Winn v. Eatherly
| Decision Date | 04 December 1939 |
| Docket Number | 33915 |
| Citation | 187 Miss. 159,192 So. 431 |
| Court | Mississippi Supreme Court |
| Parties | WINN v. EATHERLY |
APPEAL from the circuit court of Washington county HON. S. F. DAVIS Judge.
Action of replevin by Wilson R. Eatherly against L. M. Winn. From a judgment for plaintiff, defendant appeals. Affirmed.
Affirmed.
Wynn Hafter & Lake, and G. Ramsey Russell, all of Greenville, for appellant.
The county court erred in overruling motion of counsel for the appellant that Hon. M. F. Pierce recuse himself as trial judge for the reason that said Hon. M. F. Pierce was not qualified to try said cause.
Sec 165, Const. of the State of Miss.
The Constitution being the prevailing law of the state, it is submitted that Section 737 of the Mississippi Code of 1930 cannot stand and the procedure provided under said section cannot be followed. Section 738 of Mississippi Code of 1930 providing for special judges is in accordance with Section 165 of the Constitution and should have been followed.
The county court erred in permitting the appellee, over the objection of the appellant, to amend his declaration on the trial of this cause by making the will of Annie P. Eatherly deceased, an exhibit to said declaration although said will had not been made an exhibit to said declaration when such declaration was filed. The court further erred in allowing the appellee to introduce in evidence the will of Annie P. Eatherly, deceased.
The county court erred in not granting the appellant's request of a peremptory instruction. Nowhere in the record is there any proof on the part of the appellee showing that the appellee was entitled to the possession of the articles sued for. Replevin is purely a possessory action, and an ownership entitling possession as well, or else the right to possession itself, must definitely be proved in a replevin action in order for the plaintiff to recover. Proof of an ownership without further proof that such ownership also gives the right to possession is not sufficient.
Coleman v. Low, 13 So. 227; Garmon v. Fitzgerald, 151 So. 726-728.
It is admitted that generally where there is a dispute between an heir at law and an executor as to whether an article located on land and used in connection with it is a fixture and becomes a part of the realty, or is personal property, doubt will be generally resolved in favor of the heir at law. However, in this case, the contest is not between an heir at law and an executor but is between the agent of the heiress at law, Anne. Hargrave Bridges, who is also the residuary devisee and legatee on the one hand, and the devisee who was not an heir at law, to-wit, Wilson R. Eatherly. Therefore, the rule as to a contest of this nature between an executor and an heir at law does not apply here.
It cannot be said that even if these articles, the recovery of which is sought, should be considered as fixtures, that as such fixtures they were any more attached to the lands devised to the appellee than they were to the lands devised to the appellant, since they were originally placed upon a single tract of land, for the beneficial use of the entire tract. It follows that the question of whether these articles were fixtures or not does not determine the question as to whether the appellant or the appellee is entitled to the possession of them.
Ernest Kellner, of Greenville, for appellee.
Without the citation of any authority, counsel contend that Section 737, Code 1930, violates Section 165 of the Mississippi Constitution, and that therefore the county judge of Leflore County was disqualified to try this case. This court has held that because there is no inhibition in Section 165 of the Constitution of 1890 it does not deprive the Legislature of the power of passing laws authorizing the selection of special judges.
Powers v. State, 83 Miss. 691.
The County Court Act provides that the rule of pleading, practice, and procedure in the county court shall be the same as those established as governing the several other courts as respects the several matters mentioned; that is to say, if the matter be such as would be in the Circuit Court, the practice shall be the same as in the Circuit Court.
Counsel argued that the county court erred in permitting the appellee to amend his declaration and make the will of Mrs. Annie P. Eatherly an exhibit thereto and in permitting the same to be introduced in evidence. Even assuming, which I do not concede, that the will or a copy thereof, was a necessary exhibit to the declaration, a mere reference to Section 567, Code 1930, permitting amendments to any pleading or proceeding at any time before a verdict in the Circuit Court, which, of course, is applicable to the county court, demonstrates that the county court did not err in permitting the amendment and in allowing the will to be introduced in evidence.
The only question involved in this case and which was submitted to the jury under proper instructions is whether or not the property described in the declaration and writ were fixtures on the land devised to the appellee in Item 6 of the will of Mrs. Annie P. Eatherly. On this question I think the proof in this case is under the decisions of this court sufficient to have warranted the giving of the peremptory instruction requested by the appellee. That being true, the appellant cannot complain that his requested peremptory instruction was refused and the case submitted to the jury.
Under the decisions of this court the rule is well established that as between heir and devisee the rule as to fixturs is highly in favor of the devisee, and if the property in question though slightly attached was placed on the land by the testator and was necessary or useful in the enjoyment of the land, such property is a fixture and passes to the devisee as against the heir.
Richardson v. Borden, 42 Miss. 71; Frederick v. Smith, 147 Miss. 437; M. L. Virden Lumber Co. v. Sherrod, 167 Miss. 297.
As to all of the property involved in this case, the record shows that it was placed on the land by the testator, was attached thereto, had been there...
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...cannot be determined in a proceeding before the judge being questioned, or an appeal. Spradling v. State, 17 Ala. 440; Winn v. Eatherly, 187 Miss. 159, 192 So. 431; Wright v. State, 3 Ala.App. 24, 58 So. 68. Aside from this procedural question, and laying to one side the question of the leg......
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...relating to the case. Nelson v. State, 626 So.2d 121 (Miss. 1993); Herring v. Herring, 571 So.2d 239 (Miss.1990), Winn v. Eatherly, 187 Miss. 159, 192 So. 431 (1939); Adams v. Mississippi State Bank, 75 Miss. 701, 23 So. 395 (1897). Conversely, Beatrice argues that Chancellor Grist's author......
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