Whittaker v. Goodwin
| Decision Date | 27 June 1910 |
| Citation | 97 Miss. 663,53 So. 413 |
| Court | Mississippi Supreme Court |
| Parties | HIRAM HENRY WHITTAKER v. CHARLES EDWARD GOODWIN |
Suggestion of error overruled.
C. S. Thames and L. Brame, for appellee, after the delivery of the foregoing opinion, presented a suggestion of error, insisting that the judgment of the court below should be affirmed, because:--
The stenographer's notes of the testimony were not filed until May 11. They were not approved by the judge until May 12, 1909. This was about four months after the trial.
The statute provides that bills of exception must be filed during the term or within sixty days. Code 1906, § 796.
The record of this case does not show that the stenographer's notes were ever presented or filed or approved or dealt with in any way within ninety days, as required by the express provisions of section 797 of the Code. These provisions have been held by this court to be mandatory, and hence the notes of the testimony in this case cannot be considered, and we assume were not considered by this court in deciding the case.
As stated in the authorities, the reason for requiring the separate valuation of different articles in cases of this kind was to authorize the defendant to surrender, if he shall see proper, any one or more of the articles. In this case as the bond given by the defendant recited that it was for the pair of mules of the value of fifty dollars each manifestly the defendant or his sureties could have complied with the bond pro tanto by surrendering either of the mules at fifty dollars. Besides, if this was a pair of mules each valued at fifty dollars, and the pair being valued at $ 100, we submit that a valuation of $ 100 was sufficient.
In Drame v. Hilzheim, 13 Smed. & M. 336, a barouche and harness were regarded as part of a whole, and the court refused to grant a new trial because one value was placed by the jury upon both.
In Henry v. Dillard, 68 Miss. 536, a mare and colt were valued at seventy-five dollars and this was held sufficient.
As we understand, the reversal was based upon the sole ground that the value of the mules was not assessed separately. Do not overlook the statute, Code 1906, § 778. This statute was originally Hutchinson's Code, p. 849, and related alone to verdicts in detinue.
In Drame v. Hilzheim, 13 Smed. & M. 336, by analogy, this statute was applied to actions of replevin, and it was held that in such actions where there was a verdict for plaintiff but no, assessment of separate articles, the judgment could be reversed only for the purpose of awarding a writ of inquiry to assess the separate values.
The same was held in Rushing v. Rushing, 52 Miss. 329, last paragraph of opinion. And also in Spratley v. Kitchens, 55 Miss. 578.
The above mentioned statute was article 184, p. 509, Code 1857, section 625, 1871, and section 1584, Code 1880. In this Code the word "detinue" was stricken out and the statute was made applicable to all cases. It was carried forward as section 720, Code 1892, and became section 778, Code 1906.
Under this statute and the decisions construing it, it seems to us obvious that there should not be a reversal, even if we are wrong in our other contentions. And at most, if there is a reversal, it should be only for the purpose of awarding a writ of inquiry to assess the separate values. There can, of course, be no reason for trying the entire case anew, for the only defect is in ascertaining the separate values.
The reversal of this case on the ground set out in the opinion rendered would not result in a new trial. It would be remanded for the purpose alone of awarding a writ of inquiry to assess the value of the property and the rendition of the proper judgment on the verdict of the jury in response to such writ. Rushing v. Rushing, 52 Miss. 329; Spratley v. Kitchens, 55 Miss. 578. On the former consideration of ...
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