Opinion
No. 38339.
May 19, 1952.
1. Gifts — intention and delivery.
The owner of two head of cattle had them brought and delivered to plaintiff at her home, where the owner also lived and was waited on by plaintiff, and the owner stated to several witnesses that he had given the cattle to plaintiff and they remained in her possession for thirty days when the donor died: Held, that the evidence of such facts, if believed, showed that the owner intended to make a gift of the cattle to plaintiff and had consummated the gift by actual delivery to her.
2. Replevin — proof of value of property.
In replevin the introduction of the writ with the officer's return is prima facie evidence of the value of the property.
3. Trial — reopening case for further proof.
A trial court has the right, in its discretion, to reopen a case for further testimony after the plaintiff rests and before passing on a motion for a peremptory instruction.
4. Trial — reopening case for further proof — replevin.
When the plaintiff in replevin had rested her case without proving the value of the property and that it had been wrongfully taken from her possession, it was reversible error not to permit the reopening of the case on her request, before a peremptory has been granted, to make the omitted proof, since it would occasion no extraordinary delay or loss of time and in the administration of justice would be desirable in the end that the rights of litigants shall be fully presented and tried.
Headnotes as approved by Lee, J.
APPEAL from the circuit court of Bolivar County; ED. H. GREEN, Judge.
Chas. C. Jacobs, Jr., for appellant.
I. The court erred in overruling the motion of plaintiff to strike the plea of defendant, Sank McClinton, who claimed as agent for Mary Riggins, after said Mary Riggins intervened in said suit, claiming in her own right.
II. The court erred in granting appellee's motion for a directed verdict because:
(a) The proof in the record of said case showed the value of the property replevied and showed that the court had jurisdiction of the action. Sec. 2848 Code 1942; Wilburn v. Cologero, 97 Miss. 511, 52 So. 784; Wallace v. Bramlette, 163 Miss. 44, 139 So. 627.
(b) It is unnecessary to show wrongful taking to maintain action of replevin. Sec. 2841 Code 1942.
(c) It is unnecessary for plaintiff to show that defendant refused to surrender possession of property or to show and prove demand for property by plaintiff in order to maintain action of replevin. Dearing v. Ford, 13 S. M. 269; Newell v. Newell, 34 Miss. 385; George v. Hewlett, 70 Miss. 1, 12 So. 855; De Vane Chevrolet Co. v. Montgomery Ward, 165 Miss. 185, 147 So. 335.
(d) It is unnecessary for plaintiff to show the replevin action, the writ and the bond. Jacob H. Pierce v. Lacey and Sheppard, 23 Miss. 193; J.W. French v. E.P. Sale, 60 Miss. 517; Griffith on Chancery Practice, 2nd. Ed., Sec. 572, p. 596.
(e) There was sufficient proof in the record to take the case to the jury on the factual question of whether or not there was a gift of the property in question to Ella Scott. Dean v. Brannon, 139 Miss. 312, 104 So. 173; McKinnon v. Braddock, 139 Miss. 424, 104 So. 154; New Orleans N.E.R. Co. v. Jackson, 140 Miss. 375, 105 So. 770; Yates v. Houston Murray, 141 Miss. 881, 106 So. 110; Comfort v. Smith, 198 Miss. 152, 21 So.2d 584; Allison v. Allison, 203 Miss. 20, 33 So.2d 619; Jackson v. Johnson, 126 Miss. 26, 88 So. 410; Carradine v. Collins, 15 Miss. 428; Lacey v. Pelus, 22 So.2d 239; Carradine v. Carradine's Estate, 58 Miss. 286; 28 C.J. 675, 684, 685, 703, Gifts, Secs. 80(4), 92, 137 (b); Pace v. Pace, 107 Miss. 292, 65 So. 273; Johnson v. Grice, 140 Miss. 562, 106 So. 271.
III. The court abused its discretion and committed error in overruling motion of plaintiff praying leave to reopen the case and put on further proof as to factors mentioned in motion for directed verdict. French v. Canton A. N.R. Co., 21 So. 299; Woolworth Co. v. Freeman, 11 So.2d 447.
Alexander, Feduccia Alexander, for appellee.
I. As to judgment on pleadings where claimant's issue interposed. Secs. 2864-2865 Code 1942; Oates v. Sumrall, 183 So. 693; 46 Am. Jur., Sec. 25, p. 16.
II. As to propriety of granting directed verdict to defendant in replevin action:
(a) Failure to prove value.
(b) Necessity of showing wrongful taking. Commercial Credit Co. v. Newman, 198 So. 303; Bell v. Smith, 128 So. 321; 46 Am. Jur., Sec. 25, p. 16; Hogan v. Commercial Credit Co., 116 So. 298.
(c) Necessity of proving refusal to surrender property on demand.
