McCue v. Massey

• Decision Date: 18 February 1907
• Citation: 43 So. 2,90 Miss. 124
• Court: Mississippi Supreme Court
• Parties: ALFRED A. MCCUE v. WILLIAM MASSEY

43 So. 2

90 Miss. 124

ALFRED A. MCCUE v. WILLIAM MASSEY

Supreme Court of Mississippi

February 18, 1907

March 1907

FROM the circuit court of Pike county, HON. MOYSE H. WILKINSON Judge.

McCue the appellant, was plaintiff, and one Duncan was defendant in the court below; Massey, the appellee, was claimant of the property in controversy. From a judgment predicated of a peremptory instruction, the plaintiff appealed to the supreme court.

The appellant, McCue, was the beneficiary in a chattel deed of trust executed by Duncan to Holmes, as trustee, and covering certain horses, vehicles and harness. Appellant instituted replevin in the court of a justice of the peace against Duncan for possession of the property, bringing suit in his own name instead of in the name of Holmes, the trustee. Duncan made no defense to the suit. The appellee, Massey however, interposed a claimant's affidavit, and on the trial the justice of the peace rendered judgment in favor of plaintiff, McCue, against defendant, Duncan, and against claimant, Massey, and Massey, the claimant, appealed to the circuit court. On the trial in the circuit court, the sole issue being the respective rights of the claimant and the plaintiff to the property, and the claimant having assumed the burden of proof, and having closed his testimony and rested his case, the plaintiff, McCue, offered in evidence the deed of trust executed by Duncan. The claimant objected to its introduction, and the objection was sustained. The plaintiff, McCue, thereupon moved the court for leave to substitute as plaintiff the trustee, Holmes. The court overruled the motion, and, as plaintiff introduced no further relevant evidence, granted a peremptory instruction in favor of the claimant, Massey.

It will be noted that objection had not been made by defendant, Duncan, to the suit's having been brought by the beneficiary instead of the trustee in the deed of trust.

Reversed and remanded.

Quin & Williams, and F. H. Lotterhos, for appellant.

In view of the fact that Duncan, the debtor, who executed the deed of trust in favor of appellant, made no objection to the proceedings in the justice's court, it was error for the court below to deny to McCue, plaintiff in the justice's court, the right to introduce the deed of trust in evidence as showing his right to possession of the property. In the circuit court Duncan was not an active party to the suit. The issue as between Duncan and McCue was settled, Duncan having prosecuted no appeal from the judgment of the justice of the peace. The proposed substitution of the trustee, Holmes, as plaintiff, would not, as against the claimant, have prejudiced any substantial rights of the parties. It would not have so changed the suit as to make it a different cause of action; the issues involved would have remained the same.

The practical effect of the motion was merely to amend the pleadings, so as to make them conform to the facts and to bring the merits of the controversy fairly to trial.

Code 1892, § 717 (Code 1906, § 775), provides for liberal amendments before verdict.

In support of our contention that the court erred in not permitting the substitution, see Montague v....