Wyatt v. Cole, Civ. A. No. J87-0421(B).

• Decision Date: 13 April 1989
• Docket Number: Civ. A. No. J87-0421(B).
• Citation: 710 F. Supp. 180
• Parties: Howard L. WYATT, Plaintiff, v. Bill COLE, John Robbins, II, J.B. Torrence, Rankin County, Mississippi; Lloyd S. Jones; Wiley Magee; Cindy Jenson; Ernest E. Smith; Simpson County, Mississippi; Ray Roberts; and The State of Mississippi, Defendants.
• Court: U.S. District Court — Southern District of Mississippi

710 F. Supp. 180

Howard L. WYATT, Plaintiff, v. Bill COLE, John Robbins, II, J.B. Torrence, Rankin County, Mississippi; Lloyd S. Jones; Wiley Magee; Cindy Jenson; Ernest E. Smith; Simpson County, Mississippi; Ray Roberts; and The State of Mississippi, Defendants.

Civ. A. No. J87-0421(B).

United States District Court, S.D. Mississippi, Jackson Division.

April 13, 1989.

Douglas M. Magee, Mendenhall, Miss., Jim Waide, Tupelo, Miss., for plaintiff.

John Robbins, II, Brandon, Miss., Jerome B. Steen, Whitman B. Johnson, III, Edward J. Currie, Jr., Jackson, Miss., Terrell

Stubbs, Mendenhall, Miss., Bruce B. Smith, Magee, Miss., Wayne E. Ferrell, Jr., Leslie Scott, Asst. Atty. Gen., Scott Levanway, Jackson, Miss., for defendants.

MEMORANDUM OPINION AND ORDER

BARBOUR, District Judge.

The Court has before it various motions to dismiss and for summary judgment submitted by the Plaintiff and Defendants. The Court reads the pending motions to dismiss as motions for summary judgment pursuant to Federal Rule of Civil Procedure 12(b). The defenses and claims presented are each intertwined with the claim of the Plaintiff for a declaration that the replevin with bond statute of the State of Mississippi is unconstitutional. The Court has heard argument on the motions, reviewed the extensive pleadings, memoranda, affidavits and exhibits submitted by the parties, and finds no continuing question of material fact which might preclude partial summary judgment on this central question. As set forth below, this Court finds that the Mississippi replevin under bond statute, Section 11-37-101 of the Mississippi Code, is contrary to the Constitution of the United States and therefore unenforceable.

I.

Howard Wyatt brings this action under 42 U.S.C. § 1983, 28 U.S.C. § 2201, and pendant state law provisions for abuse of process. His central claim arises from an unjustified replevin by a former partner, Bill Cole. On July 25, 1986, Bill Cole submitted a Complaint in Replevin to the Circuit Court of Simpson County, Mississippi, accompanied by a Plaintiff's Replevin Bond of $18,000. A Writ of Replevin was then issued by Cindy Jenson, a deputy of Wiley Magee, Circuit Clerk of Simpson County. On July 28, Circuit Judge Jerry Yeager signed an Order directing the Circuit Clerk to issue a writ of replevin directed to the Sheriff of Simpson County, Mississippi. That writ was executed on July 29th and 30th by the Sheriff of Simpson County and others, who seized 24 head of cattle, a tractor and parts. The writ and a Summons were served on Wyatt on July 31, 1986. On October 3, 1986, Judge Yeager entered an Order dismissing the writ at the cost of the plaintiff, continuing the replevin bond in force, and ordering Cole to

immediately restore to the defendant the property taken from defendant pursuant to plaintiff's complaint in replevin and the writ of replevin if said property is to be had, or, if said property is not to be had, to pay unto defendant the value thereof and any damages in this cause for the wrongful suing out of the writ of replevin by plaintiff as assessed upon writ of inquiry.

The action in the Circuit Court was dismissed without prejudice on September 3, 1988, although Cole had not complied with the October 3, 1986, Order.

While a question exists as to the initial validity of the writ under the hand of a deputy court clerk without an order from a judge specified in the statute, the writ was not executed until a judge had ordered that such a writ be issued, and any defect in statutory procedure was then cured. It is uncontested that the writ was issued on a complaint as described in the statute, that the complaint was brought before a judge described in the statute, that the judge issued an order directing the issue of a writ, that the writ issued, that it was executed following judicial signal, and that Wyatt was deprived of property as a result.

II.

The Mississippi replevin under bond statute is set forth in Section 11-37-101 of the Mississippi Code. It provides that an action in replevin will be commenced:

If any person, his agent or attorney, shall file a declaration under oath setting forth:

(a) A description of any personal property;

(b) The value thereof, giving the value of each separate article and the value of the total of all articles;

(c) The plaintiff is entitled to the immediate possession thereof, setting forth all facts and circumstances upon which the plaintiff relies for his claim, and exhibiting all contracts and documents evidencing his claim;

(d) That the property is in the possession of the defendant; and

(e) That the defendant wrongfully took and detains or wrongfully detains the same; and shall present such pleadings to a judge of the supreme court, a judge of the circuit court, a chancellor, a county judge, a justice of the peace or other duly elected judge, such judge shall issue an order directing the clerk of such court to issue a writ of replevin for the seizure of the property described in said declaration, upon the plaintiff posting a good and valid replevin bond in favor of the defendant, for double the value of the property as alleged in the declaration, conditioned to pay any damages which may arise from the wrongful seizure of said property by the plaintiff....

(Emphasis supplied by the Court.) Miss. Code Ann. § 11-37-101 (1988 Supp.) The judge is given discretion only to determine proper valuation of the property to be seized. See Miss.Code Ann. § 11-37-103. The writ of replevin commands the sheriff or other lawful officer to immediately seize the property described in the writ and deliver it to the plaintiff and to summon the defendant to appear before the Court. Miss.Code Ann. § 11-37-109. A trial of a replevin action may be had at any time following seizure or summons, so long as five days' process have been had upon the defendant. Miss.Code Ann. § 11-37-125. If the defendant prevails, the plaintiff and his sureties are to restore any seized property or to pay the value of such property in damages for wrongful suit.

III.

The Fourteenth Amendment of the Constitution of the United States provides, in part, that

No State shall ... deprive any person of life, liberty or property, without due process of law....

U.S. Const.Amend. 14, § 1. The Due Process Clause has been applied by the Supreme Court of the United States to prevent the taking of property both in replevin and by garnishment without sufficient process. See Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); North Georgia...