Mars v. Hendon

• Decision Date: 15 March 1937
• Docket Number: 32506
• Citation: 171 So. 880,178 Miss. 157,173 So. 286
• Court: Mississippi Supreme Court
• Parties: MARS v. HENDON

171 So. 880

173 So. 286, 178 Miss. 157

MARS v. HENDON

No. 32506

Supreme Court of Mississippi

March 15, 1937

Division B

January 18, 1937

APPEAL from circuit court of Neshoba county HON. D. M. ANDERSON Judge.

Action in replevin by Dr. W. H. Mars against W. T. Hendon. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

On suggestion of error. Suggestion of error overruled.

Reversed and remanded. Suggestion of error overruled.

W. T Weir and James M. Mars, both of Philadelphia, for appellant.

A witness himself cannot be impeached by asking him if he was indicted.

40 Cyc 2620; Bradner on Evidence, page 21; Starling v. State, 89 Miss. 328, 42 So. 798; R. C. L. 626; Saucier v. State, 102 Miss. 647, 59 So. 858.

We most respectfully submit that the court erred in refusing the requested instruction No. 2 for the plaintiff, and which is in the following words, to-wit: "The court instructs the jury for the plaintiff, W. H. Mars, that payment is an affirmative defense, and when defendant pleads payment then the burden of proving same is on the defendant and he must meet this burden by a preponderance of the evidence. That is, the burden of proof is not on the plaintiff to prove that defendant did not pay for the mules in question in this law suit, but the defendant must prove by a preponderance of the evidence that he did pay for said mules." The plea of the defendant in this case was that he paid for the mules and, of course, payment is an affirmative defense.

Stewart v. Graham, 46 So. 245.

In the case at bar the court charged the jury that the burden of proof was on the plaintiff and refused the charge along this line to the defendant in conflict with this opinion.

Stewart v. Graham, 93 Miss. 251, 46 So. 245; Greenburg v. Sauls, 91 Miss. 410, 45 So. 569; Sivley v. Williamson, 112 Miss. 276, 72 So. 1008; R. C. L. 935, sec. 107.

We most respectfully submit that the court erred in granting the instruction No. 1 for the defendant wherein it is instructed that the burden of proof is on the plaintiff.

There was no evidence of malice, fraud or oppression in this case hence the Instructions along this line is out of order. Instructions on points not raised by the evidence are properly refused.

Mobile & R. Co. v. Jackson, 92 Miss. 517, 46 So. 715.

We most respectfully submit that the verdict of the jury is contrary to the evidence and law in this case.

The verdict of the jury is not in accordance with the law in this case.

Evans v. Junius Hart Piano Co., 140 Miss. 467, 106 So. 9, 110 So. 230; Porter Hardware Co. v. Peacock, 91 So. 856.

This was a judgment of the court that the defendant recover of the plaintiff on his appeal bond, and the judgment ought to have been that he restore the property to the defendant or pay him the value thereof assessed, and also damages assessed for the wrongful suing out of the writ. This should be against the plaintiff and his replevin bond but instead it was against the appeal bond.

Pearce v. Twichell, 41 Miss. 344; Whitfield v. Whitfield, 40 Miss. 352.

The appeal bond is only for the condition that the principal shall be conditioned for the payment of such judgment as the circuit court shall render.

Sections 64, 3091, Code of 1930; efts Finance Co. v. Myers, 152 So. 834.

We further respectfully submit that the verdict of the jury in the assessment of damages is not warranted by the law or evidence. They do find for $ 200 for damages, but they do not say for what. It is not known whether the damages assessed is for attorney fee, or was for the wrongful seizure of the property, or for oppression, malice, etc. It is not known whether the damages were for one mule or for both mules. If it was for attorney fee then it could not be allowed except on proof of wilfulness, malice or fraud is shown.

The measure of damages in a case of this kind, where plaintiff has sustained no damages because of the deprivation of use of his property, would be the interest on the value of the property during the time he was deprived of its possession. We think the same rule applies to the defendant as to the plaintiff in the case of awarding damages.

Mars v. Germany, 100 So. 23; Thornton v. Gardner, 99 So. 131; Caraway v. Wallace, 17 So. 930.

W. T. Weir and James M. Mars, both of Philadelphia, for appellant on suggestion of error.

The natural death of an animal without the fault of anyone, while in the possession of the plaintiff in replevin, but before the determination of the action, has been held as a valid excuse for a failure to return it.

