Opinion
No. 33101.
March 21, 1938.
1. PRINCIPAL AND AGENT.
In replevin suit to recover farm machinery sold to defendant under conditional sales contract in form of promissory note payable to seller, evidence that shortly after its execution seller assigned note to plaintiff for value, that seller bought machinery directly from plaintiff, that plaintiff looked to seller for payment if cash was not paid at time of purchase, but that plaintiff would take notes having a proper credit basis, was insufficient for jury to find that seller was plaintiff's agent to make sales for its benefit.
2. REPLEVIN.
In replevin suit to recover farm machinery where sheriff's return with list and affidavit of value of machinery and of each item separately valued was in evidence, trial court which entered judgment for machinery described in gross without valuing articles separately properly corrected judgment so as to give defendant right to redeliver machinery or pay value of each item at his option.
3. NEW TRIAL.
In replevin suit, trial court did not err in overruling defendant's motion for new trial on ground that he had certain documents and letters which if produced would have warranted judgment in his behalf, where all papers sought to be introduced were in defendant's possession at time of original trial, and no showing was made of inability to produce them, and defendant sought no delay so that they might be found and introduced.
4. NEW TRIAL.
A party must have his case ready for trial when trial is begun or must produce satisfactory evidence of reasons why trial should not then be had, and failing to do so, party cannot later complain of result of failure to conform to his duty.
ON SUGGESTION OF ERROR. (Division B. May 2, 1938.) [180 So. 747. No. 33101.]1. APPEAL AND ERROR.
The Supreme Court must decide cases upon record as certified by clerk.
ON MOTION FOR A NEW TRIAL.2. NEW TRIAL.
A motion for new trial on ground of misconduct of defendant's trial attorney must be first made in trial court and formal rulings of trial judge had thereon, and cannot be made for first time in Supreme Court.
ON MOTION FOR A MODIFIED JUDGMENT.3. APPEAL AND ERROR.
Inasmuch as appellate power is exercisable only for correction of error, when there is no error, there is no appellate power other than to declare that there is no error, and parties cannot, by confession or consent, put error into judgment when there is in fact no error therein.
4. APPEAL AND ERROR.
A judgment in replevin could not be modified so as to order a sale of replevied property, notwithstanding appellee consented to appellant's motion for such modification of judgment, where judgment as rendered by trial court was in accord with statute and there was no error therein (Code 1930, section 3098).
5. REPLEVIN.
The action of replevin is possessory only.
APPEAL from the circuit court of Jefferson Davis county. HON. HARVEY McGEHEE, Judge.
G.L. Martin, of Prentiss, for appellant.
We respectfully submit that the plaintiff's cause must be dismissed or remanded for an order to dismiss in the lower court, for the reason the affidavit in replevin does not allege the facts giving the lower court jurisdiction, as required by Section 3079, Code 1930. The affidavit does not allege that the property in question was in the possession of the defendant. It is true the affidavit alleges the property was "detained" by the defendant, but this does not comply with Section 3079.
The court will note that there is no proof offered in the record to show that the defendant or the property or some part of it was found in Jefferson Davis County, Mississippi. This fact must be proved, we respectfully submit, to confer territorial jurisdiction or venue on the court below.
Section 3081, Code of 1930; Turner v. Lily, 56 Miss. 576.
Section 3098, Code 1930, was not complied with.
The reservation of title is but as security for the purchase price, and if the property is recovered by the seller, he must deal with it as security and with reference to the equitable rights of the purchaser.
Foundry Co. v. Ice Co., 72 Miss. 608.
Since the property was security for the purchase price, the court's directed verdict should have told the jury, we submit, to find for the plaintiff and assess the interest of the plaintiff in the property in controversy and assess the value of each article of the property, giving right to defendant and sureties to either pay for the assessed value (assessed by the jury and not by the court) of each article of the property or to surrender said property or such articles of it as defendant wished and give defendant right to ask that the property be sold to satisfy the debt.
The directed verdict omitted submitting to the jury the finding of the value of the property.
Universal Credit Co. v. Moore, 163 So. 142; Whittaker v. Goodwin, 97 Miss. 663; Hill v. Petty, 111 Miss. 665; Bedon v. Alexander, 47 Miss. 254; Spratlin v. Kitchens, 55 Miss. 578; Clarke v. Parker, 63 Miss. 549.
There was no proper identification of property.
Plaintiff must prove the allegations made in his pleadings and must show by proper proof affirmatively, and not by innuendo, that the property, piece by piece, described in the contract note, is the same property, piece by piece, replevied.
