ON SUGGESTION OF ERROR.
We must decide cases here upon the record as certified to us by the clerk, not upon what the record might have been had the case been better tried. We have re-examined the record and upon it declare that no sound opinion could be written which would reverse the judgment.
ON MOTION FOR A NEW TRIAL.
Appellant has made in this court, and since the affirmance of the judgment, a motion for a new trial on the ground of misconduct of his trial attorney, which misconduct, as appellant avers by affidavits now before us, was such as to render his said attorney incapable of properly presenting his case before the trial court. The Supreme Court is a court of appeals, without any such original jurisdiction as appellant has sought to invoke by his said motion. A motion for such matters as this must be first made in the trial court and the formal rulings of the trial judge had thereon, else they are not cognizable by us.
ON MOTION FOR A MODIFIED JUDGMENT.
Appellant has filed a motion requesting in the alternative that the judgment of the trial court be modified
so as to order a sale of the replevied property as if in foreclosure or in execution. Appellee has filed its response to said motion consenting that the judgment be modified as requested by appellant.
The judgment as rendered by the trial court is in accord with section 3098, Code 1930, and there is no error in it. Inasmuch as the appellate power is expercisable only for the correction of error, it must follow that when there is no error there is no appellate power other than to declare that there is no error. And the parties cannot, by confession or consent, put error into a judgment when there is in fact no error therein. It follows, further, therefore, that if we were to act upon the stated request, we would have to do so as if a court of original jurisdiction; and since we have no such jurisdiction and none can be conferred by consent, our order of modification would have no more force than if made by private persons. 34 C.J., pp. 130, 131. Compare Loving v. Laird, 122 Tex. 18, 50 S.W.2d 260.
Nor is it necessary to the ends of legal justice that such modified judgment be entered here, or in the trial court, even if the trial court could have entered such an order. The action of replevin is possessory only. Scarborough v. Lucas, 119 Miss. 128, 80 So. 521; Jackson v. General, etc., Corp., 151 Miss. 890,119 So. 808. When, and if, the replevied property is delivered to the plaintiff in replevin under the judgment, the plaintiff will have no absolute title to it, but only a lien thereon for the balance due of the purchase money, with the right to sell to make the same. The reservation of the title was but as security for the purchase price, and while sufficient to maintain replevin upon default of payment, yet when possession is recovered by the seller or his assignee, he must still deal with it as security and with reference to the equitable rights of the purchaser. Ross-Meehan Brake Shoe Foundry Co. v. Pascagoula Ice Co.,72 Miss. 608, 615, 18 So. 364. The contract between the parties
expressly so provides, leaving aside what the law would require in the absence of such an express contract.
Suggestion of error and motions overruled.