Carruth v. Easterling

• Decision Date: 11 March 1963
• Docket Number: No. 42582,42582
• Citation: 247 Miss. 364,150 So.2d 852
• Parties: Howard CARRUTH et ux. v. S. J. EASTERLING.
• Court: Mississippi Supreme Court

Page 852

150 So.2d 852

247 Miss. 364

Howard CARRUTH et ux. v. S. J. EASTERLING.

No. 42582.

Supreme Court of Mississippi.

March 11, 1963.

William E. Andrews, Jr., Purvis, for appellant.

Jesse W. Shanks, Purvis, for appellee.

RODGERS, Justice.

S. J. Easterling presented an affidavit in replevin to the Circuit Clerk of Lamar County, Mississippi, and a writ was duly issued on November 15, 1961, in accordance with Sec. 2841, Miss.Code 1942, Rec. The property was described in the affidavit and writ as: One (1) black cow with white mottled face, muley-headed, approximately five (5) years old, with one (1) white-faced calf, approximately eight (8) months old, both of the value of Two Hundred Dollars ($200); and one (1) blackish-red colored bull yearling, approximately two (2) years of age of the value of One Hundred Dollars ($100). The return of the sheriff was filed November 21, 1961, showing the service of the writ and an acceptance of a bond by the sheriff for the property described in the writ of replevin, dated November 17, 1961. A declaration was duly filed by plaintiff in accordance with Sec. 2859, Miss.Code 1942, Rec., on the 19th day of January 1962.

The declaration set out the foregoing proceedings, including plaintiff's demand for the cattle therein described, and also an amendment alleged that 'thereafter and during the early Spring of 1961, the above-described muley-headed black cow with white mottled face, who had been bred by a white-faced bull, gave birth to a white-faced calf with said calf is now about ten (10) months old, and that since the early Spring of 1961, plaintiff was, and now is the owner of and entitled to the immediate possession of said white-faced calf which is situated in Lamar County, Mississippi.'

Defendant filed his answer admitting that on December 15, 1960, plaintiff was the owner of the cattle described in the writ of replevin, but denied he was entitled to the possession thereof, and denied that the plaintiff is now the owner of the calf born to the 'muley-headed, black cow with white-mottled face', admitted to be in the possession of defendant. The defendant claimed ownership of the property.

Defendant also filed a counterclaim asserting that the cattle above-described went upon the land of defendant and grazed upon his crop with knowledge of plaintiff and that the counter-claimant had expended $300 in feeding and caring for the cattle. It is alleged in the answer that plaintiff kept the herd of cattle then on defendant's land; that defendant made demand upon plaintiff for damages caused by the herd to his crop, and that a settlement was had between them, whereby plaintiff gave defendant the mother cow and a red bull described in the writ of replevin in settlement of the damage done by plaintiff's cattle to the crop.

It is admitted that a calf was born to one of the cows, but it was asserted that plaintiff was not entitled to possession of the calf. The defendant demanded that he be awarded possession of the three head of cattle and a judgment against plaintiff for $300.

Plaintiff answered the counterclaim, denied the affirmative allegations and moved the court to strike the counterclaim from the answer. Plaintiff also amended his declaration so as to claim an additional calf which had been born to the muley-headed, black cow since the declaration was filed, and claimed it to be the property of plaintiff, and to assert that it was also unlawfully withheld by defendant.

Motion to strike the counterclaim was overruled. The case then proceeded to trial and at the end of the trial, the judge struck out the counterclaim for damages. The case was submitted to the jury on the question of the right of the possession of the property, and the jury returned a verdict in favor of plaintiff for all of the cattle described in the declaration. Defendant made a motion for a new trial, and when this was overruled, he appealed to this Court.

