Winner v. Williams
| Decision Date | 30 November 1903 |
| Citation | 82 Miss. 669,35 So. 308 |
| Court | Mississippi Supreme Court |
| Parties | MAURICE WINNER ET AL. v. EDWARD C. WILLIAMS |
FROM the circuit court of Lauderdale county. HON. GUION Q. HALL Judge.
This was an action of replevin for a boiler and originated in the court of a justice of the peace, the appellee, Williams being plaintiff, and the appellants, Winner and others, doing business under the name of "Winner & Meyer," defendants. From a judgment in favor of defendants plaintiff appealed to the circuit court, where the defendants moved to dismiss the appeal because the appeal bond was not filed within five days after the judgment was rendered by the justice of the peace. On the trial of this motion the plaintiff, Williams, testified that he gave the appeal bond to the constable of the court on the third day after the judgment was rendered, who promised to deliver it to the justice of the peace. The constable testified that he went into the justice of the peace's office, and offered the bond to him, and read the names of the bondsmen to him, and he (the justice of the peace) said: that he did not hand the bond to the justice of the peace but that officer said it was all right; that be kept the bond several days, and gave it to the justice of the peace, who then marked it filed as of the day he offered it to him. The justice of the peace testified that the constable did come into his office and told him he had the appeal bond in the case, and the witness told him to deliver it some other time, as he was busy then; this was within the five days allowed to make the appeal; but nothing was said as to who the sureties were, and he did not know who they were until the bond was handed to him a good many days after the five days had expired. The court overruled the motion to dismiss the appeal. The facts, as presented on the trial of the merits of the case, are fully stated in the opinion of the court.
Affirmed.
Etheridge & McBeath, for apppellants.
1. The appeal was invalid under the facts shown. 1 Enc. Pl. & Pr., 977, 989. Kramer v. Holster, 55 Miss. 243; 8 Enc. Pl. & Pr., 924; Hamilton v. Beardsley, 51 Ill. 478.
2. The boiler was a fixture, had become a part of the realty, and clearly passed to the purchaser at the sale under the trust deed. 13 Am. & Eng. Enc. L. (2d ed.), 613, 628, 633; Simpson Brick Press Co. v. Warnerly, 61 Ill.App. 460; Winslow v. Merchants Ins. Co., 38 Am. Dec. , 368; Green v. Phillips, 26 Gratt. (Va.), 752; Taylor v. Collins, 51 Wis. 123; Watris v. Nat. Bank Cambridge, 124 Mass. 575; McConnell v. Blood, 123 Mass. 47; Tate v. Blackburne, 48 Miss. 9; Range Co. v. Allen, 7 South. Rep., 499; Phoenix Iron Works v. N. Y. Security Co., 83 F. 757.
3. The plaintiff had only a half interest in the boiler, and replevin does not lie as between joint owners. Holton v. Beirne, 40 Miss. 391.
R. F. Cochran, for appellee.
1. There was no failure to tender a sufficient appeal bond, and there was in legal contemplation a filing and approval by the justice within the statutory period. His omission to properly indorse the bond until a subsequent day is immaterial. Robinson v. Mhoon, 68 Miss. 712, 1 Enc. Pl. & Pr., 990.
2. The boiler did not become a part of the realty in view of the circumstances under which it was placed on the demised premises by the tenant. Weathersby v. Sleeper, 42 Miss. 732; Polle v. Rouse, 73 Ill. 713.
The finding of the circuit judge on the disputed question of fact on the hearing of the motion to dismiss the appeal from the justice of the peace court will not be disturbed. The approval of the justice of the peace indorsed on the appeal bond showed that it had been filed in due time. The fact that he did not write his approval on the paper until after the expiration of the five days allotted by law does not alter the legal status. If, as the circuit judge decided, the bond was tendered the justice of the peace in due time, the names of its sureties read to him, their sufficiency unquestioned and his approval of the bond stated, this was a legal filing, which he could not afterwards invalidate. It was the duty of the circuit court to see that when the law has been substantially complied with the rights of litigants are not prejudiced by technical errors of the inferior court, whether accidentally or...
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...can be deprived of a right by the failure of an officer to approve an unobjectionable bond seasonably tendered him for approval. Winner v. Williams, 82 Miss. 669; Redus Gamble, 85 Miss. 165. The two Covington cases cited by appellant Broom in his brief, Shotwell v. Covington, 69 Miss. 736, ......
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...land in a real action by the owner or his assignee does not impair the right of the owner of the building to remove it. In Winner v. Williams, 82 Miss. 669, 35 So. 308, it held, quoting syllabus: "A boiler on demised premises, which, with the premises, was subject to a trust deed, became wo......
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Bank v. Globe & Rutgers Fire Ins. Co, 12924.
...in a real action by the owner or his assignee does not impair the right of the owner of the building to remove it. In Winner v. Williams, 82 Miss. 669, 35 So. 308, it was held, quoting syllabus: "A boiler on demised premises, which, with the premises, was subject to a trust deed, became wor......