Thornton v. Gardner

• Decision Date: 25 February 1924
• Docket Number: 23783
• Citation: 99 So. 131,134 Miss. 485
• Court: Mississippi Supreme Court
• Parties: THORNTON v. GARDNER

99 So. 131

134 Miss. 485

THORNTON v. GARDNER

No. 23783

Supreme Court of Mississippi

February 25, 1924

Division B

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

Proceedings by J. C. Thornton against S.W. Gardner, for attachment of agricultural products for rent, in which Gardner replevied the crops and filed his declaration in replevin. Judgment for Gardner, and Thornton appeals. Reversed and judgment rendered.

Judgment reversed.

H. F Jones, for appellant.

The court admitted evidence, over the objection of attorney for the defendant, of damages, taking into consideration attorney's fees, although there was no evidence whatever disclosing fraud, malice, oppression, or wilful wrong on the part of defendant in suing out the attachment for rent. There was no contention for exemplary damages, nor any contention that any of the elements allowing such damages existed. It will be seen that the verdict of the jury not only embraced attorney's fees, which was error, but also loss of time thirty dollars, and attending court, twenty dollars. Every element of damages assessed against the defendant here by the jury, and in the judgment of the court, was error.

The following authorities hold, and none may be found to the contrary, that attorney's fees are not allowable as damages in replevin. Cowden v. Lockridge, 60 Miss. 385; Carraway v. Wallace, 17 So. 930.

The court also held in Taylor v. Morton, 61 Miss. 24, that where there was no evidence from which the jury could infer fraud, malice, oppression or wilful wrong, plaintiff was not entitled to recover the value of time lost by him in prosecuting the claim or his attorney's fee.

After the jury returned the verdict, the court proceeded to render a judgment thereon, and appellant submits that section 2363, Hemingway's Code or 2865, Code of 1906, affords no authority for the judgment rendered against the defendant and his bond. All the proceedings in such cases are purely statutory, and the statute must be strictly complied with, and in the case here this was not done. Appellant submits that the case should be reversed and remanded.

Mortimer & Sykes and J. D. Jones, for appellee.

By reference to Section 2363 of Hemingway's Code, it will be noted that where the jury finds that the attachment was wrongfully sued out, the tenant shall recover as damages, double the value of the property seized.

The only evidence of the value of the property was the return of the sheriff, which shows that he seized nine tons of hay, worth thirty dollars a ton, making a total of two hundred seventy dollars. Therefore, the tenant was entitled to recover as damages the sum of five hundred forty dollars. But in the instant case, the tenant had replevied the property, therefore he already held the value of the property, and this possession was left with him by the jury. Therefore, he could not recover double the value of the property inasmuch as he had the property, but his recovery as to damages would be limited to the value of the property. He was, therefore, entitled to recover as damages two hundred seventy dollars. The jury allowed him as damages one hundred fifty dollars, therefore he recovered one hundred twenty dollars less than he was entitled to under the statute. Appellant has no cause to complain at the amount of damages assessed against him in this cause.

Appellee testified as to his actual damages in attending court, loss of time, etc., and further stated that he had expended the sum of one hundred dollars as an attorney's fee, all of which was the direct and proximate result of the wrongful suing out of the attachment by appellant.

As stated the jury gave him one hundred twenty dollars less than he was entitled to under the statute. If the other items of damage plus the attorney's fee had exceeded the sum of two hundred seventy dollars, then appellant might have had a right to complain, though we do not concede it.

We submit that he has not been prejudiced by the instructions or the verdict or judgment in this cause, and that, so far as he is concerned, substantial justice has been done, and in this connection we cite Rule 11 of this court.

H. F. Jones, for appellant in reply.

Appellant submits that Hemingway's Code, section 2353, makes no provision for double damages unless in case of distress or seizure, a sale be made. It is necessary that the tenant should have suffered a loss of the property. It must have been sold, and passed from the tenant's power to recover the specific property. It is idle to take the position that the tenant should recover the property, and in addition to this also recover its value. He would have his tenant eat his cake and have it in addition.

When the tenant replevies the property, it is for the first time a cause of action pending in a court, and is an action in replevin, and it thereupon becomes in all respects an action in replevin, and damages, if any, are in all respects the same as damages allowed in actions in replevin. The statutes of our state detail the remedy of the tenant, and no provision was made for such damages as were allowed by the circuit court by his instructions under any section of the statutes.

OPINION

SYKES, P. J.

The cause of this suit was the issuance of an attachment for rent by the appellant, Thornton, against his alleged tenant Gardner (appellee), under section 2842, Code of 1906 (section 2340, Hemingway's Code), and which relates to an attachment for rent and supplies. The alleged tenant, Gardner, replevied the hay in accordance with section 2856, Code of 1906 (section 2354, Hemingway's Code), giving the proper bond as provided by...