Opinion
No. 34690.
October 27, 1941. Suggestion of Error Overruled November 24, 1941.
1. REPLEVIN.
In order for plaintiff in replevin to avail itself of privileges of statute providing that if officer's return on writ shows failure to take the goods, but that defendant has been summoned, plaintiff may declare and prosecute action for recovery of value of goods and damages for taking or detention thereof, there must be a change not merely of purpose but of pleading, and plaintiff must "declare" his action as for value before he can "prosecute" it (Code 1930, secs. 3095, 3097).
2. REPLEVIN.
In replevin for possession of automobile, defendant had right by default in joining issue to waive his defense to claim for possession, and by such default defendant did not "waive" for plaintiff his duty to follow procedural requirements of statute relating to declaration and prosecution of action for recovery of value in case officer's return on writ of replevin shows failure to take the property but that defendant has been summoned (Code 1930, secs. 3095, 3097).
3. REPLEVIN.
The statute relating to pleadings in a replevin action contemplates that the declaration in replevin will be filed after and in the light of the disclosure of the return on the writ (Code 1930, sec. 3097).
4. PLEADING.
To "declare" means, in pleading, to state by declaration the cause of action.
5. JUDGMENT.
In replevin for possession of automobile wherein defendant was served with process and no property was seized under the writ, but declaration remained one for possession and there was no declaration filed to recover value of property, as authorized by statute, entry of default judgment against defendant for value of automobile was error (Code 1930, secs. 3095, 3097).
APPEAL from the circuit court of Hinds county, HON. J.F. BARBOUR, Judge.
E.W. Stennett, of Jackson, for appellant.
The judgment entered could not be rendered on the declaration, because no cause of action stated in declaration.
Penn Mutual Ins. v. Keeton, 95 Miss. 708, 49 So. 736; Krosmopolski v. Paxton, 58 Miss. 581; De Vane Chevrolet Co. v. Montgomery-Ward, 165 Miss. 185, 147 So. 335.
The judgment entered could not be rendered on the declaration because the relief obtained was not prayed for.
It is not contemplated that a declaration in replevin be filed until after the writ is issued and served. (Code 1930, Sec. 3097.) At this stage of the proceeding, the plaintiff can sue for possession, or he can sue for the value, in some cases. It he sues for possession, he must prove the value, and his judgment must be for a surrender of the property, or the payment of its value. The plaintiff alone has the right to "elect" which course to take. The prayer of appellee's declaration was "for the possession of said automobile" and costs, under which he could be entitled only to a judgment for its surrender, or the payment of its value.
However, Section 3095, Code of 1930, provides that if the return shows a failure to take the property, but that the defendant has been summoned, the plaintiff may declare and prosecute the action for the recovery of the value of the property. The judgment recites that the plaintiff "elected" to declare and prosecute for the value of the property. Perhaps he did elect, but he wholly failed to declare.
The word "declare" means to publish, to make known, and as used in our statute, to publish and to make known to the defendant as well as the court.
"With reference to pleadings, it means to draw up, serve, and file a declaration, for example a `rule to declare'; also to allege in a declaration as a ground or cause of action as `he declares upon a promissory note.'"
Black's Law Dictionary; 26 C.J.S. 39.
It is easy to understand that a defendant in a declaration for mere possession might be willing to let it go by default; whereas under a declaration for the cash value of the property and disregarding its surrender might be anxious to appear and defend. He certainly has the right, under our form of government, to be clearly informed as to what he is being sued for, and why; and after having been so informed, he has the right to rely on courts giving judgment only for what he has been sued for, and only for what has been demanded of him in the declaration. In the case at bar, this fundamental right was wholly disregarded.
Harold Cox, of Jackson, for appellee.
Appellant attacks the sufficiency of the declaration to support the action in replevin. It is submitted that the declaration contains all of the necessary averments to support the action and uphold the judgment.
See Young v. Terry, 129 Miss. 281, 92 So. 76; Quarles v. Hutcherson, 139 Miss. 356, 104 So. 148; North v. Delta Chevrolet Co., 194 So. 478, 188 Miss. 252.
