Mellini v. Duly , 88 Miss. 219 ( 1906 )

Calhoon, J\,

delivered the opinion of the court.

Duly made his affidavit in replevin for a schooner, with her anchor, sails, blocks, rigging, etc., valuing all at $150. The justice of the peace duly issued a writ of replevin and the constable levied on all, putting a value on the whole of $200. Mellini replevied all, giving bond in the sum of $400, and retained them in his possession. The justice, by consent of the parties, gave judgment for Duly that Mellini restore the schooner or pay Duly $150, and Mellini appealed to the circuit court on an appeal bond for $300, the appeal bond reciting that the judgment of the justice of the peace was “for the possession of a certain schooner, Alice P. of Biloxi, valued at $150.” So it is plain that there was no appeal, except as to the boat itself, and that at a valuation of $150, Mellini remaining in possession of all the articles replevied.

The circuit court tried the case and there was a verdict for Duly for the boat alone, valued by the jury at $150. We fail to understand the contention that values showed more than $200 and therefore were in excess of jurisdiction. It is a mistake of fact. The affidavit puts the value of everything replevied at $150; the consent judgment in the justice’s court was for the boat, valued at $150; there was appeal from that only; on the circuit court trial Mr. Mellini’s counsel objected to testimony of the value of “anything seized except the boat,” and the objection was sustained; and the verdict was for the boat only, valued by the jury at $150. So it is immaterial whether instruction No. 2 for plaintiff was strictly right or not.

Whether Mellini could or could not write, it was entirely competent to ask him as a witness whether he signed or executed a written contract, and whether it was nót done in duplicate, and on his denying both it violated no privileged confidence to ask him whether he had not compared with his counsel in the pending trial the contract offered by plaintiff with a copy given to his counsel by him. The verdict is abundantly sustained by the evidence.

Affirmed.