
    Erkman v. Carnes.
    
      (Jackson.
    
    May 14, 1898.)
    1. Summaey Proceedings. Obtain, when.
    
    Summary proceedings are in derogation of common law, and obtain only when authorized by statute strictly construed.
    Cases cited and approved: Powell v. Fowlkes, 5 Bax., 649; Williamson v. Burge, 7 Heis., 119; Voorheis v. Dickson, 1 Sneed, 348; Wingfield v. Crosby, 5 Cold., 241.
    2. Same. Does not Me for default of officer, when.
    
    A summary- proceeding by mere motion is not an admissible remedy for the default of an officer in failing to execute and make due return of an attachment writ issued by a Justice of the Peace.
    Code construed: g 5979 (S.); § 4942 (M. & V.); g 4167 (T. & S.).
    FROM SHELBY.
    Appeal in error from Circuit Court of Shelby County. J. S. Galloway, J.
    W. A. Duncan for Erkman.
    Turley & Wright for Carnes.
   Wilkes, J.

The only question presented by the record is whether an officer is liable, on motion or in a summary proceeding, where he fails to execute and make due return of an attachment writ issued by a Justice of the Peace. Summary proceedings, being in derogation of the common law, only exist when authorized by statute, and such statutes muse be strictly construed. Powell v. Fowlkes, 5 Bax., 649; Williamson v. Burge, 7 Heis., 119; Voorheis v. Dickens, 1 Sneed, 348; Wingfield v. Crosby, 5 Cold., 241. There is no statute giving authority for a summary proceeding in a case like the present, and the party aggrieved can only resort to his suit or action at law, and is hot entitled to a motion, which is a cumulative remedy. The grounds for summary proceedings before Justices of the Peace are set out in the statute (Shannon, § 5979, subsecs. 1, 2, 3, 4), all of which relate to defaults made in regard to executions. Section 5368 provides a penalty for failing to execute and make return of any process, but, by the express words of the statute, it is confined to process issued from a Court of record, which a Justice’s Court is not.

We are of opinion the judgment of the trial Judge, in dismissing the action for want of jurisdiction in the Justice of the Peace to entertain a summary proceeding under the facts, is correct, and it is affirmed, with costs.  