Opinion
No. 36755.
April 26, 1948.
1. REPLEVIN.
In replevin to recover farming appliances, evidence established ownership in plaintiff and a mistaken possession by defendant who had bought other farming appliances from plaintiff's tenant in whose barn both sets of appliances were stored at the time.
2. NEW TRIAL.
Question of variance must be raised before verdict and by objection to the testimony, and was raised too late on motion for new trial (Code 1942, sec. 1512).
3. NEW TRIAL.
Where no attempt was made to comply with rule governing procedure where new evidence is discovered after trial, defendant would not be entitled to a new trial.
4. REPLEVIN.
In replevin where defendant filed a forthcoming bond, thereby retaining property until final adjudication, judgment adverse to defendant could only require defendant to restore property or pay value, and erroneously required defendant both to restore property and to pay value.
5. APPEAL AND ERROR.
Supreme Court could correct without reversal a clerical error in judgment misnaming plaintiff.
6. APPEAL AND ERROR.
Where judgment in replevin action requiring defendant to both restore property and pay the value was erroneous because defendant had filed a forthcoming bond, and could therefor only be required to either return property or pay value, the error was a "judicial error" requiring reversal, but not remand of cause, and Supreme Court would enter correct judgment.
APPEAL from Circuit Court of Leake County.
A.M. Warwick, of Carthage, for appellant.
It was incumbent upon the plaintiff to identify and prove that the articles described in the declaration were being unlawfully detained by defendant Rawson.
Garmon v. Fitzgerald, 168 Miss. 532, 151 So. 726; Bell v. Smith, 155 Miss. 227, 124 So. 331; Johnson v. Sanders, 148 Miss. 472, 114 So. 334; Brunson v. Volunteer Carriage Co., 93 Miss. 793, 47 So. 377.
The burden is upon the plaintiff to prove the identity of the property claimed.
Anderson, Clayton Co. v. Daniels, 187 Miss. 225, 192 So. 432; Dennis v. Robinson, 104 Miss. 548, 61 So. 597; 54 C.J. 538.
The plaintiff having alleged the nature and source of his title, he is confined in his proof to his allegations.
54 C.J. 529.
A variance between the pleadings and the proof in a replevin, as in other civil actions, if material, is fatal.
54 C.J. 534.
The judgment should have been in the alternative, (1) to restore the property, or (2) to pay the value thereof.
Code of 1942, Sec. 2860.
Morgan Thornton, of Kosciusko, for appellee.
The only point now presented to the Court or what was presented to the trial court is whether or not the property which is the subject of this suit belonged to Blanton, and whether or not Crawford had any authority whatever to sell Blanton's property. It is fundamental law in the State of Mississippi that one person has no right to sell the personal property of another unless he is appointed as his agent for the purpose or unless he is held out by the owner of the property with authority to sell it. Certainly there is nothing in this record to indicate that Blanton had held Crawford out as his agent with authority to sell his property and there is no authority shown for that purpose. It was incumbent upon Mr. Rawson upon discovering that both parties had machinery and equipment under the same shed to be sure that he was getting only the property which he was purchasing from Crawford. It was his responsibility to determine whose property he was getting, and he acquired no title from Crawford to Blanton's property. Certainly the court was warranted in determining from the record as a fact that the property belonged to Blanton. It was likewise correct in holding that Crawford had no authority to sell Blanton's property since there was no conflict in the evidence on this point. Regardless of any of the other circumstances or facts testified to in the record, Rawson would have no right whatever to keep the property of Blanton. I take it that the law is so well settled that it would not require the citing of any authority that Rawson did not in any way by reason of any fact or circumstances acquire any title whatever to the propety involved in this lawsuit.
The judgment of the court should perhaps more clearly state that it is in the alternative, that is, that the defendant restore the property to the plaintiff or pay him the value thereof.
Appellee, as plaintiff below, sued out a writ of replevin against appellant, as defendant, to recover possession of certain farming appliances. At the end of all the evidence, the jury was directed to return a verdict for appellee. A motion for a new trial having been overruled, the case was appealed here.
It is not necessary to discuss the evidence, other than to say that there was no conflict in the testimony regarding the ownership of the property. It was clearly established as belonging to appellee, and mistakenly possessed by appellant, who had bought other farming appliances from appellee's tenant, in whose barn both sets of implements were stored at the time. There were contradictions as to incidental or collateral events, but, as the trial judge correctly ruled, none as to the appellee's right to the items claimed by him.
The motion for a new trial, based on an alleged variance, and newly discovered testimony, was correctly overruled. The matter of variance is governed by Section 1512, Code 1942. Such objection must be distinctly raised before verdict. Greer v. Bush, 57 Miss. 575. And by objection to the testimony. Westbrook v. Corneil, 199 Miss. 118, 23 So.2d 753. It is too late to do so on a motion for a new trial. The evidence was not newly discovered, but if it had been, no attempt was made to comply with the rule governing procedure in such circumstances. Beard v. Turritin, 173 Miss. 206, 161 So. 688; Graham v. Swinney, 174 Miss. 579, 165 So. 438. So, as stated, in our opinion, appellant was not entitled to a new trial.
Upon the service of the writ upon him, appellant filed a forthcoming bond, thereby retaining the property until final adjudication. Therefore, he also assigns as error that the judgment required him both to restore the property and to pay the value thereof, whereas it should have required him to restore or pay the value. In this he is correct. The judgment contains the further error of naming the plaintiff as W.T. Rawson, his correct name being W.T. Blanton. This was merely a clerical error, and may be corrected here without reversal. Smith v. Nolen, 2 How. 735, 3 Miss. 735; Buckingham v. Nelson, 42 Miss. 417; Hartford Fire Ins. Co., v. Williams, 165 Miss. 233, 145 So. 94. The error as to restoration and payment, instead of restoration or payment, is a judicial error and requires reversal, but not remand of the cause. We enter here the correct judgment which the court below should have rendered. Barrow v. Wade, 7 Smedes M. 49, 15 Miss. 49; Watkins v. Blass, 164 Miss. 325, 145 So. 348.
Therefore, all assignments of error are overruled, except the one last above discussed. We correct the judgment to show the correct name of the plaintiff as W.T. Blanton instead of W.T. Rawson. As to the error in requiring appellant both to restore the property and to pay its value, we reverse the judgment, but do not remand the cause, directing that judgment be entered here, requiring appellant to restore the property or pay its value as set forth in the judgment below.
No doubt the mistakes in this judgment were not called to the attention of the trial judge, otherwise, they would have been corrected before entry in the minutes of the court.
Reversed and correct judgment rendered here for appellee.