Eaton v. Hattiesburg Auto Sales Co.

• Decision Date: 11 June 1928
• Docket Number: 27250
• Court: Mississippi Supreme Court
• Parties: EATON v. HATTIESBURG AUTO SALES CO. [*]

117 So. 534

151 Miss. 211

EATON v. HATTIESBURG AUTO SALES CO. ^[*]

No. 27250

Supreme Court of Mississippi

June 11, 1928

Division A

APPEAL from circuit court of Forrest county, HON. R. S. HALL, Judge.

Suit by the Hattiesburg Auto Sales Company against Mrs. C. M. Eaton. Judgment for plaintiff in the county court was affirmed by the circuit court, and defendant appeals.

Affirmed in part, and in part reversed and remanded.

Judgment reversed and case remanded.

Currie & Currie and D. T. Currie, for appellant.

The only transaction binding the parties was the deal made by Mrs. Eaton and Mr. Brannon, as set forth in Mrs. Eaton's testimony, in which the deal was made whereby she turned in her new Dodge at its sales price for the Buick two door and was to pay the difference of three hundred thirty dollars. We submit that the proper venue of the case was in Lamar county Mississippi, and that the county court of Forrest county was without jurisdiction and without authority of law to try said cause. Roberts v. Stewart Bros. (Miss.), 103 So 194; West Point Motor Co. v. McGehee, 122 Miss. 604, 84 So. 690. In these cases the property seized was "located" or "situated" in the county where the action was brought. The situs of the property was fixed and, for the time being, permanent, but in the case at bar the property was not located or situated in the county of Forrest, but was located and situated in Lamar county, Mississippi. At the time the levy or seizure was made the appellant was driving the car, in transit from Hattiesburg to Sumrall.

To hold that this automobile, while being driven by appellant and being seized by the officer only after he had intercepted appellant while traveling on the highway, was located or situated in Forrest county is entirely too narrow a construction to be placed upon the statute. The evidence showed that Mr. Brannon was one of his general salesmen and appellee was bound by the acts of his agents within the scope of his employment, or the apparent scope of his employment, and could not defeat this transaction testified to by Mrs. Eaton by any secret reservations on the part of appellee as to authority within the general scope or apparent scope of the agent, Brannon.

The judgment rendered by the circuit court in hearing the case on appeal from the county court is not only erroneous because it affirmed the lower court's judgment in rendering a personal judgment against appellant and the sureties on her bond for the amount sued for without assessing the value of the property and without there being any evidence in the record at all as to its value. But the authority of the circuit judge in hearing and determining said cause on appeal is fixed by section 5 of the Acts of 1926, which act creates the county court and which section prescribes the duties, limitations and powers of the circuit court in hearing appeals. It was the duty of the court, under the law fixing its power, and the only thing the circuit court could do after affirming it was to remand the cause to the county court for enforcement.

Morris & Wingo, for appellee.

This suit and the entire proceeding was predicated upon section 2437 of Hemingway's 1917 Mississippi Code, which provides the manner in which a seller of personal property may enforce his statutory purchase-money lien thereon. In the instant case, the sheriff of Forrest county, was directed to levy upon such property, real and personal, of the appellant found in his county, and the automobile in question was found in Forrest county, in the possession of the defendant, appellant here, and was therefore levied upon. This court has repeatedly hold that an action in replevin was in rem; and that also mechanic's and materialmen's lien suits and suits in attachment were actions in rem. It cannot be argued with seriousness, therefore, that a purchase-money lien suit is not an action in rem, when the statute plainly and unmistakably provides that after declaration and affidavit has been filed "the clerk of the court shall issue writ of summons and seizure commanding the officer to seize the property and deal with it as in cases of attachment for debt:" Smith v. Mulhern et al., 57 Miss. 591; Barnett v. Ring, 55 Miss. 97; West Point Motor Co. v. McGehee, 122 Miss. 604, 84 So. 690.

The purpose of section 164, Hem. 1927 Code, should be sought in an effort to ascertain the legislative intent. The word "assess" as used in this section could mean nothing more than "to fix or to determine." The statute then is intended to provide a means by which the liabilities of the defendant and sureties may be separately ascertained and fixed but it will be noted that the purpose of the statute fails when the value of the property replevied exceeds the amount sued for, because in this instance the liability of all of the parties is for the full amount sued for. Counsel for appellant contends that there is no proof in the record from which the court could ascertain the value of the automobile at the time levy was made thereupon by the officer. The record in this case shows that the automobile was levied upon on the 23d day of September, 1927, (page 4) and the record further shows that on the following day that the appellant entered into and executed a bond wherein appellant fixed the value of said property at one thousand two hundred fifty dollars, the amount of the bond being two thousand five hundred dollars; it clearly seemed to us that if appellant on the day after the levy fixed the value of the automobile in question at two and one-half times the amount sued for that the county judge was well within his province in ascertaining the value to be in excess of the amount sued for. There is ample proof in the record that the automobile in question had been purchased less than thirty days prior to the date of levy, at and for the consideration of one thousand six hundred forty-five dollars, which was the regular cash selling price of a new Buick automobile of the model in question. It further appears that the appellant had given what appellant was pleased to describe as a new Dodge automobile of the value of one thousand one hundred forty-five dollars, and in addition thereto to actually tender into court on the date of trial the further sum of three hundred thirty dollars. With all of these facts before the county judge can it be reasonably assumed that he acted without evidence as to value?

We submit that the record discloses that appellant has had a fair trial in accordance with the laws of this state and that the whole procedure is regular in every step, and that this cause should therefore be affirmed.

Argued orally by N. T. Currie, for appellant.

OPINION

SMITH, C. J.

This suit was begun in the county court of Forrest county by the appellee to recover a balance of five hundred dollars alleged to be due the appellee on an automobile sold by it to the appellant, and for the enforcement of a purchase-money lien on the automobile.

A judgment was rendered in the county court for the appellee, the case was then carried by the appellant to the circuit court, where the judgment of the county court was affirmed, and the appellant then brought the case to this court.

The evidence discloses that the appellant, shortly after purchasing a Dodge car, decided that she would prefer a Buick, and entered into negotiations with one of the appellee's salesmen for the purchase from it of a Buick. The evidence was to the effect that this salesman, whose name was Brannon, agreed to exchange a Buick with her for her Dodge and the payment by her of three hundred thirty dollars in cash. The Buick was afterwards delivered to her by Brannon, but he declined to accept three hundred thirty dollars as the amount to be paid in cash by her therefor, and the appellee's manager to whom she was referred by Brannon, declined also so to do. Afterwards she had another understanding with Brannon, who, she says, agreed for her to take the Buick; that he would sell the Dodge for the best price obtainable, and she could pay the difference between that and the price of the Buick. To this she did not agree, but told Brannon the most she would pay was three hundred thirty dollars. She tendered and was willing to pay the appellee three hundred thirty dollars in settlement of the amount due it by her.

Brannon denies having agreed to exchange automobiles with the appellant on the payment by her of three hundred thirty dollars, his testimony being to the effect that in their preliminary negotiations nothing was said as to the amount in cash the appellant would have to pay, and that the final negotiations between them ended in Mrs. Eaton's agreement to exchange her Dodge for the Buick, and, in addition, to pay the appellee the sum of five hundred dollars.

When the appellant rested her case, the appellee, in rebuttal introduced its manager, who testified over objection by the appellant that...