Evans v. Piano House, 140 Miss. 467, 106 So. 9; Dennis v. Robinson, 104 Miss. 548, 61 So. 597; Joshua Brunson v. Volunteer Carriage Co., 93 Miss. 793, 47 So. 377.
Declaration does not allege that plaintiff is a holder in due course.
Section 2708, Code of 1930; Mayer v. McLure, 36 Miss. 389; Wilcox v. Ruth, 9 S. M. 476.
Appellee nowhere sets up or proves it is a bona fide purchaser for value without notice and is bound by the transaction.
Harris v. Holliday, 4 H. 338; Burns v. Zezer, 27 Miss. 188; Kountz v. Price, 40 Miss. 341; Meyer v. Morgan, 51 Miss. 21.
We most respectfully submit that this was a cause for the jury. There was a conflict in the evidence.
23 So. 766; 25 So. 671; 26 So. 945; 148 Miss. 157, 114 So. 260; 165 Miss. 207, 147 So. 481; Justice v. State, 154 So. 265; Fore v. I.C.R.R. Co., 160 So. 903.
The degree of proof necessary to entitle a party to a peremptory instruction is very much greater than that necessary to entitle him to the verdict of a jury.
Ala. Great So. R. Co. v. Daniel, 108 Miss. 358, 66 So. 730; Bank v. Pitts, 108 Miss. 380, 68 So. 811; 118 Miss. 90, 79 So. 62.
The writer of this brief only came into this case on motion for new trial and, of course, knew nothing of the evidence prior thereto. Mr. Roberts' affidavit and his testimony show that this original attorney knew nothing of these papers. The court excluded all this evidence on motion for new trial on newly discovered evidence on the ground that it was not shown that it could not have been presented on the original hearing. From a purely technical standpoint, it may be the court was correct, but it overlooks this significant fact, in our view, that all this evidence on the point of newly discovered testimony went to Mr. Roberts' original defenses and the court had on the original trial cut them off anyway; so we say that if the court took the view that they could not be admitted on the ground that they existed at the time of the original trial a few days before, then this cannot be well taken for the reason the court excluded all efforts to show any original defenses and Roberts had the right, even upon this exclusion as evidence in the case, to put his original defenses in the record for review in the appellate court. So in this state of the case, after the court below had ruled that all original defenses could not be offered, it makes no difference whether they existed at the time of the trial or not — they went out anyway and Roberts had the right and this right was preserved to him on his motion for new trial to perfect the record to show what these original defenses in detail were.
C.E. Thompson, of Prentiss, for appellee.
The writ of replevin and officer's returns thereon was introduced in the evidence by appellee. This was all of the evidence in the record as to the value of the property and the value here shown was less than the interest of the appellee in the property. There being no further evidence as to the value of the property there was no question to submit to the jury as to the value of the property and certainly the appellant cannot complain that the value as fixed by the sheriff in his returns and for which judgment was taken was for an amount less than the interest of the appellee in the property. The trial court therefore entered judgment in the alternative that the appellee, the plaintiff in the court below, have and recover of the appellant, the defendant in the court below and the sureties on his bond, the property involved in this suit or in lieu thereof the value of each item not recovered. We, therefore, most humbly submit that the judgment of the circuit court is in strict compliance with the statute and most assuredly the appellant is in no way wronged or injured by reason of the fact that the interest of the appellee in the property was not fixed by the jury or that the value of the property was not fixed by the jury.
The appellant in his contention that the directed verdict omitted submitting to the jury the finding of the value of the property is not well taken.
It will readily be seen by comparison with the sheriff's returns in the writ of replevin and the defendant's replevin bond and the final judgment of the circuit court that the values of each item of the property are identical. These were all of the definite values given to each item of the property and the same values to the same articles appear in the sheriff's returns in the writ of replevin, in the defendant's bond of replevin and in the judgment appealed from.
We are firmly of the opinion that the learned circuit judge was right in holding that there was no conflict in the evidence and granting a peremptory instruction.
G.L. Martin, of Prentiss, for appellant on Motions.
We exceedingly regret the necessity of bringing this very delicate matter to the attention of the court. This attorney who represented Mr. Roberts on his trial in the lower court was one of the writer's very best friends. We tried cases together and against each other and never was there a cross word between us. He was most respectful to the court and to his fellow attorneys, and when engaged in the trial of a case and at himself he was alert, aggressive and learned in the law. We feel — we, in fact, know — that had this attorney been at himself, every defense which Mr. Roberts had would have been set up for him and all these papers, denied admission in evidence on the motion for new trial, would have been introduced in evidence or he would have would have asked for time to get them.
We submit that it is our understanding that the term "due process of law" has now been extended to cover the matter of an attorney as to his ability, physical or otherwise, at the trial to properly present his defenses. We feel that under all the facts and circumstances, it would be fair and just to grant a new trial in this cause. We most respectfully pray the court to sustain the motion for new trial. And if it be improper to make this motion as a separate motion, then may it please the court to consider this matter in connection with the suggestion of error.
We respectfully submit to the court that the judgment in replevin, as reformed and corrected, provides that the property, valuing each article, shall be surrendered or its value paid; that the property is undervalued in the returns of the sheriff, which values are the same as made in the affidavit for replevin; that the attorney for the plaintiff, whose duty, we submit, it was to prove the market value of the property, did not offer any proof on this and simply stood on the officer's returns; that the attorney for the defendant did not make any proof on the value of the property. So it is, as we view it, this property is undervalued. Mr. Roberts submits an affidavit herewith showing that he is unable to pay the value of this property; that it is a kind of property that is of no value at all to Mr. Roberts in parcels; that it is almost useless unless it all goes together; that he is unable to buy it or pay even its assessed value; that it is worth $800 to $900 and that a public sale of the property would be just and fair to all parties. If the Harvester Company wants the property, then it certainly cannot be harmed by paying for its value; if it does not want the property, then some other might buy it.
G.L. Martin, of Prentiss, for appellant on Suggestion of Error.
The opinion of the court states that the original judgment herein was erroneous, but that it was not error to allow its correction on the hearing of the motion for new trial. We most earnestly pray the court to review its holding therein. The court will understand, please, that we predicated our motion for new trial, partly, on this erroneous judgment. The attorney for the plaintiff was advised of his erroneous judgment by our motion for new trial and his motion to correct his judgment was made in our time on the motion for new trial. Now, if the court holds that the judgment could be corrected, then we should have never put our objection to the judgment in our motion, but should have "let it rest" and should have "laid low, like Brer Rabbit" and secured a reversal in this court. But then would we have not been met by this: "Why you did not make a motion for a new trial. This court can't consider something that was not presented to the lower court and put it in error without its ruling." And so out we would have gone. We would like to have the ruling on this. We note in the Justice case, 154 So. 265, that this court now holds that a motion must be made for new trial before this court will consider certain objections. We think the lower court should have granted our motion for new trial on this ground to the extent that a writ of inquiry should have been directed to assess the value of this property. Certainly the Supreme Court would have been bound to reverse this original judgment, and now it is hardly fair, we submit, for us to proceed in an orderly way and set this matter up and then have the plaintiff take advantage of the situation and turn our objection into a favor to him. This was tantamount to granting affirmative relief on motion for new trial and the motion for new trial is made by the losing party, of course.
C.E. Thompson, of Prentiss, for appellee, on Motions.
This being a suit in replevin, in case the suggestion of error is overruled, as a matter of right, the appellee is entitled to an order, in this court, granting unto it either the surrender of the property involved or to recover of the appellant and the sureties on his appeal bond the value, fixed in the judgment of the lower court, of the items of property not surrendered; however, since the appellant has asked for public sale of the property, the appellee hereby agrees and consents that an order may be entered, to the following effect, in favor of the appellee and against the appellant and the sureties on his appeal bond for the value of the property as fixed in the judgment of the lower court, $560, and damages and costs, and provide that the property may be surrendered to the sheriff and by him sold as under execution and the proceeds of the sale applied to the payment of the cost and damages and then to the payment of the $560 and the remainder, if any, paid over to the appellant, and in case of a deficiency the same to be made by execution out of the appellant and the sureties on his appeal bond.
The International Harvester Company sued out a replevin in the circuit court of Jefferson Davis county for one McCormick-Deering tractor, model No. F12, chassis No. fS, 29668; one McCormick-Deering tractor disk harrow; one No. 219 cultivator two-row spring trip attachment; one F69 planter two-row with one 30A fertilizer attachment. The affidavit for replevin gave the value of each piece of property separate, and the total value as being $560; alleging that such property was willfully and wrongfully detained in said county and state by T.T. Roberts; and that the International Harvester Company was entitled to immediate possession thereof. A writ of replevin was issued, describing each piece of property separately, with its value, and giving the total value. The sheriff levied upon the property, valuing each piece separately, as alleged in the affidavit, with the total value, in his returns. The defendant, Roberts, gave bond for the forthcoming of the property, valuing each article separately and in the total, as in the sheriff's return, and the affidavit.
The machinery was sold to Roberts by the Davis Implement Company of Prentiss, Miss., the contract of sale reserving title until it was paid for, said contract bearing date of April 21, 1936. The contract, reserving title until the purchase money was paid, was an instrument in the form of a promissory note payable to the Davis Implement Company or order, at Prentiss, Miss., and provided that after maturity each installment should draw interest at 7 per cent.; and it was also agreed that if the note was not paid at maturity, Roberts would pay all expenses, including a 10 per cent. attorney's fee incurred in collecting the same by suit or otherwise. The note recites that it was given for the balance of the purchase price of the machines described above. The Davis Implement Company assigned this note, with reserved title, to the International Harvester Company for value shortly after its execution; the purchase price not being paid, this writ of replevin, after demand made, was sued out.
On the hearing witnesses for the International Harvester Company testified that such company was the purchaser for value in due course, without notice; and, also, that it sold machinery of its own manufacture to the Davis Implement Company, the latter not being an agent of the harvester company, but that it bought the implements manufactured by it direct, and the harvester company looked to it for payment, in case cash was not paid at the time of purchase; but that the International Harvester Company would take notes having a proper credit basis from its merchant customers, which had been taken by the latter from the customer making the purchase.
It was the theory of the appellant, Roberts, that the Davis Implement Company was the mere agent of the International Harvester Company, to make sales for it benefit. It is also contended by the appellant, Roberts, that certain parts of the machinery purchased were not, in fact, delivered, were never furnished to Roberts so that he could utilize the machinery in farm operations; and that several persons, representing, as he thought, the International Harvester Company, undertook to inspect the machinery and to put it in workable condition, which, however, they failed to do. He seemed to know nothing more than the fact that these persons came in connection with the matter — he did not know whether they had any business relation with the International Harvester Company; nor was he able to prove that the International Harvester Company was a purchaser with notice of defects or imperfections of the machinery, or had acquired the note subject to defenses possessed by him against the Davis Implement Company. The defendant did not prove the value of the machinery to be different from that stipulated for in the contract of sale, or from that stated in the sheriff's return. The affidavit for replevin appended thereto, and return thereon by the sheriff, was introduced in evidence by the International Harvester Company. At the close of the evidence the court granted the International Harvester Company a peremptory instruction, and entered a judgment for the property, described in gross, without valuing the articles separately, and without giving the appellant the right to redeliver the property or such items thereof as he chose, or, as an alternative, to pay the value thereof.
A motion was made for a new trial, on which motion the court entered a corrected judgment, in which the property was separately valued, and also valued in gross, giving the appellant the right to redeliver the property, or to pay the value of each item, at his option. In other words, on the motion for a new trial the judgment conformed to the requirements of the law, although the original judgment was not in proper form. Also, on this motion for a new trial it was claimed that the defendant, Roberts, appellant here, had certain documents, letters, etc., which, if produced by him, would have tended to warrant and sustain a judgment in his behalf. It appeared, on the hearing of this motion, that all the letters and documents were in Roberts' possession prior to the trial, and that he had inadvertently or through forgetfulness failed to have them in court for introduction on the original hearing. The court held that he was not diligent in presenting these alleged defenses at the trial, and declined to grant a new trial on that ground, or for any other ground set out in the motion for a new trial. It appears, from the showing made on this motion, that there had been a prior contract in regard to some machinery sold to Roberts, which had been adjusted by agreement two or three days before the execution of the note above mentioned; and it is probable that this agreement of adjustment had not been fully carried out. However, that matter was not timely presented, and it appears to have been a separate transaction.
We think the evidence in the record of the trial clearly shows that the International Harvester Company was a purchaser, in due course for value without notice of the note before maturity, and that the Davis Implement Company was not its agent, but a customer to whom the harvester company sold its products; that the Davis Implement Company was the owner of the machinery, and an independent dealer, having the right to sell to whom it would, on such terms as it would; and that the International Harvester Company would buy from the Davis Implement Company such notes as the credit department of the International Harvester Company approved as sound credit risks. There was no error in granting the peremptory instruction.
We also hold that the court had the right, on the motion for a new trial, to correct the judgment originally entered so as to conform to law. The evidence was in the record, the sheriff's return being evidence, with the list and affidavit of the value of the property, and of each item thereof separately valued therein. We are also of the opinion that the court committed no error in overruling the motion for a new trial on the other grounds set up therein. All of the papers and documents sought to be introduced on the motion for a new trial were in the possession of Roberts at the time of the original trial; and it was his fault that they were not then produced, and that no showing was made at that time as to inability on the part of Roberts to produce them, nor was any delay sought, that they might be found and introduced. It is the duty of the party to have his case ready for trial when the trial is entered upon, or to produce satisfactory evidence of reasons why the trial should not then be had; and failing to do so, he cannot afterwards complain of the result of his failure to conform to his duty in that regard.
The judgment of the court below is affirmed.
Affirmed.
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.