Summary
In National Box Co. v. Bradley, 171 Miss. 26, 157 So. 91, 95 A.L.R. 1500, the Court was considering a damage suit wherein the trial court viewed the premises.
Summary of this case from Clements v. Town of CarrolltonOpinion
No. 31240.
October 22, 1934.
ESTOPPEL.
In replevin suit, giving of forthcoming bond by defendant being an admission of possession of property and equivalent to admission that property was in district in which writ issued and was returned, granting of motion to direct verdict for defendant on ground proof failed to show refusal to surrender property and for lack of proof that property was taken in district in which writ issued and was returned was error.
APPEAL from the Circuit Court of Chickasaw County.
Elliott Parker, of Houston, for appellant.
J.R. Chenault, justice of the peace, issued the writ of replevin making it returnable at Houston on the 5th day of December, 1931, and defendant's replevin bond was so conditioned, and said J.R. Chenault tried the issue. This seems to be conclusive in itself that the goods were found in district No. 1 of Chickasaw county Mississippi.
Lewis v. Sinclair, 126 Miss. 16, 88 So. 401.
If there were not a scintilla of evidence introduced to show that she refused to surrender the property, or that the property was taken in the first supervisor's district of Chickasaw county, it is our opinion, and we believe it is the law, that she is estopped to deny either allegation by the fact that she executed a replevin bond and kept the property in her possession.
Carraway v. Wallace et al., 17 So. 930; Furst v. Pease, 97 Miss. 468, 52 So. 257; Fitzgerald v. Williams, 136 Miss. 250, 101 So. 370; Dearing v. Ford, 13 S. M. 269; Newell v. Newell, 34 Miss. 385; George v. Hewlett, 70 Miss. 1, 12 So. 855, 35 Am. St. 626; De Vane Chevrolet Co. v. Montgomery Ward Co., 165 Miss. 185, 147 So. 335.
C.A. Bratton, of Pontotoc, for appellee.
Nowhere does the record show that Miss Pearl Berry had this property in the first justice peace court district of Chickasaw county; neither does the record show that the property was found by the officer in the first district of Chickasaw county.
Section 3081, Code of 1930, provides, "that the action in replevin may be instituted in the justice court district in which the defendant . . . or the property may be found."
Stanley v. Cruse, 134 Miss. 542.
The appellant was plaintiff in the court below and sued out a writ of replevin for certain property sold by him to the appellee for the conduct of a beauty shop in Houston, Mississippi. The affidavit of replevin alleged that the property was wrongfully detained by Miss Pearl Berry in district No. 1 for the election of justices of the peace in Chickasaw county, and gave the items of property and the value of each item separately.
There was proof that demand was made for the property, and the writ of replevin appears to have been introduced as well as the bond given for the forthcoming of the property.
It was also proven in the evidence that the supervisors' district No. 1 was the district in which Houston is situated, and the value of the property was proven.
At the conclusion of the appellant's evidence, the defendant (appellee here) moved to exclude the evidence and to direct a verdict for the defendant, first, because the proof failed to show that the defendant refused to surrender the property, and, second, because there was no proof that the property was taken in the first supervisors' district of Chickasaw county.
This motion was sustained by the court below, which we think was error. The giving of the bond was an admission of the possession of the property and was equivalent to an admission that the property was in district No. 1 in which the writ issued and was returned. Fitzgerald v. Williams, 136 Miss. 250, 101 So. 370; Furst v. Pease, 97 Miss. 468, 52 So. 257.
There was no motion in the court below to dismiss the writ of replevin on the ground that the property seized was found in any other district than that in which the writ was directed and the trial had.
For the errors indicated, the judgment will be reversed and the cause remanded for a new trial.
Reversed and remanded.