Willsford v. Meyer-Kiser Corp.

• Decision Date: 25 May 1925
• Docket Number: 24829
• Citation: 104 So. 293,139 Miss. 387
• Court: Mississippi Supreme Court
• Parties: WILLSFORD et al. v. MEYER-KISER CORPORATION. [*]

104 So. 293

139 Miss. 387

WILLSFORD et al. v. MEYER-KISER CORPORATION. ^[*]

No. 24829

Supreme Court of Mississippi

May 25, 1925

Division B

1 JUDGMENT. Trial. Judgment entered at term at which writ returnable to day subsequent to beginning of circuit court but during term was returned is erroneous, and, though not subject to collateral attack, may be corrected by appeal.

Where a writ of seizure was issued and returned to a day subsequent to the beginning of the circuit court but during such term the cause is triable at the next succeeding term, and a judgment entered at the term at which the writ was returned is erroneous, though not subject to collateral attack, and may be corrected by appeal.

2. CONTINUANCE. On continuance of case on writ of seizure for term, defendant and sureties on forthcoming bond may depart from court unless served with notice of motion to set order aside.

When the case so made returnable is continued for the term by an order entered on the minutes, the defendant and the sureties on his forthcoming bond may depart from court until the next term, unless they are served with notice of a motion to set same aside, and in the absence of such notice it is error to set aside the order of continuance.

3. JUDGMENT. On judgment under writ of seizure for amount sued for, with interest, further judgment for damages for depreciation of automobile seized was error.

Where in such case a judgment is taken for the amount sued for with interest, and the automobile seized is valued in the judgment at such amount, it is error to render a further judgment for damages for depreciation of the automobile because the effect is to increase the demand of the plaintiff above the total sum demanded in the petition.

HON. S F. DAVIS, Judge.

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

Suit by the Meyer-Kiser Corporation against T. F. Willsford and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Judgment reversed and case remanded.

J. L. Williams, for appellants.

The judgment appealed from is erroneous, and should be reversed by this court. 'The summons was erroneous in that it violates section 3916, Code of 1906 (section 2923, Hemingway's Code,) which required that the summons shall be made returnable on the first day of the term. The summons here was returnable on the fourth Monday of March, whereas the return day was the third Monday of March. (Laws 1922, ch. 148.) That this judgment was erroneous and the error harmful to the defendant is held in the case of T. A. Howard Lumber Co. v. Hopson, 101 So. 363.

The judgment is clearly erroneous for the reason that the bond was given under section 151, Code of 1906 (section 143, Hemingway's Code), and the rights of the plaintiff to a judgment are governed strictly by section 172, Code of 1906 (section 164, Hemingway's Code). We have in this record a case where the plaintiff, by continuing his cause for the term, and afterwards re-opening same during the part of the term set apart for criminal business, on a demand, according to his own sworn pleadings, amounting to the maximum of one thousand forty-five dollars and fifty-six cents, has a judgment against appellants in the sum of one thousand seven hundred forty-five dollars and forty-six cents, and the sureties have been deprived of the right guaranteed them by section 164, Hemingway's Code, to have the judgment satisfied and discharged by delivering the property to the sheriff within ten days after the execution had come into his hands. Counsel evidently confused the present proceedings with the proper procedure in a replevin suit. That a failure to comply with the statute vitiates the verdict is held in the following case: Bedon v. Alexander, 47 Miss. 254. For the foregoing reasons, I respectfully submit that the judgment appealed from is erroneous and should be reversed by this court.

R. J. Petty, for appellee.

Appellants contend first that the bond executed by them was given under section 151, Code of 1906 (Hemingway's Code, section 143), with the appellant Willsford as principal, and the other appellants as sureties, and then on page three of appellants' brief, they contend that they executed bond under section 153, Hemingway's Code, but in either instance the bond executed provides for the return of the property and in default thereof, to satisfy said judgment to the value of the property. A replevin bond is simply a bond which has the effect to give the maker thereof possession of the property involved. Rawl's Bouvier (3rd Ed.) p. 2891. This is as effectually accomplished by a bond to discharge the writ as a forthcoming bond. They are both replevin bonds in the sense of the statute, and that the bond executed by appellants was authorized by law under the purchase money lien proceedings. The appellants in fact executed a bond conditioned for the satisfaction of whatever judgment the court would render in the action of replevin begun by plaintiff against the defendant, Willsford. They are, therefore, bound, both the principal and sureties, by the terms of the bond.

