Garrett v. Carlton
| Citation | 3 So. 376,65 Miss. 188 |
| Parties | B. F. GARRETT v. J. E. CARLTON & SONS |
| Decision Date | 16 January 1888 |
| Court | Mississippi Supreme Court |
APPEAL from the Circuit Court of Panola County, HON. A. T. ROANE Judge.
B. F Garrett sued out an attachment for rent against one Alex. Dolphin and caused the same to be levied on certain cotton.
Thereupon J. E. Carlton & Sons, claiming the cotton by virtue of certain deeds of trust executed to one Minor, trustee, for their benefit, by certain tenants of Dolphin, sued out a writ of replevin to recover possession of the cotton so seized by virtue of Garrett's attachment. With this writ of replevin, Carlton & Son filed a declaration in the usual form setting up that the property distrained was their property and was not the property of Alex. Dolphin.
B. F Garrett appeared and filed an avowry in which he denied the right of plaintiffs to maintain their action, and alleged that Dolphin was "indebted to him in the sum of $ 668.60 for supplies furnished him during the year 1884 for himself and others for whom Dolphin contracted, and for the business of Garrett carried on upon certain premises leased by said Garrett to said Dolphin for said year of 1884;" that such indebtedness was and still is unpaid, and that the cotton seized was raised on the premises so leased, during the year 1884.
There were no further pleadings, and the case was proceeded with to trial. The only evidence introduced on the trial was presented by the plaintiffs and is sufficiently set out in the opinion of the Court. When this evidence was offered there seems to have been no objection; but when plaintiffs had closed their evidence, the defendant stated that he was taken by surprise by such testimony and asked for a continuance, which the Court refused to grant. The jury found for the plaintiffs. The defendant appealed.
Oglesby & Taylor, for the appellant.
1. This cause should be reversed because J. E. Carlton & Sons hold neither the legal title to the property nor the right of possession.
It is well settled that beneficiaries in a trust deed cannot recover property in a suit at law or maintain replevin. Pollard v. Thomas, 61 Miss. p. 152 and Code Section 1317.
2. The court seriously erred in admitting the evidence in relation to damages to crop.
Under proper pleadings such damages, if established, could be recouped against rent and supplies, but certainly not under the pleadings in this case. Defendant filed his proper avowry but plaintiffs filed no plea thereto, gave no notice of any claim for damages and filed no account or bill of particulars. The first intimation of such claim for damages was when they offered to prove such. Certainly they should have filed proper plea to our avowry and given notice of this claim. How, without this, could defendant ever know what claim or defence plaintiffs would assert against defendant's avowry. The ruling of the court admitting such evidence was clearly error. See Code 1880, Sections 1540 and 1554; Maxey v. White, 53 Miss. p. 80; 52 Miss p. 842; 51 Miss. p. 478; Kendrick v. Watkins, 54 Miss. 495.
Taylor & Kyle, for the appellees.
The allegation of a surprise by the proof of damages to the crop is a mere pretense, and the fact that the paper setting out the amount claimed against the rent was only filed on the day of the trial is of no consequence. It need not have been filed at all, and was only filed to satisfy the peculiar notions of counsel on the...
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Frierson v. Mississippi Road Supply Co.
...C. Boadwee, trustee, and an action in replevin to recover possession of the tractor could be brought only by the trustee. Garrett v. Carlton, 65 Miss. 188, 3 So. 376; Pollard v. Thomas, 61 Miss. So, it was undenied that before, and at the time of seizure, the tractor was in the possession o......
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