Ross v. Hawthorne , 55 Miss. 551 ( 1878 )

Simrall, C. J.,

delivered the opinion of the court.

The question chiefly argued by counsel is whether the judgment-debtor who sets up title to the personal property, as ■exempt from execution, can bring the ordinary action of replevin against the sheriff.

The case of Mosely v. Anderson, 40 Miss. 50, is an authority directly against the position of the plaintiff in error, unless there has been some change in.the statute-law since the revision of 1857. The objection made in that case was that the Code (sec. 529) gave an action against the sheriff for a levy or seizure of exempt personal property, and that was the only remedy. But another provision of the Code (p. 395) gave the action of replevin for the recovery of the •“property in all cases where any goods or chattels are, or shall be, wrongfully taken or detained.” The court ruled that the party aggrieved had his election to sue the sheriff for damages, or bring replevin against him for the property.

Article 295 of the Code of 1857, which gave the remedy by framing an issue between the judgment-creditor and the Claimant to try the right of property, in terms applied “ to any person, not a party to the execution,” who preferred the right to the property.

It might have been argued with much force, in support of the replevin action, that this special statutory proceeding embraced only third persons, and-not a defendant to the judgment and execution. And if the remedy by replevin was denied a defendant, he must submit to a sale, and obtain, redress by suit against the sheriff.

The Code of 1871, section 2134, provides a special remedy for the debtor who desires to retain property seized under execution, and submit his right to it as exempt to the test of a trial. He may give a replevin bond payable to the plaintiff, the creditor, conditioned to have the property forthcoming, to abide an issue to be made up at the return-term of the execution. The plaintiff’s counsel insists that this defendant ought to have pursued this statutory method, and that it is the exclusive method of litigating his right to the property.

It may be accepted as settled in this state, by the cases of Yarborough v. Harper, 25 Miss. 112, Tod v. Dyer, 26 Miss. 243, and Hopkins v. Drake, 44 Miss. 619, that property may be taken from the sheriff, held under a levy by him, by the ordinary writ of replevin.

The sheriff makes himself a trespasser by taking in execution the exempt property.

The right of possession, as against a seizure under legal process, is complete. Both the property and the right of possession, as against judgment-creditors, is absolute.

It would follow, then, as held in Mosely v. Anderson, ubi supra, that the debtor whose property is “exempt” fulfills-all the conditions of the statute requisite to bring the-ordinary action of replevin; that any other method allowed by statute to test his right is cumulative, and, as respects-remedy, he stands on the footing of a third person.

The form of issue and trial prescribed in section 2134 of the Code is not exclusive, but the debtor may elect between that remedy and an action for damages, and the ordinary action of replevin against him to regain the property.

It was further objected that the justice of the peace who-issued and tried the replevin had no jurisdiction ; but if such-proceeding could be instituted at all, it could only be brought-in the court of the justice who rendered the judgment and issued the execution. It is said that it belonged exclusively to the justice who took cognizance of the suit to recover the-debt, to hear and determine all incidental contestations growing out of that suit.

But the action of replevin is an original suit between the-debtor and the sheriff, and whether it should be brought in the Circuit Court or in the Justice’s Court is determined by the value of the property. The issue and -trial of the right of property must, by the terms of the statute, take place in the court from which the execution emanated. There is no-error.

Judgment affirmed.