Moore v. Lee , 51 Miss. 375 ( 1875 )

Tarbell, J.,

delivered the opinion of the court.

G\ W. Shannon, being tenant to S. E. Clopton, the latter caused the goods of the former to be seized by a distress warrant for rent in arrear. Thereupon the plaintiff in error caused the goods so distrained to be replevied, he making an affidavit and bond under the Code, § 1681. The writ was made returnable to the January term of the Monroe county circuit court, 1874. During the term of that court, and on March 7th, the plaintiff in replevin, by leave of the court, filed a declaration in replevin. Before that time, however, and on the 26th da}r of February, a judgment in said cause had been rendered; a judgment of nonsuit for want of prosecution, and that defendant recover of plaintiff and his sureties ; but the court not being advised as to the value of the property replevied, and damages sustained by the defendant, a jury was impaneled to assess the value of the property and damages sustained. The jury assessed the value of the property at $220, and the damages at $50. Thereupon it was “ considered by the court that the plaintiff and his sureties restore said property to the defendant, or pay him the value thereof so assessed, and also the damages so assessed, for wrongfully suing out the writ in this cause,” etc., for which execution may issue.

A motion was made after filing the declaration, on March 7th, to set aside the said judgment for reasons assigned in affidavits. This motion was overruled. Hence a writ of error.

The following are assigned as errors :

1. In dismissing plaintiff’s suit without having first made an order requiring an issue to be made up.

2. In rendering judgment as in case of detinue, wherefore the judgment rendered is erroneous.

3. In giving any judgment for defendant without lA having first pleaded an avowry, or without his having alleged that any rent was due. *

4. In refusing to set aside the judgment and reinstate the cause on the docket.

Waiving a consideration of the decision overruling the motion to set aside the judgment, as a matter in a great measure within the discretion of the circuit court, error is observed in this, that the judgment pursues the general statute regulating the action of replevin, Code, ch. 16, which is unlike the provisions in special cases, id., ch. 21, arts. II, III, within which the case at bar falls. The two statutes are. unlike in several particulars: first, in the character of the affidavits, the difference in which will be seen by contrasting the Code, § 1529, with id., § 1631; and secondly, in the judgment to be rendered in the two cases, indicated in the one case, Code, § 1534, and in the other, id., §§ 1630, 1631, 1632, and Laws of Miss., 1872, p. 34, ch. 28. By the latter act, the party was only entitled to judgment for the amount of rent due.

Justice in this case will be best subserved by wholly reversing the judgment, remanding the cause, restoring it to the docket for an issue to be made up according to the Code, § 1632, and for a trial on the merits. Laws of 1872, ch. 28; Lavigne v. Russ, 86 Miss., 326.

Ordered accordingly.