(d) Necessity of showing affidavits, writ or bond. Ross v. Garey, 8 Miss. 47; Greenleaf v. Highland, 1 Miss. 375; Barlow v. Serio, 91 So. 573.
(e) Sufficiency of proof to establish gift. 38 C.J.S., Sec. 42, p. 821; Krickerberg v. Hoff, 201 Ark. 63, 143 S.W.2d 560; Jones v. Jones, 139 So. 873; Stewart v. First Nat. Bank of Vicksburg, 5 So.2d 683; Allison v. Allison, 33 So.2d 619; Duling v. Duling's Estate, 52 So.2d 39, 45.
III. As to whether court abused its discretion in not permitting reopening of case after its indicated ruling on directed verdict and review by appellate court. Watkins v. Jackson E.R. Co., 115 So. 897; 3 Am. Jur., Sec. 971 p. 533; 120 A.L.R. 1364; Stewart v. Eton, (Mich.), 283 N.W. 651; 53 Am. Jur., Sec. 124, pp. 110, 111; Consolidated Nat. Bank v. Pac. Coast S.S. Co., 95 Cal. 1, 30 P. 96, 26 Am. St. Rep. 85.
Ella Scott made affidavit, as required by statute, to replevy from Sank McClinton the cow and calf involved in this litigation. The sheriff executed the writ, took the property, and valued the animals at $160 and $75 respectively. He thereupon delivered the same to the affiant after she tendered a bond in double the value which he had fixed.
Ella then filed her declaration in the circuit court. Sank filed a general issue plea, and gave notice that he held the cattle as the agent of Mary Riggins, the sole surviving heir at law of Alex McClinton, deceased. Mary Riggins, in her capacity as administratrix, filed a claim to the cattle.
(Hn 1) At the trial, Ella introduced evidence to show the following: Alex McClinton lived at her house. She cooked and washed for him. They were good friends. Alex had the cow and calf brought to her home, and they were placed in her possession. He told several witnesses that he had given the cattle to her. The cattle had been in her possession about thirty days when Alex died. If this evidence was believed, it showed that Alex intended to make a gift of the cattle, and that he consummated the gift by actual delivery to Ella. Comfort v. Smith, 198 Miss. 152, 21 So.2d 584; Allison v. Allison, 203 Miss. 20, 33 So.2d 619.
However, Ella offered no proof as to the value of this property. She did not even introduce the writ with the officer's return. Neither did she offer any proof that the cattle were wrongfully taken from her possession.
When Ella rested her case with these two material elements omitted, Sank made a motion to exclude and for a directed verdict in his favor, assigning the two omissions and other reasons. Ella immediately asked to reopen the case in order to show the value of the cattle. A colloquy, or running argument between counsel, then ensued, during which the trial judge interspersed several comments. Finally, counsel for Ella said: "Your Honor, will you give us permission to reopen the case and make such proof as the court deems necessary on this motion of the defendant?" There was then a further short comment by each of the counsel, and the court said: "All right, reopen and offer such proof as you want." Again there was a short comment by each counsel, when the court said: "I am going to give a directed verdict for the defendant." Such verdict was entered, and Ella appeals.
Manifestly the court would have been right in sustaining the motion to exclude, if no request to reopen had been made, because two material elements were lacking in the proof. However, there was a request to reopen, and the court actually sustained the motion. It should have been a simple matter to make the proof as to the value. (Hn 2) The introduction of the writ, with the officer's return, would have been prima facie. Sec. 2848, Code of 1942. Wallace v. Bramlette, 163 Miss. 44, 139 So. 627. Moreover, since Sank McClinton admitted that he took possession of the cattle, it should have also been a simple matter to show whether or not such taking was wrongful.
(Hn 3) A trial court has the right, in its discretion, to reopen a case for further testimony after the plaintiff rests and before passing on the motion for a peremptory instruction. Watkins v. Jackson E.R. Co., 149 Miss. 766, 115 So. 897. See also 3 Am. Jur., Appeal and Error, Sec. 971, p. 533.
(Hn 4) In view of the fact that there was no occasion for any extraordinary delay or loss of time by the court, and that it is desirable, in the administration of justice, that the rights of the litigants shall be fully and fairly presented and tried, we think that the rule announced in French v. Canton A. N.R. Co., 74 Miss. 542, 21 So. 299, should have been followed here. Besides, in F.W. Woolworth Co. v. Freeman, 193 Miss. 838, 11 So.2d 447, 450, where complaint was made because the trial court had allowed the appellee to testify further, after she had rested her case, and after a motion to exclude had been made, the court said: "No error here appears; on the contrary, the court below would have abused its discretion had it not permitted the introduction of this evidence."
We think that the proper exercise of judicial discretion required the reopening of the case; and that the denial of the motion therefor constituted error, for which the cause must be, and is, reversed.
Reversed and remanded.
Roberds, P.J., and Hall, Arrington and Ethridge, JJ., concur.