Having filed a proper declaration in replevin, and there being a proper affidavit in replevin filed to support the action, the officer failed to take the property. The appellee thereupon elected to declare and prosecute its action for the value of such property rather than the possession thereof. It was unnecessary in such event for the appellee to have filed another declaration or to have made any change therein. Section 3095, Mississippi Code of 1930, among other things, provides under such circumstances that "the plaintiff may declare and prosecute the action for the recovery of the value of the property, and damages for the taking or detention of the property, as if he had thus commenced his action." The court will notice that the judgment in this case in all things conforms to every requirement of this statute.
The appellant says that we were obliged to frame the declaration either for the possession of the property or for a recovery of its value. The court will notice the declaration provides that the plaintiff demands judgment for the possession of the automobile and costs "as in such cases provided by law." Counsel misunderstands the provision of Section 3097, Mississippi Code of 1930, when he said that it is not contemplated that the declaration be filed until after the writ is served. The section simply provides that the declaration may be filed after the writ is served and at any time before a dismissal of the action, but it is not forbidden that the declaration and affidavit may be filed together even before the issuance of the process. Under Section 3095, Mississippi Code of 1930, it would certainly be proper under such circumstances for the plaintiff to elect, as it did in this case when the defendant was served with process and the property was not taken, to "declare and prosecute" the action for the recovery of the value of the property ". . . as if he had thus commenced his action." That is the very language of Section 3095 itself, and there could be no better answer than that to the contention of counsel.
Argued orally by E.W. Stennett, for appellant.
The action was here instituted in replevin for the possession of an automobile alleged to have been unlawfully detained by appellant and to the possession of which appellee was entitled. The record is incomplete in respects which would be of importance if the case were not to be reversed.
The requisite affidavit was made before a justice of the peace and for some reason was thereupon attached to and filed with the declaration in the circuit court. The declaration alleges the value to be $250 and that "said automobile is wrongfully detained by and is in the possession of the defendant" and "plaintiff sues and demands judgment of said defendant for the possession of said automobile." The writ and return thereon are not in the record, but a judgment by default recites that the "defendant R.L. Grissom was served with process more than five days prior to this term and that the sheriff has made proper return showing such service of process on the defendant, but no property was seized by the writ of replevin." Putting aside a consideration of the sufficiency of the last clause to justify the prosecution of the action as one for value only under Section 3095, Code 1930 (as to which compare Krosmopolski v. Paxton, 58 Miss. 581, and Meyer v. Mosler, 64 Miss. 610, 1 So. 837), and of the sufficiency of the recitals in the judgment (as to which compare Hogan v. Commercial Credit Co., 150 Miss. 653, 116 So. 298), we give our attention to the further recital of the judgment that "the plaintiff appeared by its attorney and in open court elected to declare and prosecute this action for the recovery of the value of the property in suit." The judgment discloses allowance of a writ of inquiry and a verdict of the jury fixing the value at $250.
The language last quoted is borrowed from the letter of Section 3095, Code 1930, which is as follows: "If the return of the officer on writ shows a failure to take the goods and chattels, but that the defendant has been summoned, the plaintiff may declare and prosecute the action for the recovery of the value of property, and damages for the taking or detention of the property, as if he had thus commenced his action."
In order to avail of the privileges of this section, there must be a change not merely of purpose but of pleading. The plaintiff must "declare" his action as for value before he can so "prosecute" it. The declaration here remains as one for possession as in replevin. The defendant had the right by default in joining issue to waive his defenses to such claim. By his default he did not waive for the plaintiff his duty to follow the procedural requirements of the statute. The defendant may have been willing to stand judgment for possession but not for value, and it is no answer that in a proper case plaintiff in replevin may procure an alternative judgment for possession or value. Other considerations could be advanced to clarify the purpose of the statute, but it is sufficient to state that Section 3097, Code 1930, contemplates that the declaration in replevin will be filed after and in the light of the disclosure of the return on the writ. The right to proceed under Section 3095 was recognized in Krosmopolski v. Paxton, 58 Miss. 581, but the method was not discussed because in that case the suit, as to one count, was declared and prosecuted in the outset as for value. To declare means in pleading, to state by declaration the cause of action. 26 C.J.S., Declaration, 39; Black's Law Dict. (3 Ed.), p. 532. Plaintiff may have "elected" to declare its action for the recovery of the value only; but it did not do so, either by amendment or otherwise. The judgment entered thereunder is, therefore, erroneous and must be set aside. No doubt, upon a rehearing, the other irregularities or deficiencies in the record will be corrected.
Reversed and remanded.