Herrington v. Stimpson Computing Scale Co.
| Decision Date | 19 January 1931 |
| Docket Number | 28834 |
| Citation | 159 Miss. 416,131 So. 878 |
| Court | Mississippi Supreme Court |
| Parties | HERRINGTON v. STIMPSON COMPUTING SCALE CO |
APPEAL from circuit court of Jones county, Second district, HON. W J. PACK, Judge.
Replevin suit by the Stimpson Computing Scale Company against W. O Herrington. Judgment for the defendant in the county court on appeal from the justice court, was reversed by the circuit court, and the cause remanded with directions to enter judgment for plaintiff. Judgment was entered in the county court for plaintiff, and such judgment was affirmed by the circuit court, and defendant appeals. Reversed, and cause remanded.
Reversed and remanded.
Montgomery & Buchanan, of Laurel, for appellant.
The filing of the affidavit by Roy P. Noble, stating that the title and right of possession to the property was in himself, cannot be made the basis of a suit by the appellee. It is well settled that an action of replevin cannot be brought in the name of one person for the use of another, for the action involves nothing but legal rights; and, if equities are to be settled, another form of action must be resorted to.
Myer v. Moseley, 1 So. 837, 64 Miss. 610.
Welch & Cooper, of Laurel, for appellee.
Any objection to the sufficiency of the affidavit or the right of an attorney to make the affidavit in behalf of a plaintiff in replevin (plaintiff being a corporation and able to act only through agents and servants) was waived by the failure of appellant to make such objection on the trial of the case. The corporation can act only through its agents, servants or employees and if it could not so act it could not maintain an action of replevin in any case.
Miss. Cent. R. R. Co. v. Pillons, 101 Miss. 527, 58 So. 483; Morris v. Robinson, Brothers Motor Co., 144 Miss. 861, 110 So. 683.
Roy P. Noble described himself as the agent and attorney of the Stimpson Computing Scale Company, on the affidavit, and certainly the word "affiant" used thereafter in the affidavit refers to him in the same character, that of the agent and attorney of the Stimpson Computing Scale Company.
This is a replevin suit which was instituted in the court of the justice of the peace of Jones county, Mississippi, upon an affidavit averring that Roy P. Noble, described as the attorney and agent for Stimpson Computing Scale Company, a corporation, made oath that a certain computing scale therein described, the property of the affiant, was wrongfully detained by W. O. Herrington, and that "this affiant is legally entitled to the immediate possession thereof." Upon this affidavit, a replevin writ was issued, and executed by the proper officer by taking into his possession the scale described, and by summoning the said W. O. Herrington. The cause proceeded to trial in the justice court between the Stimpson Computing Scale Company, as plaintiff, and the said W. O. Herrington, as defendant, and resulted in a judgment for the defendant, from which the plaintiff appealed to the county court. In the county court the trial was resolved into an issue of debt depending for its solution upon the question...
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Ainsworth v. Blakeney
...must be able to show his right to the immediate possession of the property. Buck v. Payne, 52 Miss. 271; Herrington v. Stimpson Computing Scale Co., 159 Miss. 416, 131 So. 878; Tatum v. Sciscoe, 189 Miss. 803, 199 So. We are of the opinion that the appellee did not meet the burden which the......
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Robinson v. Friendly Finance Co. of Biloxi, Inc., 41871
...aver that the plaintiff is entitled to the immediate possession of the property sought to be recovered (Herrington v. Stimpson Computing Scale Co., 159 Miss. 416, 131 So. 878, 879) unless the replevin action is brought for the use of another. Meyer v. Mosler, Bahan & Co., 64 Miss. 610, 1 So......
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