Ainsworth v. Smith

• Decision Date: 14 April 1930
• Docket Number: 28582
• Citation: 127 So. 771,157 Miss. 202
• Court: Mississippi Supreme Court
• Parties: AINSWORTH v. SMITH et al

127 So. 771

157 Miss. 202

AINSWORTH v. SMITH et al

No. 28582

Supreme Court of Mississippi

April 14, 1930

Division B

1 ANIMALS. Tick eradication. Wrongful seizure. Damages. Wrongful seizure of stock for purpose of dipping for eradication of cattle tick entitled owner to damages (Tick Eradication Law).

Tick Eradication Law (Laws 1926, chapter 265), though conferring on officers and agents of Live Stock Sanitary Board the right to legal possession of stock for purpose of dipping them for the eradication of cattle tick, does not authorize a seizure without proper writ therefor.

2 REPLEVIN. Unlawful seizure of stock. Sheriff. Directed verdict.

Owner of live stock unlawfully seized for purpose of dipping them was entitled to directed verdict against sheriff in replevin.

3 REPLEVIN. Unlawful seizure of stock. Damages. Instruction. Refusal to submit question of damages as against sheriff because of unlawful taking and detention of stock for purpose of dipping held erroneous (Hemingway's Code 1927, section 3267).

Code 1906, section 4233 (Hemingway's Code 19227, section 3267), provides that in case plaintiff in replevin has given bond for property, the judgment shall be that he retain it and recover damages assessed for wrongful taking and detention, or wrongful detention.

4. REPLEVIN. Right of action. Party in possession.

Replevin lies alone against party in possession at time action is begun.

HON. W. L. CRANFORD, Judge.

APPEAL from circuit court of Jasper county, Second district HON. W. L. CRANFORD, Judge.

Action by George P. Ainsworth against John Smith and others. From the judgment, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Collins & Collins, of Laurel, for appellant.

If the plaintiff had given bond for the property, the judgment shall be that he retain it, and that he recover of the defendant the damages assessed for the wrongful taking and detention, or wrongful detention, as the case may be.

Section 4233 of the Code of 1906, section 3062, Hemingway's Code of 1917.

It was a question for the jury to pass upon as to whether or not John Smith wrongfully took said stock.

If there was wrongful taking and detention, and this taking and detention was characterized by fraud, malice, oppression, or wilful wrong on the part of appellant, punitive damages may be awarded.

Heard v. James, 49 Miss. 236.

Appellees went upon appellant's premises and took his mule without a writ. It was necessary to have a writ. D'Acquilla v. Anderson et al., 120 So. 434; Byrd v. Welch, 91 So. 568.

J. A. McFarland, of Bay Springs, for appellees.

In the absence of fraud, oppression, malice or wilful wrong punitive damages nor attorneys fees are assessable against appellee under the facts and circumstances in this case.

Thornton v. Gardner, 99 So. 131; Ill. Cent. R. Co. v. Brockhaven Mach. Co., 71 Miss. 663, 16 So. 252.

OPINION

Anderson, J.

Appellant brought this action of replevin in the circuit court of Jasper county, against appellee, to recover possession of two mules and a Jersey cow. There was a trial, resulting in a judgment in favor of appellees George Downs, Truman Pitman, and Ben Moffett, and against the other appellee, John Smith, for the recovery of the mules and the Jersey cow; and from that judgment appellant prosecutes this appeal.

Appellant complains of the action of the court in refusing to instruct the jury, as requested by appellant, to return a verdict against appellee John Smith; and also in refusing to submit to the jury by appropriate instructions, requested by appellant, the issue of damages which appellant claimed he had suffered because of the unlawful detention of the property sued for. And appellant complains, further, of the action of the court in directing a verdict for the other appellees Downs, Pitman, and Moffett.

In considering these questions, it is only necessary to set out the case which appellant's evidence tended to establish.

Appellee John Smith was sheriff of Jasper county at the time of the occurrences out of which this action arose. The other appellees, Downs, Pitman, and Moffett, were the agents of the Live Stock Sanitary Board. The appellees were engaged, under chapter 265 of the Laws of 1926, in cattle tick eradication in Jasper county. Appellant had refused to dip his two mules and Jersey cow. The appellees Downs, Pitman, and Moffett, as agents of the Live Stock Sanitary Board, thereupon demanded possession of the stock for the purpose of dipping. Appellant refused to comply with that demand. The next day after such demand, all four appellees appeared on appellant's farm where he was at work plowing, and without a writ of any character for the possession of the mules and cow, forcibly took possession of them, over appellant's protest. The stock was then taken to Bay Springs, one of the county seats of Jasper county, and there put in a pound, which pound was under the control of appellee Smith, as sheriff of the county. After the stock was so impounded, the other appellees had no further possession or control thereof. The evidence on behalf of appellee Smith tended to show that he had no part whatever in the taking of the stock from...