General Motors Acceptance Corp. v. Fairley, 50046

Decision Date14 June 1978
Docket NumberNo. 50046,50046
Citation359 So.2d 1386
CourtMississippi Supreme Court
PartiesGENERAL MOTORS ACCEPTANCE CORPORATION v. Tommie Joe FAIRLEY.

Gray, Montague, Jackson & Pittman, James C. Pittman, Jr., Hattiesburg, for appellant.

W. S. Murphy, Lucedale, for appellee.

Before PATTERSON, C. J., BROOM and BOWLING, JJ., and BROWN, Commissioner.

W. W. BROWN, Commissioner, for the Court: 1

This replevin suit was filed by appellant, General Motors Acceptance Corporation (GMAC) against appellee Tommie Joe Fairley (Fairley) in the Circuit Court of Greene County. Fairley answered, and counterclaimed, alleging damages by virtue of being falsely charged with wrongful detention in GMAC's replevin suit. GMAC demurred to Fairley's counterclaim and after the demurrer was overruled, a jury trial resulted in five thousand dollar verdict and judgment in favor of Fairley on his counterclaim. We reverse.

The dispositive issue is: May a defendant to a replevin suit who disclaims possession of the property sought, counterclaim for damages to his reputation, business, and for mental anguish caused by the replevin?

In October of 1973, Thomas Mizelle purchased an auto from U. J. Chevrolet Company by an installment sales contract which was duly assigned to GMAC. Mizelle failed to make timely monthly payments on several occasions and late payments were made by his grandson, Tommie Joe Fairley. Mizelle resided part-time with Fairley and both of them used the auto. GMAC had actual notice that some of the payments were made by Fairley. When default occurred on three payments extending from January 7 through March 7, 1976, GMAC filed a replevin action on March 26, 1976, to recover the auto that was parked on the property of Tommie Joe Fairley.

Although Fairley contended he never objected to GMAC taking possession of the auto, the record shows that on January 28, 1976, Fairley requested time to make payments by the first of February, 1976, which was granted but only one of the two payments due was made. Thereafter, GMAC representatives called by Fairley's home five times from February 4, 1976 through March 11, 1976; left notices to call or were informed by Fairley's wife to see Fairley about repossessing the auto.

After the replevin action was brought and the writ served on Fairley, he contemplated bonding the auto but did not after the sheriff had prepared him a bond. Fairley thereafter answered and admitted no ownership in the auto and filed a disclaimer, but counterclaimed in a tort action for mental anguish or civil abuse of process, etc. The plaintiff, GMAC, timely demurred to the counterclaim, which demurrer was overruled; judgment was entered granting GMAC possession of the auto but the matter of the counterclaim was set down for trial which resulted in a jury verdict in the principal sum of five thousand dollars.

Fairley urges that Mississippi Code Annotated, Section 11-7-36 (Supp.1977) authorizes any person to now plead in his declaration both contract and tort, and, that Mississippi Code Annotated, Section 11-7-59 (1972) abolished pleas in circuit court. Therefore, argument is made that a counterclaim is authorized in replevin as provided by Mississippi Code Annotated, Section 11-7-69 (1972) when construed with Mississippi Code Annotated, Section 11-37-157 (Supp.1977).

Counterclaim was not known to the Common Law, or to early English and American equity practice. It is a code term of modern origin, and owes its existence to statutory law. 20 Am.Jur.2d, Counterclaim § 19 (1973).

Although replevin was recognized in early common law, its use has been controlled and regulated by statute for several hundred years. The first statute in Mississippi providing for replevin in all cases of wrongful detention of personal property was enacted February 14, 1842, and appears in Hutchinson's Code, ch. 56, art. 11, p. 817 (1848). Since that time replevin has been continuously a statutory proceeding in this state. Although the plea of "not guilty" was abolished and the now repealed Mississippi Code Annotated Section 11-37-37 (1972) provided "the defendant may plead as provided by law," this Court has continuously held that replevin in Mississippi is a purely statutory proceeding. Rawles v. Ogden, 284 So.2d 532 (Miss.1973).

Replevin is a proceeding by which the owner or one who has a general or special property in the chattel taken or detained seeks to recover possession of that...

To continue reading

Request your trial
9 cases
  • Hall v. Corbin
    • United States
    • Mississippi Supreme Court
    • October 2, 1985
    ...held the circuit court could not "administer equity or apply principles cognizable only in equity." Also, General Motors Acceptance Corp. v. Fairley, 359 So.2d 1386, 1388 (Miss.1978), stated, "no provision is made under ... (our replevin statutes) for a judgment of money, except for the wro......
  • In re Fred's Dollar Store of Hernando, Inc., Bankruptcy No. E84-20153.
    • United States
    • U.S. Bankruptcy Court — Northern District of Mississippi
    • November 20, 1984
    ...monetary damages. Robinson v. Friendly Finance Co. of Biloxi, Inc., 241 Miss. 239, 130 So.2d 256 (1961), General Motors Acceptance Corp. v. Fairley, 359 So.2d 1386 (Miss. — 1978), Scarborough v. Lucus, 119 Miss. 128, 80 So. 521 (1919), and Moore v. Cunningham, 124 Miss. 537, 87 So. 112 In A......
  • Regions Commercial Equip. Fin., LLC v. Performance Aviation, LLC
    • United States
    • U.S. District Court — Southern District of Mississippi
    • January 24, 2017
    ...may be maintained where the defendant has constructive, rather than actual, possession of the disputed property. See GMAC v. Fairley, 359 So. 2d 1386, 1388 (Miss. 1978). "Constructive possession" is "possession not actual but assumed to exist, where one claims to hold by virtue of some titl......
  • Wilson v. City of Greenville
    • United States
    • Mississippi Court of Appeals
    • September 6, 2022
    ... ... general city business. During a January 5, 2021 city ... Ct. App. 2017) (quoting Gen ... Motors Acceptance Corp. v. Fairley , 359 So.2d ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT