Ainsworth v. Blakeney

• Decision Date: 16 December 1957
• Docket Number: No. 40601,40601
• Citation: 232 Miss. 297,98 So.2d 880
• Parties: Burnham AINSWORTH et al. v. Catherine BLAKENEY.
• Court: Mississippi Supreme Court

Page 880

98 So.2d 880

232 Miss. 297

Burnham AINSWORTH et al. v. Catherine BLAKENEY.

No. 40601.

Supreme Court of Mississippi.

Dec. 16, 1957.

Wells, Thomas & Wells, Charles Clark, Jackson, for appellant.

Russell & Little, Mage, for appellee.

HALL, Justice.

On September 9, 1952, Martin B. Strickland, Jr., purchased an International tractor from Taylorsville Equipment Company for a total purchase price of $4,368, and executed to the company a titel retention note for the sum of $2,287.92 representing a balance due on the purchase price, which was payable in monthly installments of $95.33 per month due on the 15th day of each month thereafter for a period of 24 months, which was assigned by Taylorsville Equipment Company to International Harvester Company, and which was in turn assigned by that company to International Harvester Credit Corporation. On December 15, 1952, Strickland was in default in the payment of his monthly installments and he executed a bill of sale for said tractor to Mrs. Catherine Blakeney, which bill of sale provided that the same was subject to the conditional sale note against the tractor. On that date the husband of the grantee paid the sum of $187.78, which represented the amount then due.

On March 24, 1954, J. C. Bass, a collector for International Harvester Credit Corporation, went to see Strickland to collect other payments which were in default and Strickland was unable to pay the same and gave to Bass a written agreement transferring and surrendering the said tractor to International Harvester Credit Corporation, which fully authorized the corporation to repossess the tractor and to sell the same at public or private sale without notice. J. B. Ainsworth was present at the time the repossession agreement was executed by Strickland and Strickland told Bass that the tractor was in possession of Mrs. Blakency. They drove to the Blakeney home and found no one there. This was in the afternoon. That night Bass went to Ainsworth's home and asked Ainsworth to go with him to repossess the tractor and they returned to the Blakeney home at about 8 or 9 p. m. on the same date and still found no one there but the tractor was parked by the side of the road and Bass cranked the tractor and left with it, Ainsworth driving Bass' car. They went by Ainsworth's home which is situated in Smith County where the Blakeneys lived, and Ainsworth told Bass that he could not take care of the tractor at his home but would have to put it in his garage at Bay Springs in Jasper County, so Bass drove the tractor on into Jasper County and stored it for the night in Ainsworth's garage. Incidentally, Ainsworth owned and operated a sales agency for International tractors at Bay Springs.

On the following morning Blakeney and his wife came to the sales agency at Bay Springs, having followed the tractor by the imprint of the tracks which it had made along the road, and they demanded possession of the tractor. Ainsworth explained to them that Bass would return that day and requested them to wait until his return, but this they declined to do and Mrs. Blakeney got on the tractor and was about to crank it and drive it away when Mr. Ainsworth removed the coil wire. Thereupon Mr. and Mrs. Blakeney left and later on the same day Mrs. Blakeney filed an affidavit in replevin against Burnham Ainsworth and J. C. Bass in the Circuit Court of Smith County. No writ was issued on this affidavit. On the same day J. C. Bass returned and hired a truck to remove the tractor from Ainsworth's premises and the tractor was carried by this truck to Collier Implement Company and stored at its place of business in Forest, Mississippi.

