Summary
In Herrington v. Stimpson Computing Scale Co., 159 Miss. 416, 420, 131 So. 878, 879, 880, we held that `a proper affidavit is necessary to confer jurisdiction in replevin, the absence thereof can be raised for the first time on appeal.' This was followed in Choctaw Culvert Machinery Co. v. McCool, 172 Miss. 1, 158 So. 796, and in Tatum v. Sciscoe, 189 Miss. 803, 199 So. 70.
Summary of this case from Birdsong v. Trans-American Van Serv., Inc.Opinion
No. 28834.
January 19, 1931. Suggestion of Error Overruled March 2, 1931.
1. REPLEVIN. Foundation of replevin suit is affidavit of plaintiff averring he is entitled to immediate possession of particularly described property ( Code 1930, section 3079).
Code 1930, section 3079, provides that, if any person or his agent or attorney shall make affidavit setting forth that he is entitled to immediate possession of particular personal property therein described, a writ of replevin for such property may be issued.
2. REPLEVIN.
Affidavit as basis for writ of replevin may be made by agent or attorney of person seeking to recover possession (Code 1930, section 3079).
3. REPLEVIN.
Affidavit by plaintiff's agent or attorney as basis for writ of replevin must allege principal is entitled to immediate possession of property (Code 1930, section 3079).
4. REPLEVIN. Affidavit in replevin suit, setting forth that affiant, plaintiff's attorney and agent, was entitled to immediate possession, held insufficient to support replevin action ( Code 1930, section 3079).
Affidavit in replevin suit was made by person described as agent and attorney of plaintiff, and set forth that property therein described was property of affiant, and that affiant was entitled to immediate possession thereof. At trial there was no contention that property belonged to affiant or that he was entitled to possession.
5. REPLEVIN.
Court was without jurisdiction of replevin action in absence of sufficient affidavit showing plaintiff was entitled to property (Code 1930, section 3079).
6. APPEAL AND ERROR.
Absence of sufficient affidavit in replevin action, affidavit being necessary to confer jurisdiction, can be raised for first time on appeal (Code 1930, section 3079).
APPEAL from circuit court of Jones county, Second district. HON.W.J. PACK, Judge.
Montgomery Buchanan, of Laurel, for appellant.
The filing of the affidavit by Roy P. Noble, stating that the title and right of possession to the property was in himself, cannot be made the basis of a suit by the appellee. It is well settled that an action of replevin cannot be brought in the name of one person for the use of another, for the action involves nothing but legal rights; and, if equities are to be settled, another form of action must be resorted to.
Myer v. Moseley, 1 So. 837, 64 Miss. 610.
Welch Cooper, of Laurel, for appellee.
Any objection to the sufficiency of the affidavit or the right of an attorney to make the affidavit in behalf of a plaintiff in replevin (plaintiff being a corporation and able to act only through agents and servants) was waived by the failure of appellant to make such objection on the trial of the case. The corporation can act only through its agents, servants or employees and if it could not so act it could not maintain an action of replevin in any case.
Miss. Cent. R.R. Co. v. Pillons, 101 Miss. 527, 58 So. 483; Morris v. Robinson, Brothers Motor Co., 144 Miss. 861, 110 So. 683.
Roy P. Noble described himself as the agent and attorney of the Stimpson Computing Scale Company, on the affidavit, and certainly the word "affiant" used thereafter in the affidavit refers to him in the same character, that of the agent and attorney of the Stimpson Computing Scale Company.
Pearce v. Twichell, 41 Miss. 344.
This is a replevin suit which was instituted in the court of the justice of the peace of Jones county, Mississippi, upon an affidavit averring that Roy P. Noble, described as the attorney and agent for Stimpson Computing Scale Company, a corporation, made oath that a certain computing scale therein described, the property of the affiant, was wrongfully detained by W.O. Herrington, and that "this affiant is legally entitled to the immediate possession thereof." Upon this affidavit, a replevin writ was issued, and executed by the proper officer by taking into his possession the scale described, and by summoning the said W.O. Herrington. The cause proceeded to trial in the justice court between the Stimpson Computing Scale Company, as plaintiff, and the said W.O. Herrington, as defendant, and resulted in a judgment for the defendant, from which the plaintiff appealed to the county court. In the county court the trial was resolved into an issue of debt depending for its solution upon the question of whether or not two certain checks, amounting in the aggregate to sixteen dollars and seventy cents, had been paid. The jury found for the defendant, and from the judgment entered, an appeal was prosecuted to the circuit court, where the judgment of the county court was reversed and the cause was remanded to the county court with directions that a judgment be entered awarding possession of the scale to the plaintiff. Upon remanding the cause to the county court, a judgment was there entered in accordance with the instruction of the circuit court, and from this judgment an appeal was again prosecuted to the circuit court where it was affirmed, and thereupon appealed to this court.
The foundation of a replevin proceeding is the affidavit of the person seeking the issuance of the writ of replevin averring that he is entitled to the immediate possession of particularly described property. The statute, section 3079, Code 1930, provides that if any person, or his agent or attorney, shall make an affidavit setting forth that he is entitled to the immediate possession of particular personal property therein described, a writ of replevin for such property may be issued. Under this statute the required affidavit may be made by the agent or attorney of the person seeking the issuance of the writ, but, in such case, the affidavit must set forth that the principal, and not the agent or attorney, is entitled to the immediate possession of the property involved. In the case at bar, the affidavit was made by one who was described as the agent and attorney of the Stimpson Computing Scale Company, but it set forth that the property therein described was the property of the affiant, and that he (the affiant, Roy P. Noble) was entitled to the immediate possession thereof. In the trial of the cause there was no contention that the property belonged to the affiant, or that he was entitled to the possession thereof. In the case of Meyer v. Mosler, 64 Miss. 610, 1 So. 837, 838, it was said that: "It is well settled that an action of replevin cannot be brought in the name of one person for the use of another, for the action involves nothing but legal rights." Consequently, the affidavit filed in this cause setting forth that the affiant had the legal title, and was entitled to the immediate possession, of property described would not support an action of replevin by the Stimpson Computing Scale Company to recover possession of the property. 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. For the reasons above indicated, the judgment of the court below will be reversed, and the cause remanded.
Reversed and remanded.