Reynolds v. Carter

• Citation: 109 Miss. 314,68 So. 467
• Decision Date: 17 May 1915
• Docket Number: 16856
• Court: United States State Supreme Court of Mississippi
• Parties: REYNOLDS v. CARTER

68 So. 467

109 Miss. 314

REYNOLDS v. CARTER

No. 16856

Supreme Court of Mississippi

May 17, 1915

APPEAL from the circuit court of Monroe county. HON. CLAUDE CLAYTON Judge.

Suit by F. D. Carter against H. E. Reynolds, executor. From a judgment for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

McFarland & McFarland, for appellant.

By instruction number 4 for appellee, the court peremptorily charged the jury to find for appellee; this was error and the case should be reversed and the question of whether or not the property levied on was the property of H. J. Jennings defendant in execution, should be left to the jury.

In Irion v. Hume, 50 Miss. 426, the court says: "The precise issue of which the execution or attachment holds the affirmative, is that the property is liable to the process and not whether the claimant has established his title. Although the claimant may not have title, yet he will succeed by showing title in a stranger, for, thereby he has demonstrated that the property cannot be rightfully subjected to the creditors' demand. Ross v. Garey, 7 How. 47; Thornhill v. Gilmer, 4 S. & M. 153."

"If claimant had no title or lien, and the plaintiff failed to show the liability of the property to his execution, the issue would be for the claimant." 71 Miss. 974. See 13 S. & M. 721; 14 S. & M. 11; 50 Miss. 505, 507, 508, 392 & 727; 11 So. 795; 37 Miss. 635; 54 Miss. 476.

Leftwitch and Tubb, for appellee.

This claim is set up under section 4990, Code of 1906; see, also, secs. 772-773. H. E. Reynolds here came into court and by his own testimony attempted to establish his claim of property in the buggy, harness and horse levied on, which had come to him by the death of his brother pending the suit and that also, without any notice of his claim whatever being filed in the record or without any revivor of his brother's claim. All of his evidence was palpably incompetent, and the court was correct in ordering the jury to disregard it. Jackson v. Smith, 60 Miss. 53; Cockrell v. Mitchell, 15 So. 41; Baldridge v. Stribling, 101 Miss. 666; Walker v. Marseilles, 70 Miss. 283. We hardly need we think go further than cite the foregoing authorities to show that not only the claim but all the evidence of H. E. Reynolds was to be disregarded by the jury. Code of 1906, sec. 1917. Here was a palpable effort on the part of H. E. Reynolds to assert and prove his own right to property claimed by his brother which had come to him, the said H. E. Reynolds, pending the suit, and in the face of the statute just cited, as plainly decided in the cases. of Jackson v. Smith, and Cockrell v. Mitchell, supra. The property thus descended to Reynolds he cannot acquire by his own testimony in an action like this.

OPINION

SMITH, C. J.

Appellee having recovered a judgment at law against H. J. Jennings, execution was issued thereon and levied upon a horse, one top buggy, one open buggy, and one set of harness. Afterwards a claim to the open buggy was interposed by H. E. Reynolds, and to the horse, top buggy, and harness by B. E. Reynolds. The property, when levied on, was in the possession of one or both of the Reynolds, the evidence being somewhat confused on this point; it being clear, however, that it was not in the possession of Jennings, and seems not to have been for some time prior to the levy. The record recites that:

"This case was called for trial on Thursday morning, March 13th, and B. E. Reynolds, one of the claimants, being deceased, leaving the said H. E. Reynolds his executor and sole devisee, his claim was presented by the said H. E. Reynolds, and by agreement both claims were tried at the same time."

There was some evidence on the part of plaintiff in execution tending to show that at one time Jennings was in possession of the property, claiming it as his own. According to the evidence for the claimants, the property was never owned by Jennings; the open buggy being the property of H. E Reynolds, and the horse, top buggy, and harness being the...