Summary
In North v. Delta Chevrolet Co., Inc., 188 Miss. 252, 194 So. 478, neither the conditional sales contract nor a copy was attached to the declaration, but the case held that it was not necessary to make profert of the contract in order to assure admission.
Summary of this case from Powell v. SowellOpinion
No. 34047.
March 11, 1940. Suggestion of Error Overruled April 8, 1940.
1. REPLEVIN.
In action for replevin of an automobile where there was no conflict whatever in the material evidence, the case was one for a directed verdict.
2. PLEADING.
In action of replevin to recover possession of automobile by conditional seller against buyer who was in default, the court did not commit error in overruling buyer's objection to seller's introduction of conditional sales contract on ground that it had not been attached to declaration as an exhibit thereto (Code 1930, sec. 3098).
3. REPLEVIN.
The plaintiff in replevin is not required to set forth in the declaration his muniment of title, and an allegation of ownership and right of possession is all that is necessary.
4. APPEAL AND ERROR.
In action of replevin to recover possession of automobile by conditional seller against buyer who was in default, directed verdict and judgment for seller was not erroneous because instruction directing verdict was not marked filed by clerk, where it was copied in record, and, in addition, the record showed that seller moved court to grant such an instruction, which motion was sustained.
5. SALES.
In action of replevin to recover possession of automobile by conditional seller against buyer who was in default, where seller was entitled to directed verdict both on issue of liability and amount of recovery, no discretion was left to jury, and court was authorized to discharge jury and enter proper judgment without verdict.
APPEAL from the circuit court of Humphreys county; HON. S.F. DAVIS, Judge.
H.F. Jones, of Belzoni, for appellant.
In replevin on conditional sale contract, it is proper to show the amount due, and the judgment should show the amount due.
Bates v. Snider, 59 Miss. 497; Gabbert v. Wallace, 66 Miss. 618, 5 So. 394.
In an action of replevin attorney's fees are not allowed.
Cowden v. Lockridge, 60 Miss. 385; Caraway v. Wallance, 17 So. 930; Thornton v. Gardner, 134 Miss. 485, 99 So. 131.
The value of the property, with interest is to be fixed by the jury, and is the extent of the verdict to be rendered by the jury, and in the present case there is no verdict of the jury, shown by the record, except only a quoted verdict in the judgment.
Under the statutes of the state nowhere is it provided that damages in a replevin action makes other provision than for the value of the property and the interest.
Mars v. Hendon, 178 Miss. 157, 171 So. 880.
Upon granting the motion of the plaintiff, the court did attempt to give to the plaintiff a peremptory instruction, but in this record there is only a statement of instruction, not shown to have been filed in the case by the circuit clerk. It is specifically required by statute that all such instructions of the court shall be so filed. Sec. 586, Code 1930. Hansford v. State, 11 So. 106; Delta Bank v. Goff, 12 So. 699.
W.H. Montjoy, of Greenwood, for appellee.
It is not necessary to file a copy of the conditional sales contract with the declaration, and no error was committed in adding the attorney's fees in the assessment of the limited interest of appellee in the property.
Quarles v. Hucherson, 104 So. 148; Young v. Terry, 92 So. 76, 129 Miss. 281; Odom v. Harris, 34 Miss. 14; Sec. 3098, Miss. Code of 1930; Bates v. Snider, 59 Miss. 497.
No error was committed by failure to have the peremptory instruction marked "filed" by the clerk.
Appellee, the Chevrolet Company, brought this action of replevin in the Circuit Court of Humphreys County against North, the appellant, to recover possession of a Chevrolet Automobile, 1938, model, with certain motor and serial numbers described in the declaration. After the evidence was all in, the court, on the request of the Chevrolet Company, directed a verdict and judgment for it. From that judgment, North prosecutes this appeal. There was no conflict whatever in the material evidence. The case was therefore one for a directed verdict one way or the other. Only questions of law are involved.
The following are the facts: On October 1, 1938, North purchased from the Chevrolet Company the car involved under a conditional sales contract. The price was $980.50, of which $298.30 was paid cash on delivery, leaving a balance unpaid of $682.20 which the contract provided should be paid in monthly installments of $37.90 each. Under the terms of the contract, the Chevrolet Company retained title to the car until the deferred payments were made in full. North made default in the payments. He was in arrears for three monthly installments of $37.90 each, being the June, July and August, 1939, payments. The Chevrolet Company employed an attorney to bring replevin for the automobile for the purpose of recovering the unpaid purchase-money balance. The contract provided that in the event of default in payments and it should be necessary to employ an attorney to enforce the contract, an attorney's fee of fifteen per cent should be added to the balance due. The declaration alleged, and the evidence showed, the value of the automobile to be $550, unpaid balance on the purchase price to be $416.90, and the attorney's fee of fifteen per cent on that amount to be $62.53, making a total of $479.43. North had the automobile on bond. The judgment was that he pay that amount, with the interest provided in the contract, or surrender the automobile to the Chevrolet Company.
North contends that it was error to grant a directed verdict and judgment for two reasons: (1) That the court erred in overruling his objection to the introduction by the Chevrolet Company of the conditional sales contract upon the ground that it had not been attached to the declaration as an exhibit thereto. (2) That the verdict and judgment is erroneous because the instruction directing a verdict for the Chevrolet Company was not marked filed by the clerk.
(1) Section 3098 of the Code of 1930 (part of the chapter on replevin) provides, among other things, that if the plaintiff in replevin recover, and the defendant has given bond for the property, the judgment shall be against the defendant and the sureties on his bond that they restore the property to the plaintiff, if to be had, or pay him the value thereof or of his interest therein if a limited one.
The plaintiff in replevin is not required to set forth in the declaration his muniment of title. An allegation of ownership and right of possession is all that is necessary. Quarles v. Hucherson, 139 Miss. 356, 104 So. 148; Young v. Terry, 129 Miss. 281, 92 So. 76; Odom v. Harris, 34 Miss. 410.
(2) Although the peremptory instruction was not marked filed by the clerk, it is copied in the record, and, in addition, the record shows that the Chevrolet Company moved the court to grant such an instruction, which motion was sustained. There was no issue of fact for the jury to pass on. The Chevrolet Company was entitled to a directed verdict, both on the issue of liability and the amount of recovery. No discretion, therefore, was left to the jury. In such a case, the court is authorized to discharge the jury and enter the proper judgment without a verdict.
Affirmed.