Young v. Terry

• Decision Date: 12 June 1922
• Docket Number: 22669
• Citation: 92 So. 76,129 Miss. 281
• Court: Mississippi Supreme Court
• Parties: YOUNG v. TERRY

92 So. 76

129 Miss. 281

YOUNG v. TERRY

No. 22669

Supreme Court of Mississippi

June 12, 1922

1 REPLEVIN. Declaration stating facts showing title and right to possession in defendant is subject to demurrer.

Where a declaration in replevin attempts to state the facts under which the plaintiff is the owner and entitled to the possession of the property, and the facts so stated affirmatively show that the title and right of possession are both in the defendant, a demurrer was properly sustained to this declaration.

2 REPLEVIN. Declaration stating that plaintiff is owner and entitled to possession, without alleging why, held not subject to demurrer.

Where an amended declaration in a replevin suit is thereupon filed which declaration omits to state in detail why the plaintiff is the owner, and why entitled to the possession of the property, but merely states the facts that she is the owner and entitled to the immediate possession of the property, and that the defendant wrongfully retains possession of it, this states a good cause of action, and a demurrer thereto should be overruled.

3. REPLEVIN. On demurrer to amended declaration, the court cannot consider the original declaration, where it is not an exhibit.

Where a defendant demurs to an amended declaration, which amended declaration does not make the original declaration an exhibit thereto, the court, in passing upon the sufficiency of this declaration, cannot look to nor consider the averments contained in the original declaration, but is confined to those of the amended declaration.

HON. S F. DAVIS, Judge.

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

Replevin suit by Mrs. I. N. Young against Robert Terry. Demurrer to declaration sustained, and plaintiff suggests error. Reversed and remanded.

Judgment reversed, demurrer overruled, and cause remanded.

J. C. Wasson and Monroe & McClurg, for appellant.

This case started off wrong by the improper incorporation into a simple declaration in replevin the averment of matters by way of recital attempting not so much to show the title of the plaintiff as in explanation of how the property got into the hands of the defendant. That surplusage, led to the demurrer to the original declaration. The third ground assigned attacking the irrelevant matter dominated all others, and that in turn, let the case improperly into the "sign statute" always a question of fact. Upon that false issue the court sustained the demurrer. The demurrer was as improperly interposed as the recitals in the declaration were redundant or worse. The law of the case was not and in the nature of the case could not possibly be settled by demurrer. Defendant's remedy in such state of case was to move to strike the surplusage, or better for him, to have joined issue and to go to trial.

But the court after sustaining the demurrer allowed the plaintiff to amend generally, and she did so by omitting the surplus and needless recitals, and the defendant demurred to the amended declaration when he should have objected to the filing, that being overruled, to except to the decision of the court in allowing it filed. Hemingway's Code, section 558, superseding the common-law rule of demurrer.

The demurrer to the amended declaration aside from being the wrong procedure hangs on to the useless and improper recitals as in the first declaration, and counsel insists upon the right to do that. Those improper recitals had, by leave of court unobjected to and not excepted to by defendant, been eliminated from the declaration, hence that demurrer, erroneously sustained by the court, could reach nothing beyond the allegations of the amended declaration. The matters set out in mere recitals, were of course not eliminated from the case, but remained to be proven, not as facts before the court and jury.

Counsel argue that no new matter is stated in the amended declaration. The obvious answer is that the demurrers being improper that rule is inapplicable. Nevertheless, by leave of court without objection or exception by appellee, the same cause was presented in amended form of action so as to be in effect new matter, if that was necessary. The amended declaration was at most nothing but a reformation of the original. Allegations of evidentiary facts in the pleadings should be disregarded as surplusage. New York Ins. Co. v. Brame, 112 Miss. 62.

The plaintiff may amend in a personal action even after plea by substituting for his declaration in assumpsit to a petition in rem to enforce a mechanic's lien. Weathersly v. Sinclair, 43 Miss. 189.

The form of the action being the same the plaintiff was given permission to reform his pleadings so as to change the form of action from covenant to assumpsit, and this on the suggestion of the supreme court on reversing the case. Dyer v. Britton, 53 Miss. 270.

In Helton v. McLeod, 87 Miss. 561, an attachment suit, the plaintiff was allowed to amend by fully alleging the grounds of attachment by showing in the disjunctive the distinct grounds which were alleged only in part in the original affidavit. And in Yazoo & R. Co. v. Rivers, 93 Miss. 557, an amended declaration that stated no new cause of action, although after a year was good.

The anomaly is thus presented here in which irrelevant matters, matters of proof in any event became the law of the case was not settled, and could not be so settled, have decided the case on demurrer to those extraneous matters not in the declaration at all, as the last demurrer emphatically shows.

Chambers & Trenholm, for appellee.

To the amended declaration defendant demurred upon the ground that no new facts had been brought in by the amendment, the objectionable part of the original declaration having simply been omitted, which commission did not operate to eliminate them.

The second demurrer having been sustained, plaintiff, filed a motion to vacate both orders sustaining said demurrers, and grant a trial after plea, which motion after response by defendant, was overruled and plaintiff appealed.

Appellant complains because what was stated in the declaration merely by way of explanation was made the basis for sustaining the demurrer. She urges that the first and second grounds of the first demurrer were inapplicable, and that the decision was upon the third ground. We respectfully submit that whatever matters of facts are stated in a declaration not only may, but should, be used in the consideration of a demurrer thereto. When those facts set up a complete defense to the declaration, why compel the defendant to prove them?

Appellant further complains that the demurrer states that the property in question was acquired and used in the business of Forbas &amp Co., when in fact it was only used, neither Young nor the firm having acquired the title, that adverse possession must be for three years in the case of personal property to defeat the owner, which time had not elapsed. We call attention to the fact that in the statute, hereinafter set forth, the words "used" and "acquired" are used in the disjunctive, not the conjunctive; and that the statute itself made the property in question the property of the firm as against Mrs. Young, as to creditors, so that it is not a...