Horn v. John Deere Plow Co.

Rodgers, J.

This cause is revived in the name of Mrs. Ruth B. Horn, administratrix of the estate of Ed Horn, deceased. It is a replevin suit. The affidavit was made and filed with the circuit clerk and is in the following words and figures:

“THE STATE OF MISSISSIPPI

“TALLAHATCHIE COUNTY

Before me, Charlie Cox, Clerk of the Circuit Court of said County, John Deere Plow Company makes affidavit that one John Deere #1 Cotton Picker with Hook for Model 60 Tractor, bearing Serial #1-2063, of the value of $4,500.00, the property of affiant, is wrongfully detained hy Ed Horn in Tallahatchie County in the State aforesaid, and that this affiant is legally entitled to the immediate possession thereof. Wherefore he prays a Writ of Replevin for the seizure of said property.

JOHN DEERE PLOW COMPANY

BY D. G. Evans

ATTORNEY

“Sworn to and subscribed before me, the 4th day of November, A.D., 1958.

Charlie Cox

Circuit Clerk of Tallahatchie County

It will he observed that the replevin affidavit in this case attempts to make the John Deere Plow Company the affiant and therein alleged that “this affiant is legally entitled to the immediate possession thereof.” This affidavit is not similar to the affidavit filed in the cases cited by the appellant. The affidavits mentioned in these cases claim the right of possession in the affiant, in his own right. The affidavit in the case at bar here under consideration, and in the declaration later filed, the right of “immediate possession of property” is said to he in John Deere Plow Company. Although it is inartfully drawn, it is nevertheless amendable. See McCarty v. Key, 87 Miss. 248, 39 So. 780.

When the affidavit is amendable, that is to say, the error is one of form rather than substance, the error is cured hy the statute of jeofails, Section 1544, Mississippi Code of 1942. A party who wishes to avail himself of objections to an affidavit in replevin as to form must do so in seasonable time, and not for the first time after trial and verdict, or on appeal. The appellant was properly served with process and elected to permit a judgment by default to be taken against him. The error being one of form is cared by Section 1544, Mississippi Code of 1942.

Affirmed.

McGehee, G.J., and Lee, Kyle and Gillespie, JJ., concur.