as announced by Justice Calhoun shows that he recognizes the rule of law laid down in the former decisions of the court on this point, for in the very first sentence we find his language, “On an issue whether the attachment was properly sued out, Code 166, provides that, when the verdict is for the defendant, he may recover damages. In the case before us, the affidavit being on the ground of non-residence, which could not be denied in this instance, the court allowed a writ of inquiry and awarded damages on the attachment bond, the jury having found on the main issue that there was no debt.” No defense whatever, was made to the attachment in this case, but a special plea was filed by the defendant denying the debt upon which the attachment was sued out and upon this issue the defendants recovered a judgment. As stated in the opinion of the court, the grounds of attachment was that the defendants were non-residents, and this could not be denied in this instance. The plaintiffs in attachment, Carrier & Son, took no judgment sustaining the attachment, but simply joined issue on the speial plea filed by these defendants, Poulas and others. And as stated in the opinion delivered by Justice Calhoun, the main issue tried was the issue of debt raised by defendants’ special plea.
    ' The main issue raised in the case at bar was, whether or not the attachment was properly sued out. Coche v. Kuykendall, 41 Miss.- 65.
    For some reason unknown to appellant, appellee saw fit upon the trial of the case at bar in the circuit court, to .withdraw his .plea in abatement, and appellant thereupon took a judgment against him sustaining the attachment. Sec. 168, Code 1906. This judgment for appellant dissolves the attachment, so there can be no further liability under the attachment bond, as the attachment issue has been fully disposed of by this judgment. Betancourt v. Maduel, 69 Miss. 839,11 So. 111. The debt issue, the next issue to be tried in the circuit in the case at bar, was disposed of after the attachment had been dissolved.
    Again section 166, Code 1892, referred to in the case of Carrier v. Poulas, 87 Miss. 595, and brought forward in section 171, Code 1906, refers to the trial of the issue raised by a plea in abatement, as will be noted by reading the preceding section 165, Code 1892 and section 170, Code 1906. It will be seen by a comparison of the two cases, the case at bar and the Carrier-Poulas case that the two issues tried and questions raised in thé court below, are entirely different. In the one case, the main issue which was presented was, whether or not the attachment was rightfully sued out, in the other case the main issue tried was one raised by the defendant’s special plea denying the debt. This question of issue is recognized by Justice Calhoun in his opinion, and he states and uses the term, “main” issue. Another difference to be noticed in the two cases above referred to, is the fact that in the Carrier-Poulas case, plaintiff in the case beelow did not take a judgment by default sustaining his attachment, which they had the right to do,- as no plea traversing the grounds of the attachment was interposed.
    This case at bar dearly comes within the statutory provisions, relating to attachment cases, and is exactly on all-fours with the case of Betancourt v. Maduel, 69 Miss. 839, 11 So. Ill, which is the law today, as no decision has been rendered by this court overruling the doctrine as laid down in that casé.
    
      In view of the errors of the court below above assigned, we respectfully submit that this cause should be reversed, and remanded.
    
      Shands & Montgomery, for appellee.
    This suit was based upon a foreign judgment. Upon the trial the only evidence of such judgment offered was a certified copy. It is of course hornbook law, that there must have been an authenticated copy, in accordance with the acts of congress. We do not care further to be heard on.this proposition. Of course the court had to exclude the evidence which - of necessity resulted in a peremptory instruction for the defendant on the debt issue.
    As to the second point in appellant’s brief, we must say that we formerly held to the same opinion, that is now presented in the brief of appellant. We did not think that it was proper for the court to order the issuance of the writ of inquiry to assess damages upon the failure of plaintiff in an attachment suit on the debt issue, and strongly urged this view upon the court in our brief in the case of C. M. Carrier & Co. v. Thos. Poulas et al., reported in 87 Miss. 595. The court according to the best of our recollection did not take kindly to that idea at that time, and there has since the decision of that case been no other act of the legislature nor decision in conflict' therewith. The court in deciding the Carrier case said that writ of inquiry should issue, and that it was a waste of time to put the bond in suit. We submit, that as this rule was established on us, we should not be made the subjects of the change of the court in this point.
    We had that case very clearly in mind when we asked for the writ of inquiry in the case at bar.
    We respectfully submit that even if the court should see fit to overrule the Carrier case, supra, that they should affirm the decision of the lower court on the merits, and reverse the case only, so far as the awarding of damages is concerned.
    . Wee see no reason, for the court to change this rule of practice established in the Carrier case, and respectfully submit that the case should be affirmed.
   Mayes, C. J.,

delivered the opinion of the court.

If it be true that a judgment was recovered in the circuit court of Wolfe county, Kentucky, against appellee, it could not be proved or admitted in the courts of this state as evidence of the fact, until there had been a compliance with section 905 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 677). This section of the United States Revised Statutes is found in the appendix to the Code of 1906, at page 1385. ffihe judgment claimed to have been recovered in Kentucky, and offered in evidence to prove the debt, did not comply with the United States statute above cited. The judgment had the attestation of the clerk, but did not have the certificate of the judge, as is required by the United States statutes.

All other questions involved are settled by the case of Carrier v. Poulas, 87 Miss. 595, 40 South. 164. In the 'case just named it was held that under section 171, Code of 1906, a defendant was entitled to have his damage assessed for the wrongful suing out of a writ of attachment, if the question of indebtedness be decided in his favor, although the grounds upon which the attachment was sued out were not contested by him; in short, a defendant is not compelled to bring a new and independent suit on the bond. The above case does not refer to the case of Betancourt v. Maduel, 69 Miss. 839, 11 South. 111, though it seems to be in conflict with it.

The Carrier case, supra, is the later holding of this court, and since the same section of the Code has been re-enacted with the later construction of the court placed upon tlie statute, and without any change being made by the legislature, we feel that it is our duty to adhere to the case of Carrier v. Poulas. Affirmed.  