Sherron v. Hall ( 1880 )

Cooper, J.,

delivered the opinion of the Court.

Sherron, as Constable, having in his hands an execution against G. A. Hall, levied on a. buggy and harness as his property. Nannie Hall, the wife of G. A. Hall, sued out a writ of replevin before a Justice of the Peace, who gave judgment in her favor, and Sherron appealed.

In the Circuit Court, upon motion, the writ was amended by making G. A. Hall a nominal plaintiff with his wife, upon the husband giving a new and sufficient replevin bond. Sherron excepted. The case was then tried by a jury, and resulted in a verdict and judgment for Hall and wife.

Sherron appealed in error.

It is assigned as error that the proceedings before the Justice of the Peace were void, because the married woman could not execute a valid re-plevin bond, and that, consequently, no amendment could he made.

If it be conceded that a married woman cannot give a valid bond, the writ might be amended by allowing her husband or a next friend to be joined as a co-plaintiff upon giving a proper bond. This was what was done in the Circuit Court, in which court, by the appeal, the cause stood for proceedings de novo.

A new bond may be given in proper cases: Code, sec. 3392; Creamer v. Ford, 1 Heis., 307. The general rule that a defendant in an execution cannot maintain an action of replevin for the goods seized thereunder, only applies when the officer is proceeding rightfully: Dearmon v. Blackburn, 1 Sneed, 390. If the officer levy on exempt property, the defendant may sue out the writ: Wilson v. McQueen, 1 Head, 17; Harris v. Austell, 2 Bax., 151. If the property belong not to the debtor in the execution, but to' his wife, there in no reason why he may not join with her as a nominal plaintiff in the writ.

The proof is clear that the property in controversy was bought from the husband by a third person, and at the same time given by the purchaser to the wife, the husband and wife then be-> ing resident citizens , of the State of Mississippi. The gift was not accompanied with words showing the intention of the donor to give to the separate use of the wife, doubtless because the statute law of Mississippi made the property separate estate by virtue of the gift' itself. It is said,. however, that there was no evidence offered on the trial of' the law of Mississippi, and the bill of exceptions is .silent on the subject.

The Code does seem ,to contemplate the introduction, in the trial court of proof of the law of a sister State, while it allows this Court to take judicial notice of the same law: Code, secs. 3800,' 3801 ; Hobbs v. M. & C. R. R. Co., 9 Heis., 873. It would seem useless to reverse for the want of proof of a law of the existence of which this Court must take judicial cognizance: Foster v. Taylor, 2 Tenn., 191. But the gift was in effect as if the husband, for a valuable consideration, had made the conveyance to the wife, in which case the transaction, from its very nature, would confer a separate estate without express words; Powell v. Powell, 9 Hum., 477.

Affirm the judgment.