R. C. L. 906, sec. 67.

The purpose of the affidavit is to obtain an order of delivery. It forms no part of the pleading, where a petition or bill of particulars has also been filed, and its office ceases when the property is delivered and jurisdiction conferred and the action thereafter proceeds upon the petition; and whether a cause of action has been stated must be determined by the averments of the petition and not by the affidavit.

23 R. C. L. 920-921, sec. 88.

While this cause was instituted in the justice of the peace court, yet it was proceeded on by declaration and answer by both parties and therefore by the act of both parties they eliminated the terms of the affidavit on which they tried the case.

34 Cyc. 1428, 1438.

We most respectfully submit that if the affidavit was or is wrongfully made that the remedy of defendant was on motion to quash and that could have been heard before the court and testimony introduced to show on the motion that the allegations of the affidavit was incorrect, but instead they go before the grand jury and indict and then parade that before the jury in order to prejudice the jury in favor of the defense and even in the suggestion of error they undertake to reflect on appellant for using his son as attorney. We respectfully submit that he had the right to use his son if he saw fit, and that ought not to be a matter of discussion in the court.

Nate S. Williamson, of Meridian, for appellee.

Section 3097, Code of 1930, concerns pleading requirements in replevin action, The filing of counterclaim is proper.

Garner v. Broom, 138 So. 336.

See section 67 of the Mississippi Code of 1930, as touching jurisdiction of justice of the peace court, circuit court on appeal and Supreme Court on appeal.

Evidence that the car replevied in justice of the peace court was worth three or five hundred dollars and that the debt or unpaid purchase price was $ 280, nevertheless this did not deprive justice of the pace court of jurisdiction because plaintiff testified that the car was worth less than two hundred dollars. The record did not show that he purposely and knowingly undervalued same. Justice of the peace was correct in retaining jurisdiction.

Mitchell v. Williams, 124 So. 430; Miss. Power Co. v. Russell, 152 So. 847.

Code section 3089 among other things holds that in the event the defendant wins, of course the plaintiff in replevin and sureties on his bond "shall be liable to the defendant for any damages to, or depreciation in the value of, such property from the date of the surrender of said property to the plaintiff and the execution of his replevin bond to the date of its surrender by the plaintiff in obedience to the judgment of the court, in addition to any other damage which the defendant may sustain by reason of the delivery to the plaintiff, or his retention thereof, in virtue of said bond, and the defendant may recover such damages in the replevin suit, or may institute a separate action therefor on the plaintiff's replevin bond." etc.

Myers v. Daughdrill, 141 So. 583; Cook v. Waldroff, 133 So. 894.

According to the proof in the case at bar the damages recovered in the case at bar are nominal, not near as much as the jury might have properly rendered a judgment for.

The damages, in case of a wrongful taking, which in its inquiry might involve many collateral questions of tort and circumstances of aggravation, might be much greater in amount, than the damages which could be recovered in a case merely of the wrongful detention of the property.

Newell v. Newell, 34 Miss. 399.

In the case at bar the evidence for the defendant in replevin, appellee here, preponderated to his favor to the extent that it was almost inescapable that the plaintiff in replevin, appellant here, was guilty of wilfulness, malice, or fraud and oppression in the suing out of the writ of replevin and the seizing of the mules under the circumstances under which they were seized in the spring of the year under the affidavit in the replevin case, giving the right to the plaintiff in replevin to make bond -- under which he did make bond the day they were seized--and under which he did hold one of the mules until the day he died and is holding the other one until this good hour. The appellant being a man of means and being extraordinary "smart" evidently knew he could take advantage of an old, feeble, ignorant and almost blind neighbor and thereby get the use of the mules for an entire crop period, in fact, two crop periods and thereby deprive this old gentleman of his own mules that he had for five or six years, depriving him of the right to use them or make crops with them for a couple of years regardless of the justice or the injustice of the transaction, and without regard to how the courts decided the question, for the appellee won in justice court. He also won out in circuit court and if I am judge at all of law and fact in this case he will win out in Supreme Court, nevertheless this "smart" man has realized his objective in that he has continuously had the use of the mules 'and the appellee has continuously been deprived of the use of the mules--oppression in the extreme.

We insist that if...