S. Bernheimer & Sons v. Martin

• Decision Date: 27 May 1889
• Parties: S. BERNHEIMER & SONS v. J.P. MARTIN
• Court: Mississippi Supreme Court

6 So. 326

66 Miss. 486

S. BERNHEIMER & SONS v. J.P. MARTIN

Supreme Court of Mississippi

May 27, 1889

April 1889

FROM the circuit court of Claiborne county, Hon. RALPH NORTH Judge.

The property in controversy, eleven bales of cotton, valued at four hundred dollars, was seized by the appellee, J. P Martin, as constable, under an execution issued by a justice of the peace, directed to him and returnable before the justice. This action of replevin was brought in the circuit court against said officer by the appellants, Bernheimer &amp Sons, who claim to be owners of the cotton. Their contention is that they could not interpose a claim to the property to be tried before the justice, because its value exceeded one hundred and fifty dollars. The defendant, Martin, filed a motion to dismiss the suit because the property was in custodia legis, and the action of replevin did not lie therefor.

This motion was sustained. Thereupon Martin moved for a writ of inquiry to assess the value of the cotton in the hands of the plaintiffs, Bernheimer & Sons, and for judgment on their bond for its return or its value. This motion the court overruled.

Bernheimer & Sons have appealed, and assign for error the action of the court in dismissing the replevin suit. Martin also prosecutes a cross-appeal, and assigns for error the refusal of the court to award the writ of inquiry.

Judgment affirmed.

J. McC. Martin, for appellants and cross-appellees.

1. Appellee contents that § 2633, code 1880, restricts appellants to the remedy by claimant's issue, notwithstanding the value of the property taken under the writ exceeds one hundred and fifty dollars. If this be true, the circuit court is deprived of its constitutional jurisdiction by said section. The original jurisdiction of that court over controversies exceeding in amount one hundred and fifty dollars is defeated and the jurisdiction of justices of the peace extended beyond its constitutional limit by indirection.

2. If the claimant's issue be interposed, the magistrate might be under the necessity of rendering judgment for the restoration of the property, or, in default thereof, for the sum of four hundred dollars. In McLeod v. Gray, MSS., this court held that a judgment on a plea of set-off, with counter suit for a sum exceeding one hundred and fifty dollors, would be beyond the jurisdiction of a magistrate if the judgment should exceed one hundred and fifty dollars. By parity of reasoning a judgment on a claimant's issue for more than one hundred and fifty dollars by a justice would transcend his jurisdiction.

3. The evident purpose of § 2633 is to require a resort to claimant's issue only in cases within the jurisdiction of the court from which the execution proceeds. Justices of the peace were intended to have a restricted and subordinate jurisdiction, limited by the amount in controversy. The civil jurisdiction of the circuit court begins where that of the justice ends. Bell v. City of West Polar, 51 Miss. 270. Unquestionably, in commencing an original action, where the amount in controversy is more than one hundred and fifty dollars, suit must be in the circuit court. Can this jurisdiction be defeated by § 2633 of the code? If so, there is an end to constitutional force.

E. S. Drake and H. C. Conn, for appellees and cross-appellants.

1. The statute, code, § 2227, plainly confers upon justices the right to try a claimant's issue in any case where the execution has issued from his court. This court held in Clark v. Clinton, 61 Miss. 337, that the court from which the execution issues is the only court in which the claimant's issue can be tried. No exception is made where the value of the properly exceeds one hundred and fifty dollars. This class of cases will be numerous, as it often happens that interest and damages added to a judgment make it far greater than one hundred and fifty dollars, and the levy must necessarily be for a sufficient amount to satisfy the judgment, interest, damages, and costs.

2. There is no constitutional difficulty in the case. It is a necessary power in every court to enforce...