McCoy v. Tolar

• Citation: 90 So. 628,128 Miss. 202
• Decision Date: 20 February 1922
• Docket Number: 22424
• Court: United States State Supreme Court of Mississippi
• Parties: MCCOY ET AL. v. TOLAR

90 So. 628

128 Miss. 202

MCCOY ET AL. v. TOLAR

No. 22424

Supreme Court of Mississippi

February 20, 1922

1. AGRICULTURE. In enforcement of laborer's lien against seed, giving judgment against replevin bond without proof of value of seed, error.

Under sections 3042, 3044, 3049, Code of 1906 (sections 2400, 2402, 2407, Hemingway's Code), it was error to render judgment against replevin bond for seed, where their seizure, value and liability is not shown by laborer seeking to enforce lien against the seed.

2 AGRICULTURE. Laborer's lien is enforceable by personal judgment against employer notwithstanding failure against seized property.

In such suits the procedure is like replevin cases, but personal judgment against the employer may be rendered for amount due laborer, notwithstanding a failure against the seized property,

3. APPEAL AND ERROR. Supreme court will render such judgment as lower court should have rendered on proof and verdict.

This court will render such judgment as the lower court should have rendered on the proof and verdict of the jury.

HON. S F. DAVIS, Judge.

APPEAL from circuit court of Humphreys county, HON. S. F. DAVIS Judge.

Suit by L. W. Tolar against R. J. McCoy and others. Judgment for plaintiff, and defendants appeal. Reversed, and judgment rendered.

Judgment reversed.

Jesse D. Jones, for appellants.

Montgomery & Montgomery, for appellee.

OPINION

HOLDEN, J.

The appellee, Tolar, filed suit against the appellant, McCoy, for labor performed, and also claiming a lien upon twenty-five tons of cotton seed belonging to appellant McCoy, employer, which was levied upon under sections 3042, 3044, and 3049, Code of 1906 (sections 2400, 2402, and 2407, Hemingway's Code.) From a judgment for three hundred and sixty dollars the employer, McCoy appeals.

The suit to enforce the laborer's lien against the employer was started under the statute by levying upon the twenty-five tons of cotton seed. Bond was given by appellant McCoy for the seed; at the trial the appellee, Tolar, failed to introduce any evidence showing the levy or value of the seed, or that the seed was liable to the employer's lien. The testimony did show, however, that the appellant was indebted to the appellee, by contract for his labor, in the sum of three hundred and sixty dollars, for which amount the jury gave a verdict for appellee against the appellant McCoy and his bondsmen on the replevin bond.

The main contention of the appellant is that the judgment rendered against appellant and his bondsmen on the replevin bond is erroneous because there was a failure to prove the levy on the seed, the value thereof, or that there was a lien upon the seed for labor performed by the appellee. It seems clear to us that the judgment is erroneous as against the bondsmen, because it was not shown that the cotton seed was subject to the lien sought to be enforced by the appellee, nor the value or levy; and to this extent the judgment must be annulled. But the personal judgment for three hundred and sixty dollars against the appellant McCoy is sustained by the evidence in the case, and the jury was warranted in...