Lewis v. McCracken ( 1906 )

Calhoon, J.,

delivered the opinion of the court.

Lewis brought replevin for two bales of cotton. The defendants to that action made default, and thereupon McCracken voluntarily applied to be made defendant, as claimant of three-fourths of the two bales; and in the justice’s court, on trial of the claim, Lewis won, and McCracken appealed to the circuit court, where Lewis demurred to his petition to become defendant, because it showed On its face that he was, “at most, but a part owner, joint owner, or tenant in common,” with Lewis. This demurrer was sustained and judgment rendered for Lewis, and McCracken appeals to this court.

Because McCracken’s petition to be made defendant says it is filed under sec. 714, Code 1892, cannot change the legal status. That statute was made to protect the original defendants, if they desired to disclaim and become mere stakeholders for third parties who, they were informed, had an interest. Without this Lewis had the right to the cotton and costs in a law court against the world in that action. It was not the design to permit a stranger to become, in fact, a plaintiff in replevin against the successful plaintiff in that very action of replevin. If the law court had taken the jurisdiction, sec. 147 of the constitution might apply; but by the action on the demurrer the jurisdiction was refused, and plainly the jurisdiction was in equity, and not at law, the claim being for possession of an individual joint interest in personal property. Ettringham v. Handy, 60 Miss., 341, 342; Hoff v. Rogers, 67 Miss., 208 (7 South. Rep., 358; 19 Am. St. Rep., 301) ; Willis v. Loeb, 59 Miss., 169—174—all cited by counsel. It is conceded that sec. 3730, Code 1892, does not apply.

Affirmed.