Counsel for appellants urge that the proceedings in the present case were confused with the regular replevin proceedings. This suit was begun under section 2437, Hemingway's Code, which provides for the enforcement of purchase money liens on personal property. A writ of seizure, accompanied by affidavit was issued, the property seized and released on bond executed by appellants, and then judgment rendered for the return of the property, or to pay the value thereof, to-wit: one thousand forty-five dollars and forty-six cents. This was the proper judgment to be entered and thereby made the sureties on the bond executed by the defendant, Willsford, liable. This question is discussed in full in Flanagan v. King-Peeples Auto Company et al., 94 So. 841.

The court will see from the bond that it was conditioned for the satisfaction of whatever judgment might be rendered against appellants, and that they are liable under the judgment which was rendered against them.

From an examination of the record in this cause, it will be seen that the writ of seizure was issued on December 3, 1923, and the return made on the writ by the sheriff on the same day, returnable to the fourth Monday of March, 1924, some three months later. Can the property seized by the sheriff in December, 1923, be brought into court in March, 1924, three months later, and deliver this property to appellees as the same property which was seized in December, 1923? Does he contend that this property was not damaged during the time it was seized until it was delivered to appellees? Does he contend that the appellees are not entitled to damages for the damages suffered to the property for the three months that it was in the possession and the use of one of the appellants, Willsford, and that the appellants are not liable for the damages suffered to this property? Was the property damaged? The court says that it was, that it was damaged to the extent of seven hundred dollars, and the court so instructed the jury as to the amount of damages suffered to the car, and the jury promptly returned the verdict as so directed. This court fixed the measure of the seller's damages in the recent case of Austin Machinery Co. v. Clark-Hunt Contracting Co., 103 So. 1.

I submit, therefore, that the judgment entered in this case is not erroneous, but it is just what the appellees are entitled to under the law.

Counsel contends that the summons in this cause is erroneous for the reason that it commanded the defendant, Willsford, to appear on the fourth Monday of March, 1924, whereas the circuit court of Sunflower county, Mississippi, convened on the third Monday of March, and cites the case of Howard Lumber Company v. Hopson, 101 So. 363, as his authority that the summons was erroneous. In the Howard case, the summons was made returnable to the past due date, whereas in the present case, the summons was made returnable to a future date, even later than the first Monday of the term of court, and judgment rendered at a later date than the fourth Monday, although the appellants here, defendants below, executed a bond conditioned for the forthcoming of the property to the 17th day of March, 1924, which was the third Monday of March, 1924, and they, therefore, knew, by executing said bond that the court convened on the 17th day of March, 1924, or at least knew that they were to appear in Indianola, Mississippi, on that date, and that they were to have the property replevied by them in court on that date, and that it was not the fourth Monday of March on which they were to appear. This case is entirely different from the Howard case cited by appellants.

I submit that the process was not erroneous to such an extent as to make the judgment void. Sweatman v. Dean, 86 Miss. 641. Appellants further contend that it was harmful error to them for judgment to be rendered against them during that part of the term of court set aside for criminal business. But see Mann's Mercantile Co. v. A. B. Smith, 107 Miss. 16.

From the foregoing decision of this court, it is evident that a suit of civil nature can be tried at any time during the term of court, be it that part of the term set aside for the trial of criminal causes, the division of time being for convenience only, and not to limit the right of the court to dispose of cases properly before it, at any time during the term of court.

An order of continuance was entered in this cause on Wednesday March 26, 1924. It is to be presumed that this order was entered upon good cause shown to the court at the time it was entered, as shown by the motion on page 16 of the record, which motion was filed to have said...