Opinion
No. 31158.
January 21, 1935.
REPLEVIN.
Affidavit in replevin by corporation's treasurer alleging that affiant, instead of corporation, owned property and was entitled to possession, held defective and not to give circuit court jurisdiction to try action (Code 1930, section 3079).
APPEAL from circuit court of Attala county.
HON. JOHN F. ALLEN, Judge.
Replevin by the Choctaw Culvert Machinery Company against S.G. McCool. From a judgment in favor of defendant, plaintiff appeals. Reversed and remanded.
D.H. Glass and J.D. Guyton, both of Kosciusko, for appellant.
This court has repeatedly held that where personal property is sold by a sale contract whereby the seller retains title until the purchase money is paid, replevin will lie, if the entire purchase price has not been paid.
McPherson v. Acme Lbr. Co., 70 Miss. 649, 12 So. 857; Kerl v. Smith, 96 Miss. 827, 51 So. 3; Duke v. Shackelford, 56 Miss. 552; Polle v. Rouse, 73 Miss. 713, 19 So. 481.
As replevin is strictly a possessory action, it lies only in behalf of one entitled to possession. Not only must the plaintiff have the right to possession generally, but he must have the right to immediate possession as well as exclusive possession at the time of the commencement of the action.
54 C.J. 435, Sec. 46; McKean v. Mathews Apparatus Co., 74 Miss. 119, 20 So. 869.
The judgment entered in this case is not in accordance with the law, nor is it in accordance with the verdict of the jury, nor is it in accordance with the defendant's special plea of tender.
James T. Crawley, of Kosciusko, for appellee.
Under the plea of general issue in a replevin suit anything may be proven which will prevent the plaintiff from proving his claim.
Hagan v. Commercial Credit Company, 150 Miss. 653, 116 So. 298.
Appellee would respectfully call the attention of the court to the fact that even if all the errors complained of by the appellant were well taken, that the plaintiff would have no standing in court. The affidavit as originally issued and upon which this suit is based is faulty and failed to confer jurisdiction upon the circuit court of Attala county, Mississippi. In the affidavit it is charged that A.S. Ullathorne, treasurer of Choctaw Culvert Machinery Company makes affidavit that this property, the property of affiant is wrongfully detained, etc., and that the affiant is legally entitled to the immediate possession thereof. While all the proof throughout the case as a whole goes to show that the property was not the property of A.S. Ullathorne, treasurer of Choctaw Culvert Machinery Company, a corporation, but was the property of the Choctaw Culvert Machinery Company.
Herrington v. Stimpson Computing Scale Co., 131 So. 878.
This is an action of replevin instituted in the circuit court of Attala county. There was a verdict and judgment in the lower court for appellee, the defendant in replevin, the plaintiff having theretofore in due time executed a bond for the forthcoming of the property and gone into possession thereof. The judgment for the defendant, we will assume, was in the alternative, but in some respects it was unusual.
The affidavit filed as the basis of the suit is as follows:
"State of Tennessee, Shelby County. Before me an officer duly authorized to administer oaths, A.S. Ullathorne, treasurer of Choctaw Culvert Machinery Company, a corporation of Memphis, Tennessee, makes affidavit that one 5L-St. Jaeger mixer on steel wheels complete, serial No. 57066 of the value of three hundred fifty dollars the property of affiant is wrongfully detained by S.G. McCool in Attala County, Mississippi, and that this affiant is legally entitled to the immediate possession thereof; wherefore he prays a writ of replevin for the seizure of said property. A.S. Ullathorne, Treasurer of Choctaw Culvert Machinery Co., Inc., Memphis, Tennessee.
"Sworn to and subscribed before me this the 2nd day of January, A.D., 1932. T.B. Daniel, Notary Public. My commission expires April 21st, 1935."
It will be observed that the affidavit is made by A.S. Ullathorne, treasurer of the Choctaw Culvert Machinery Company, and alleged that the property is that of the affiant, and the affiant is legally entitled to the immediate possession thereof. On the trial in the court below, there was no point made upon the defect in the affidavit. There was no attempt to show that Ullathorne, treasurer, was entitled to the possession of the property. The case was litigated between the machinery company and McCool. In this court the appellee points out that the appellant has no standing in this court, for the reason that there was no proper affidavit in replevin as the basis of this suit, and, relying upon the case of Herrington v. Stimpson Computing Scale Co., 159 Miss. 416, 131 So. 878, 879, 880, asks that we now reverse and remand the case in order that it may be dismissed in the lower court. Appellee contends that this case is not in point. In the Herrington Case this court decided that an agent or attorney may make the affidavit in replevin for the principal, but that the affidavit must allege that the principal is entitled to the immediate possession of the property, and the affidavit, failing to so allege, was so defective as not to confer a jurisdiction on the lower court under section 3079, Code 1930. In that case the court further said: "In the absence of an affidavit that the plaintiff was entitled to the property, the court was without jurisdiction of the cause; and since a proper affidavit is necessary to confer jurisdiction in replevin, the absence thereof can be raised for the first time on appeal."
We therefore reverse and remand this cause, and we have not considered the appeal on its merits.
Reversed and remanded.