Coleman v. Bowman

Smith, C. J.,

delivered the opinion of the court.

This is a proceeding by which the appellee socks to enforce an employee’s lien under section 3042, Code of 1906 (section 2400, Hemingway’s Code). The petition Mrs. Coleman, as a plantation manager, and assisted in alleges that the appellee was employed by the appellant, the making of a crop of cotton and corn on which a lien was claimed for an alleged balance due the appellee of eight hundred dollars. The writ issued thereon was levied on eight hundred bushels of corn valued by the officer making the levy at eight hundred dollars, and released by him to Mrs. Coleman on a replevin bond given by her in double the value thereof. The appellant, Mrs. Coleman, filed a plea in abatement, the ground of which it will not be necessary here to set forth. When the cause came on for trial an oral request was made by the attorneys for Mrs. Coleman to continue the case because of the appellant’s absence on account of sickness, in support of which a physician’s certificate to the effect that she was ill and unable to attend court was offered, but which seems to have been excluded on objection being made thereto. Mrs. Coleman’s counsel then, according to their brief, though the fact is not clear from the record, requested the court to pass the case for a few hours so that they might obtain and offer the sworn evidence of the physician who made the certificate. This request was refused, the motion overruled, and the cause proceeded to trial on the plea in abatement resulting in a verdict for the appellee; whereupon a judgment final was rendered against the principal defendant and the sureties on her replevin bond for the amount sued for, from which the principal defendant has appealed, and in which the sureties on the replevin bond afterwards joined.

No replication was filed to the plea in abatement, but indorsed thereon are the words, “Issue joined in short by consent,” followed by the signature of the appellee’s attorneys. This joinder of issue is claimed by counsel for the appellants to have been without their knowledge and consent.

When the court below convened on Friday, the day on which the case at bar was tried, there was pending a litigated jury case which to all appearances would consume a large part, if not all, of the day, but which came to an unexpected and quick conclusion shortly after the convening of the court. A number of other cases that intervened between that case and the one at bar were either quickly disposed of or continued, so that early in the day the case at bar was reached, because of which the appellants’ counsel claim to have been surprised and unprepared for the trial.

The questions presented for decision arise on: (1) The overruling of the appellants’ motion for a continuance of the case; (2) the trial of the case without a replication to the plea in abatement; (3) the rendition of a judgment on the replevin bond without the ascertainment by a jury of the value of the property levied on; .(4) the rendition of an absolute, instead of an alternative, judgment against the sureties on the replevin bond.

That the cause was reached in the court below earlier than counsel for appellants expected, presents no reason-for any indulgence to them by the court below, and the absence of a party to an action is no cause for a continuance thereof unless his presence is shown to be necessary for the proper presentation of the case.

Why the appellant’s presence was necessary was not made to appear in the court below either when the continuance was asked or on the motion for a new trial, and no competent evidence of her illness was offered on the motion for a continuance, and none at all on the motion for a new trial. The court below therefore cannot be said to have abused its discretion in overruling the motion for a continuance.

Assuming that the joinder of issue in short to the plea in abatement was without the consent of and unknown to the appellants’ counsel, the absence of a replication to the plea was waived by no objection being made thereto at the trial.

While the judgment on the verdict for the plaintiff on an issue made by plea in abatement is that the plaintiff recover, the amount to be recovered, when unliquidated, must be ascertained by a jury. McNeely v. R. R. Co., 119 Miss. 897, 81 So. 641. The liability of the sureties on the replevin bond is for the return of the property replevied, or, in default thereof, to pay its value (section 3048, Code of 1906; section 2406, Hemingway’s Code), which value must be ascertained by a jury (section 4233, Code of 1906; section 3062, Hemingway’s Code); the valuation of the officer who made the levy being simply prima-facie evidence thereof.

The judgment should have been against the principal defendant for the amount of the debt sued for (section 3049, Code of 1906; section 2407, Hemingway’s Code), and against the sureties on her replevin bond for the return of the property to the proper officer, to be dealt with according to law, or, in default thereof, to pay the plaintiff the value thereof if in excess of the amount sued for. This necessarily follows from the provision of section 3048, Code of 1906 (section 2406, Hemingway’s Code), that the replevin bond and the proceedings.thereon in employee’s lien cases shall be in accord with the bond and proceedings thereon in actions of replevin.

The judgment of the court below will be affirmed in so far as it awards a personal judgment against the appellant, but will be reversed in so far as it awards a judgment on the replevin bond, and will be remanded for further proceedings in accordance with this opinion.

Reversed in part; affirmed in part.