Goodman & Co. v. Moss

Citation1 So. 241,64 Miss. 303
PartiesGOODMAN & CO. v. EUNICE MOSS
Decision Date07 February 1887
CourtUnited States State Supreme Court of Mississippi

APPEAL from the Circuit Court of Choctaw County, HON. C. H CAMPBELL, Judge.

Mrs Eunice Moss having waived the tort, brought this action of assumpsit for the value of certain railroad cross-ties alleged by her to have been wrongfully converted by Goodman &amp Co. Suit was begun by levying an attachment on certain property belonging to Goodman & Co., who were non-residents. The effect of the evidence introduced on the first trial, as to the title of plaintiff to the cross-ties alleged to have been converted by defendants, is sufficiently stated in the opinion of the court. On the first trial the jury found for the defendants. But a new trial was granted by the court. On the second trial the plaintiff, in order to show her title offered the docket and papers of J. R. Foster, a justice of the peace in and for Choctaw County, showing the judgments processes, and other papers constituting the proceedings in various attachment suits against one Miles Leek, in which the cross-ties in question were levied on and sold, Mrs. Moss claiming to have been the purchaser. The defendants objected to the admission of this evidence because the records showed that the defendant, Leek, was a non-resident debtor and no personal service of process was had on him, and that judgments were rendered on constructive notice, and no bonds were given, as required by § 2469, Code of 1880, without which the sales were void and conferred no title. "But it appearing that said cross-ties were sold as perishable property before the rendition of the judgments in said causes, the court overruled said objection and said judgments, and proceedings were admitted as evidence in said cause, to which action of the court defendants excepted." The plaintiff claimed that the ties were perishable property under the peculiar circumstances of this case, which circumstances are sufficiently set out in the opinion of the court, and that the sheriff was therefore authorized to sell them under § 2462, Code of 1880. A jury was waived on the second trial and the cause submitted to the judge, who rendered judgment for the plaintiff. The defendants appealed to this court.

Judgment reversed.

Butt & Butt, for the appellants.

1. It was error for the court below to grant a new trial, and this court will find, upon the examination of the evidence in the first trial, that the jury could not have found any other verdict than in favor of appellants, Goodman & Co.

In fact, the court below should have, under the evidence, given a peremptory instruction to the jury to find for appellants.

Appellee showed no title to the cross-ties in controversy. The plea of Goodman & Co. put in issue every essential matter, the right of appellee to recover.

It is shown that appellee's right to the ties in controversy depended upon a purchase by her husband at a sheriff and marshal's sale under several attachments against one Miles Leek. Her legal right to the cross-ties in controversy in this suit lay at the foundation of this action against Goodman & Co. If she had no legal right she could not recover, whatever may have been her rights in other respects, and this legal right must be shown by competent evidence; the right must have existed in her at the institution of this suit and must have been shown by the evidence on the trial. The court below so instructed the jury, and properly so. Yet in the whole evidence there is not a shadow of evidence of her legal title.

2. Appellee attempts to escape, and, in fact, to set at defiance, § 2459 by the sheriff and marshal's acts of sale under § 2462, as perishable property, etc admitting the force of § 2469, but says that a sheriff, marshal, or constable may beat the latter section by their notions as to the perishable character of the property--may even sell real estate under the same view, for in a certain sense real estate is perishable. Section 2462 is...

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7 cases
  • Alabama & Alabama & Vicksburg Railway Co. v. Thornhill
    • United States
    • United States State Supreme Court of Mississippi
    • December 22, 1913
    ...... Martin v. Williams, 42 Miss. 210; Jelkes v. Barrett, 52 Miss. 315; Dyson v. Baker, 54 Miss. 24; Cachute v. State, 50 Miss. 165; Goodman v. Moss, 64 Miss. 303; Graham v. Warren, 81 Miss. 330; Shannon v. Summers, 86 Miss. 619; Hayden v. Moore, 1 S. & M. 605; Lipscomb v. ......
  • Bogle v. State
    • United States
    • United States State Supreme Court of Mississippi
    • December 9, 1929
    ...v. State, 51 Miss. 652; Jordan v. Miss. Central R. R. Co., 107 Miss. 323; McLeod Lbr. Co. v. Anderson Mer. Co., 105 Miss. 498; Goodman v. Moses, 64 Miss. 303; Shannon Summers, 85 Miss. 619; Lipscomb v. Pastell, 38 Miss. 476. Forrest B. Jackson, Assistant Attorney-General, for the state. The......
  • Dabbs v. Richardson
    • United States
    • United States State Supreme Court of Mississippi
    • February 9, 1925
  • Day v. Hartman
    • United States
    • United States State Supreme Court of Mississippi
    • February 8, 1897
    ...... "expensive to keep, " within the meaning of §. 516, code 1892--as was held not to be true of railroad. cross-ties in Goodman v. Moss , 64. Miss. 303, 1 So. 241--need not, as matter of law, be here. declared; for the undisputed testimony shows it was not. subject to ......
  • Request a trial to view additional results

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