On April 19, 1954, Mrs. Blakeney made another affidavit in replevin and filed the same with the circuit clerk of Smith County for possession of the tractor, alleging that it was wrongfully detained by Burnham Ainsworth, a resident citizen of Smith County, Mississippi, Hall Lee, a resident citizen of Forrest County, Mississippi, J. C. Bass, a resident citizen of Forrest County, Mississippi, and Collier Implement Company, a corporation domiciled at Forest in Scott County, Mississippi. A writ of replevin was issued on this affidavit and was served on Collier Implement Company in Scott County on the same day and the tractor was releases to Mrs. Blakenecy upon a bond of $2,000 with Arthur Blakeney, J. D. Blakeney and W. M. Coursey, as sureties, since which time the tractor has been in her possession. The International Harvester Credit Corporation intervened and filed a motion to transfer the case from the Circuit Court of Smith County to either Jasper or Forrest County, challenging the jurisdiction of the Circuit Court of Smith County. This motion was overruled on December 20, 1954.

The plaintiff filed a declaration which followed the allegations of the affidavit in replevin and also claimed damages in the amount of $250 for attorney's fees and in the amount of $300 for her loss of time and expenses incurred in locating the property and preparing the case for trial. Pleas of not guilty were filed by Burnham Ainsworth, J. C. Bass, Hall Lee and Collier Implement Company.

The case finally came on for trial and was submitted to a jury which returned a verdict that the plaintiff Catherine Blakeney retain possession of the tractor in question and which allowed her damages for loss of time in the amount of $150 and attorney's fees in the amount of $150, and judgment was entered accordingly, after which separate motions for a new trial were filed by the several defendants and the same were overruled by the court, with the exception that the court granted a peremptory instruction as to Hall Lee, there having been no evidence whatever that he was in any way connected with the transaction. From the judgment entered all of the other defendants appealed.

Section 2843, Code of 1942, provides that the action of replevin may be instituted in the circuit court of a county in which the defendant or one of several, or the property, or some of it, may be found. The record shows without dispute that at the time of the institution of this suit Burnham Ainsworth did not have possession of or claim any interest whatsoever in the tractor. The most that the evidence shows is that he had been a mere temporary bailee of the tractor for a small portion of two days: that he was not claiming any right of possession and had nothing to do with sending it away from his place of business located at Bay Springs in Jasper County, and that it was simply stored at this place of business overnight. The appellee bases her entire claim of venue in Smith County upon the fact that Burnham Ainsworth lived a short distance from Bay Springs over across the line in Smith County. The tractor was in possession of Collier Implement Company in Scott County at the time the suit was filed and the writ of replevin sued out and served.

In the case of Ainsworth v. Smith, 157 Miss. 202, 206, 127 So. 771, 772, we said: 'Appellant's contention that the court erred in directing a verdict for the other appellees than Smith is without merit. The evidence shows, without conflict that at the time the writ of replevin was sued out and served, the appellee Smith had exclusive possession and control of the stock. Replevin lies alone against the party in possession at the time the action is begun. McCormick v. McCormick, 40 Miss. 760; Griffin v. Lancaster, 59 Miss. 340; Vaughn v. Huff, 99 Miss. 110, 54 So. 837.'

In the case of Cook v. Waldrop, 160 Miss. 862, 873, 133 So. 894, 896, we cited Ainsworth v. Smith, supra, and said: 'The appellant also assigns as error the action of the court in directing a verdict for all the appellees except the sheriff Waldrop. There is no merit in this assignment. Adopting (with the change of name only) the language of the court upon this point in the case of Ainsworth v. Smith, supra: 'The evidence shows, without conflict, that at the time the writ of replevin was sued out and served, the appellee, Waldrop, had exclusive possession and control of the stock. Replevin lies alone against the party in possession at the time the action is begun."

Since Burnham Ainsworth was not in possession of the property or claiming the right of possession thereto, and since the property at the time of suing out the writ of replevin was in the sole possession of Collier Implement Company in Scott County, we think that Ainsworth was not a proper party.

According to the record in this case the motion for a change of venue or to transfer the case to either Scott County or Forrest County was filed only by International Harvester Credit Corporation as intervenor. No motion was filed by Bass. Collier Implement Company is a corporation and under our general statute on circuit court venue, ...