This suit is the result of a misunderstanding between neighbors, growing out of the following circumstances: Appellant and appellee are resident farmers of Lamar County, Mississippi, and live about two miles apart, a few miles east of Sumrall, Mississippi. Howard Carruth, appellant, had fenced a field of approximately eighty acres near his home. On September 28, 1960, appellant had twenty acres of this field in corn, and Mrs. Alcus Graham had an additional fourteen acres of the field, away from the house, in corn. Appellee was, at the time, the owner of a herd of cattle, which he permitted to run at large 'on the range.' On the aforementioned date, Mrs. Graham was in the process of gathering her corn in the field above-mentioned when she observed twenty or tweny-four head of cattle coming from toward the branch. She made an effort to get the cows out of the field, and although she succeeded in getting some out, most of the herd remained in the field. She saw one cow jump the fence. Mrs. Easterling, wife of appellee, discovered a note on her door stating 'Your cows are in Carruth's field.' Appellee and his son went to see appellant with reference to the cows and both testified that appellant stated that he had gathered his crop and that these cows would not bother anything in the field, and for that reason they did not attempt to get them out. Mrs. Carruth testified, on the other hand, that Mr. Easterling promised to come back and get the cows but he never did. At a later date, Mrs. Easterling went to the constable in an effort to have him recover the cattle. The constable went to appellant and suggested that Mr. Carruth give back to Mr. Easterling one of the cows and also suggested that he keep the old black cow with a white motley face and a reddish bull yearling, in settlement of the damages claimed. He stated that Mrs. Easterling told him to tell this to appellant and that he did, and that he got the Holstein heifer and hauled it back to appellee, but at first appellee said 'Well, we'll just let them have them all. I ain't going to fool with them.' but testified that Mr. Aultman said "I'll put the heifer in my truck and bring her to you,' and we did the next morning, and Mrs. Easterling gave Mr. Aultman $2 to bring it down there', and that appellee agreed to this arrangement. S. J. Easterling and his wife, however, testified that they did not agree to settle the matter by giving to appellant the two cows.

Appellant assigned sixteen alleged errors in the record on which a reversal is sought. He vigorously argued four of these assignments of error: (1) The verdict of the jury is contrary to the overwhelming weight of the evidence and law. (2) The trial judge granted an erroneous instruction. (3) The court erred in permitting an amendment to the declaration to include a calf which had been born to the muley-headed black cow described in the affidavit and writ, since the writ of replevin had been served and the declaration filed. (4) The trial court erred in dismissing defendant's counterclaim and refusing defendant one instruction which permitted the jury to return a verdict in favor of defendant for alleged damages done to defendant's crop and for food given the cows by appellant while the cattle were impounded.

I.

In determining the issues here involved, we consider the assignment of errors in the sequence in which they were presented in the trial court, rather than in the numerical order they are presented for argument.

The first question to be determined is: Did the trial court commit reversible error in permitting an amendment to the declaration so as to claim and include a calf born to the muley-headed black cow, since the writ of replevin was served and the declaration filed?

The record shows in this case that after the defendant had given bond for the cattle involved herein, seized under the writ of replevin, and after the plaintiff had filed his declaration, the mother cow, described as a 'muley-headed black cow with white mottled face' gave birth to the calf described in the amendment of the declaration, hence the plaintiff sought to amend his declaration to include this calf.

Amendments to pleadings are liberally allowed under our court procedure. Sec. 1511, Miss.Code 1942, Rec. Moreover, amendments may be made to the pleadings in replevin actions. See McCarty v. Key, 87 Miss. 248, 39 So. 780; 46 Am.Jur., Replevin, Sec. 107, p. 60.

In 46 Am.Jur., Replevin, Sec. 107, p. 60, the textwriter makes the following statement: 'Where facts have arisen since the commencement of the action and before judgment which would vary the relief to which the plaintiff or defendant would have been entitled at the commencement of the action, such facts may be alleged in an amended petition, answer, or cross petition.'

It has been said that 'The right to amend is as liberally accorded in replevin actions as in other causes. The amendment of pleadings is largely a discretionary matter, and a decision on such an application will not be reversed unless it is shown that there has been a clear abuse of discretion by the trial court. * * * Practically the only limitation upon the power of the court to allow plaintiff to amend the complaint is that a new cause of action cannot be introduced * * *'. 34 Cyc., Replevin, IV, F, 1, a, p. 1489. See also 77 C.J.S. Replevin Sec. 167, pp. 116-117; Kirch v. Davies, 55 Wisc. 287, 11 N.W. 689; Kelly v. Bliss, 54 Wisc. 187, 11 N.W. 488; Cain v. Cody, 3 Cal. 489, 29 P. 778.

It has been said that 'In replevin the court may determine, not only the question of the right of possession, but also the right of property', and although the subject-matter litigated in replevin 'necessarily consists only of property mentioned in the complaint', nevertheless 'the rule does not exclude litigatian in the action of the right to the increase of the disputed property.' 34 Cyc., Replevin, p. 1517.

It is a well-settled rule that the offspring follows the condition of the mother. This rule is expressed in the Latin maxim,...