Shuler v. L. Grunewald Co.

• Decision Date: 02 April 1917
• Docket Number: 19014
• Citation: 113 Miss. 763,74 So. 659
• Court: Mississippi Supreme Court
• Parties: SHULER ET AL. v. L. GRUNEWALD COMPANY LIMITED

74 So. 659

113 Miss. 763

SHULER ET AL. v. L. GRUNEWALD COMPANY LIMITED

No. 19014

Supreme Court of Mississippi

April 2, 1917

Division B

APPEAL from the circuit court of Leflore county, HON. F. E. EVERETT Judge.

Replevin by L. Grunewald Company Limited, against T. S. Shuler and others. From a judgment for plaintiff, defendants appeal.

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

Judgment affirmed.

Lomax &amp Tyson, for appellants.

Whether or not the law of Mississippi, prescribing the remedy to be pursued by a third party owning property on rented premises as it exists now, under section 2868 of the Code of 1906 (which is identical with section 2530 of the Code of 1892 is the same as it was when section 1631 of the Code of 1871 and section 1317 of the Code of 1880 were operative.)

The contention below, of the appellee Piano Company, and which contention was sustained by the trial judge, was that the law of Mississippi on this point as incorporated in section 2868 of the code of 1906, is not what it was under section 1631 of the Code of 1871 and section 1317 of the Code of 1880, in that under said section of the Code of 1906, the remedy set out therein is not an exclusive one as was the remedy set out in said sections of the Codes of 1871 and 1880; and that the third party owner of property or rented premises can under said section 2868 of the Code of 1906, pursue any remedy he desired, such as for instance in the case at bar, which is a replevin suit brought by the appellee Piano Company for the possession of the piano involved, against appellant Shuler who was the purchaser of the said piano at a sale duly and properly made under attachment proceedings in which said piano had been seized and sold. This contention of the appellee is based upon the proposition that the change of phraseology, relative to the remedy of a third person owning property on the rented premises, from that used in said sections of the Codes of 1871 and 1880 to that phraseology used in section 2530 of the Code of 1892 in which section the change of phraseology was first made, indicated an intention on the part of the legislature to afford any and all remedies to such third party, and that such change of phraseology effectuated such intention of the legislature by giving remedies to such third party, other than the one specified, in all the above cited statutes.

The language of section 1631 of the Code of 1871, and section 1317 of the Code of 1880 after specifying that the property of the third person on rented premises shall not be liable for rent, is as follows in prescribing the remedy: "And no persons claiming title to property distrained for rent shall, in any manner avail himself of the provisions of this section, unless by making and filing an affidavit that the goods and chattels distrained are his property, and not the property of his tenant."

The language of section 2530 of the Code of 1892 (the section in which the change of phraseology took place) and the language of section 2868 of the Code of 1906, after stating that the third person on rented premises shall not be liable for rent, says in regard to the remedy to be pursued: "When any person other than the tenant shall claim to the owner of any property distrained or seized for rent or supplies, or either, he may make affidavit that the property is his and not the property of the tenant." The change in phraseology made by section 2530 of the Code of 1892 is shown by the above quotations.

Our contention below was, and is here, that the law of Mississippi in relation to the remedy to be pursued by a third party, owning property on the rented premises, is, under section 2868 of the Code of 1906, identical with what the law of Mississippi was under section 1631 of the Code of 1871, and section 1317 of the Code of 1880, and that the remedy set out in section 2868 of the Code of 1906 is one that is exclusive; and that the appellee Piano Company having failed to pursue such remedy, cannot maintain the suit of replevin he brought in this case against appellant Shuler, after the attachment for rent proceedings had been completed and consummated by the sale of the piano involved, to said Shuler, we base our contention that the law on this point is the same under section 2530 of the Code of 1892 and section 2868 of the Code of 1906 as it was under section 1641 of the code of 1871 and section 1317 of the Code of 1880, upon the three following propositions, to wit:

First: That the intention of the legislature in enacting the present statute, as set out in section 2530 of the Code of 1892, cannot be sought by consulting the provisions of the Codes of 1871 and 1880 on the subject, because the present statute 2530 of Code 1892, which is the same as section 2868 of Code 1906 is plain and unambiguous standing alone and on its face and to consult the provisions of the Codes of 1871 and 1880 on this subject would be to create and not explain an ambiguity, and thereby would be contravening a cardinal rule of construction laid down by all courts on the interpretation of a meaning of the statute. Maxey v. White, 53 Miss. 80; Kiser v. Middleton, 61 Miss. 360; 36 Cyc., 1146, 26 A. & E., 598; United States v. Bowen, 25 L.Ed. (U. S.), 631; Hamilton v. Rathbone, 44 L.Ed. 219; Koch v. Bridges, 45 Miss. 247-259-260; Smith v. State, 99 Miss. 859.

