Ferris v. Hawkins, 53384

• Decision Date: 18 August 1982
• Docket Number: No. 53384,53384
• Citation: 418 So.2d 811
• Parties: James S. FERRIS v. C. H. HAWKINS, Sr., d/b/a Mid-State Motor Company.
• Court: Mississippi Supreme Court

Page 811

418 So.2d 811

James S. FERRIS v. C. H. HAWKINS, Sr., d/b/a Mid-State Motor Company.

No. 53384.

Supreme Court of Mississippi.

Aug. 18, 1982.

Morgan & Morgan, Clarence E. Morgan, III, Kosciusko, Eaves & Eaves, G. Jyles Eaves, Louisville, for appellant.

John E. Shaw, Kosciusko, for appellee.

Before PATTERSON, BOWLING and DAN M. LEE.

DAN M. LEE, Justice, for the Court:

This is an appeal from the Circuit Court of Attala County, sitting without a jury, wherein James S. Ferris, plaintiff/appellant, sought to replevy a 1978 International Harvester truck and a 1979 Trailmobile trailer from the possession of C. H. Hawkins, Sr., d/b/a Mid-State Motor Company, defendant/appellee. Hawkins had obtained possession of the equipment by paying off an alleged lien held by the Birmingham Trust National Bank which resulted from the equipment being pledged as security by Ferris' agent for a bank overdraft. The Birmingham Trust National Bank assigned its security interest in the equipment to Hawkins upon payment of an amount equal to the overdraft. At the conclusion of the hearing, the trial judge directed a verdict for a monetary judgment only in favor of Hawkins in the amount of $8160. We reverse.

In December 1978 appellant executed a power of attorney appointing Forrest Lee Ferris, no relation to appellant, his agent and attorney in fact. Appellant, a New York resident, in connection with the power of attorney, issued Ferris $22,000 to disburse as he saw fit in the purchase and operation of the equipment in controversy. The equipment was evidently to be leased by Alabama Western, an Alabama corporation, with whom Forrest Ferris was also associated.

Ferris opened an account with the Birmingham Trust National Bank in appellant's name. A check from Alabama Western, payable to appellant and endorsed for deposit only, was deposited into this account. The check proved to be of no value which resulted in an $8160 overdraft to appellant's account. Ferris apparently pledged appellant's equipment to secure this overdraft. Appellant denied any knowledge of the check from Alabama Western or the account at the Birmingham Trust National Bank. Appellant also denied he authorized Ferris to pledge his equipment as security.

Appellee contacted appellant in February 1979 concerning the removal of his (appellant's) equipment from Alabama to Mississippi. When appellee discovered the lien held by Birmingham Trust National Bank, he related this information to appellant. Appellee paid the Birmingham Trust National Bank to have the liens extinguished from various pieces of equipment including that owned by appellant. Appellant was notified of the payment to the bank and relocation of the equipment in Mississippi. The Birmingham Trust National Bank assigned appellee its security interest in the equipment owned by appellant. Appellant subsequently executed a power of attorney appointing appellee his agent and attorney in fact to obtain title to the equipment in Mississippi. A Mississippi title was subsequently obtained which listed appellee as a second lienholder.

At the conclusion of the hearing, the trial judge granted appellee's motion for directed verdict and monetary judgment, but did not dismiss the replevin or decide the question of possession of the truck and trailer. An order was entered accordingly.

1. Did the trial court err in granting appellee a monetary judgment?

Mississippi Code Annotated section 11-37-129 (Supp.1981) provides:

If the judgment be for the defendant, the plaintiff and the sureties on the plaintiff's bond shall restore to the defendant the property, if to be had, or pay to him the value thereof and any damages for the wrongful suing out of the writ, as assessed upon writ of inquiry. If the defendant shall have made bond for such property, he and his sureties shall be fully discharged and he may recover any damages from the plaintiff and his sureties for the wrongful suing out of said writ. In case the plaintiff make default in prosecuting the replevin action, or be nonsuited, after seizure under writ of replevin, the defendant may have a writ of inquiry to assess the value of the property, or the damages sustained by the wrongful suing out of the writ, or both, as the case may be; and like judgment shall be rendered upon the finding as upon an issue found for him.

This Court has interpreted Mississippi Code Annotated section 11-37-129 (1972) as a possessory action and judgment for money may not be granted except for the wrongful taking, detention, value of the specific property, or damages for wrongful suing out of the writ. In General Motors Acceptance Corp. v. Fairley, 359 So.2d 1386 (Miss.1978), we said:

After a careful consideration of the office of replevin, we have reached the conclusion that the Laws of 1975, ch. 508, do not permit a defendant to file a counterclaim or recoupment except for the specific statutory damages. A replevin action...