Evans v. Junius Hart Piano House
| Citation | 106 So. 9,140 Miss. 467 |
| Decision Date | 23 November 1925 |
| Docket Number | 25209 |
| Court | Mississippi Supreme Court |
| Parties | EVANS v. JUNIUS HART PIANO HOUSE. [*] |
1 SALES. Right of plaintiff to property seized held not shown by evidence.
Right of plaintiff in replevin to possession of the piano levied on, on which plaintiff has the burden of proof, is not shown the conditional sales contract and declaration describing the one sold as a J. H. piano of a certain number, the affidavit writ, and return giving no number, and there being no evidence aliunde to prove identity.
2. SALES. Plaintiff must show amount due, where article was sold conditionally.
Seller bringing replevin for piano on conditional contract must show amount, if any, due on the contract.
3. REPLEVIN. Form of verdict for plaintiff stated.
Verdict in replevin, if for plaintiff, should not be for the amount of defendant's debt, but should find for plaintiff the property, describing it, and its value or the value of plaintiff's interest therein.
4. REPLEVIN. Form of judgment for plaintiff, where defendant gave bond.
Judgment in replevin, if for plaintiff, where the officer, after taking the property, surrendered it to defendant on bond, should, under Code 1906, Section 4233 (Hemingway's Code, section 3062), be in the alternative for restoration thereof, or for its value or the value of plaintiff's interest therein, if a limited one.
HOST. J. Q. LANGSTON, Judge.
APPEAL from circuit court of Marion county, HON. J. Q. LANGSTON, Judge.
Action by the Junius Hart Piano House against Lucy Evans. Judgment for plaintiff, and defendant appeals. Reversed and remanded.
Reporter's Note:--Brief for appellant not available to reporter.
Reversed and remanded.
R. H. Dale, for appellee.
Appellant complains that we did not show that she owed anything, or that there was a balance due on the contract or note sued on. When we introduced our note or contract, that was evidence of the debt itself, and if there was nothing due on it, it was up to the maker to file a plea of payment, and up to the appellant to prove that such had been paid. Such was not the case in this instance. No plea of payment was ever filed, and when we introduced our note or contract, we made a prima-facie case that the appellant was indebted to the appellee, and then it was up to her to show that no payment was due.
This suit was instituted by filing an affidavit for a writ of replevin, which writ was issued and placed in the hands of the sheriff for execution, and was by the sheriff executed by levying upon the piano in question, taking the same into his possession, and afterwards releasing the same to appellant upon her executing a bond. Afterwards, suit in assumpsit was filed, demanding judgment for the balance due on said contract, and asking that the piano in controversy be condemned to be sold, and the proceeds of said sale be applied to the payment of said judgment. No plea whatever was filed to the declaration to the effect that the contract or note had been paid, but only a plea of not guilty in the suit of replevin.
As before stated, if there was nothing due on the note or contract, it was up to the appellant to plead payment, and show that the note or contract, had been paid, as that is a matter of defense. When we introduced our note or contract, we made out a prima-facie case, and we did not have to show by testimony or otherwise that the note was still due and unpaid, as it was up to the appellant to show that it had been paid. She did not do this, and the lower court was right in granting a peremptory instruction for appellee, and the case should, therefore, be affirmed.
Rawls & Hathorn, in reply for appellant.
The court will bear in mind that this is a replevin suit. No plea can be filed except "not guilty" and this plea puts in issue and makes it incumbent upon appellee to prove: (1) That it accepted or approved the contract of sale and delivered the piano No. 25005, or certainly that it delivered the piano; (2) that appellant breached the contract, by failing to make the monthly payments as stipulated, and by reason of which breach appellee is entitled to the immediate possession of the piano; (3) that the piano levied upon is the one sold and delivered under the contract No. 25005, and there is a balance due and unpaid on the contract.
We respectfully insist that appellee has not proved any of the above vital issues to its case, and, therefore, having wholly failed to make any kind of proof in the case appellant is clearly entitled to a reversal and judgment here. Appellee has wholly failed to identify the property, and is, therefore, not entitled to judgment for the possession of the same. Brunson v. Carriage Co., 93 Miss. 795, 47 So. 377; and Dennis v. Robinson, 104 Miss. 594, 61 So. 597, on question of identity of property.
We submit that neither the verdict of the jury nor the judgment in this case are responsive to the pleadings, nor are they such verdict and judgment as can be rendered in a replevin suit. The verdict is a money verdict, and the judgment is a money judgment, and neither can stand in a replevin suit. Myer v. Warner, 64 Miss. 610, 1 So. 837; Whittaker v. Goodwin, 97 Miss. 665, 53 So. 413.
We, therefore, respectfully submit that for these reasons the case be reversed, and because appellee failed to make out any kind of right to the possession of the property, we submit that Aunt Lucy is entitled to a judgment in this court, and such judgment as she should have had in the lower court.
On the 10th day of January, 1924, Junius Hart Piano House, Limited, made an affidavit that one Junius Hart piano and stool of the value of four hundred dollars, property of the said piano house, was wrongfully detained by the defendant, Lucy Evans, and that said piano house was legally entitled to the immediate possession; and on the same day a writ of replevin was issued commanding the officer to take one Junius Hart piano and stool, and on the same day the sheriff made the following return:
On April 30, 1924, before the term of court to which the writ was returnable, the second Monday of May, 1924, the Junius Hart Piano Company filed its declaration presumably in a replevin suit, though it is very difficult to determine just what kind of action the declaration was intended to represent, but it charged, in substance, that Lucy Evans was indebted to it in the sum of four hundred dollars for one Junius Hart piano, No. 25005, and that she executed a contract to the said Junius Hart Piano House, Limited, for said amount, whereby she agreed to pay twenty-five dollars cash and the balance at the rate of twelve dollars and fifty cents per month on the 12th day of each month; that the contract provided that the title of said piano should...
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