Second: In further support of our contention we present a second proposition, that even if the Codes of 1871 and 1880 relative to the remedy of third party, may be consulted in order to interpret the meaning of section 2868 of the Code of 1906, that there is nothing in the change in the phraseology made to indicate any intention on the part of the legislature to give to a third person owning property on rented premises, any remedy, or remedies, additional to the one set out in all of said Codes. Maxey v. White, 53 Miss. 80; Kiser v. Middleton, 61 Miss. 360; Pollard v. Bailey, 22 L.Ed. 376; Barnes v. Thompson, 32 Tenn. 185; 36 Cyc., 1168; 26 A. & E. 651; 36 Cyc., 1165-1166-1168; United States Land Co. v. Sullivan, 22 Ann. Cases 51; Fuller v. American Supply Co., 64 So. 549; Lindsey v. United States Loan Co., 51 L. R. A. 393.

Third: We submit as a third proposition that even if it was the intention of the legislature, by the change of phraseology made in relation to this subject, in section 2530 of the Code of 1892, to give a remedy or remedies to the third party owning property on the rented premises other than the remedy set out therein, that nevertheless there can exist no other remedies than the one set therein for the reason that such intention of the legislature could not be effectuated by such a change in phraseology. 36 Cyc., 1122, 26 A. & E., 604-605. We therefore, respectfully submit that, under section 2868 of the Code of 1906, this case should be reversed and judgment be rendered here on the agreed statement of facts, in favor of the appellant, T. S. Shuler, who became the purchaser at a sale, duly and properly made, under a proceeding for attachment for rent, of the piano involved in this replevin suit.

Whittington & Osborne, for appellee.

It is our contention, which contention was adopted by the court below, that by the adoption of sections 2529 and 2530 of the Code of 1892, section 1317 of the Code of 1880 was materially revised for an express purpose, and that purpose was, first, to declare as a positive, substantive rule of law that property of third parties on leased premises should not in any case, be liable to be seized and sold for rent under an attachment by the landlord against his tenant, unless such third party was in some way bound for the payment of the rent, and this rule of law having been adopted and declared by section 2529 of the Code of 1892, it was the further intention of the legislature, by adopting section 2530 of the Code of 1892, to provide a mode and method by which claims of third parties to property levied on under an attachment for rent might be tried and settled in the same proceeding, should the third party have notice of same and desire to present his claim to his property in the attachment proceeding, and while the property should be still in the hands of the officer.

The appellant seeks to hinge this case upon the construction of the terms "may" and "shall," and argues that the change of the word "shall" to "may" was the only real change in the law by the adoption of the Code of 1892, and that such change is not material. It seems to us that one has but to read section 1317 of the Code of 1880 and sections 2529 and 2530 of the Code of 1892 to ascertain that there was a material amendment and revision of this law, and that this change consists not only in using the word "may" for "shall" but in a radical revision of the meaning and effect of the entire statute on the subject. Let us see what material amendments and alteration were made.

We first call attention to the fact that section 2529 of the Code of 1892, as a separate and distinct statute, was not contained in the Code of 1880. We next call attention to the fact that until the adoption of the Code of 1892 the law relating to claims of third parties to property levied on under attachments for rent, was contained in section 1317 of the Code of 1880, which begins by exempting chattels found on the demised premises belonging to the tenant or to some person bound or liable for the rent of said premises, but such right was conditional and the condition is expressed thus: "And no person claiming title to such property distrained for rent, shall in any manner avail himself of the provisions of the section, unless by making and filing an affidavit that the goods and chattels distrained are the property of his tenant."

Now the foregoing condition of the ...