Opinion
No. 33915.
December 4, 1939.
1. COURTS.
The procedure in a county court in an action of replevin which before the creation of county courts would have been in the jurisdiction of the circuit court was required under statute to be the same as it would have been in the circuit court (Code 1930, sec. 696).
2. JUDGES.
The statute authorizing a circuit judge who is disqualified to give notice to the judge of another district and require him to attend and try the case, construed with statute providing that the rule of pleading, practice, and procedure in a county court should be the same as in the several other courts, must be read as if the words "county judge" were written therein (Code 1930, secs. 696, 737).
3. JUDGES.
A county judge of Leflore county who appeared to try a case in Washington county when the judge of Washington county recused himself and required him to attend the county court and try the case was either a judge de jure or de facto and his right to try the case could not be questioned by the litigants (Code 1930, secs. 696, 737).
4. PLEADING.
In action of replevin involving question whether certain property was realty passing under one clause of a will or personalty passing under residuary clause, filing of copy of will as an exhibit to plaintiff's declaration was not necessary, since statutes providing for the filing of a writing with a declaration do not apply to actions of replevin (Code 1930, secs. 526, 527).
5. REPLEVIN.
In action of replevin, the trial court did not err in refusing an instruction directing the jury to find for defendant where defendant was not entitled to that instruction with respect to all of the property replevied.
6. FIXTURES.
A plantation bell resting on a wooden stand or frame and attached thereto by removable metal bolts was a "fixture" which passed as part of realty under will.
APPEAL from the circuit court of Washington county; HON. S.F. DAVIS, Judge.
Wynn, Hafter Lake, and G. Ramsey Russell, all of Greenville, for appellant.
The county court erred in overruling motion of counsel for the appellant that Hon. M.F. Pierce recuse himself as trial judge for the reason that said Hon. M.F. Pierce was not qualified to try said cause.
Sec. 165, Const. of the State of Miss.
The Constitution being the prevailing law of the state, it is submitted that Section 737 of the Mississippi Code of 1930 cannot stand and the procedure provided under said section cannot be followed. Section 738 of Mississippi Code of 1930 providing for special judges is in accordance with Section 165 of the Constitution and should have been followed.
The county court erred in permitting the appellee, over the objection of the appellant, to amend his declaration on the trial of this cause by making the will of Annie P. Eatherly, deceased, an exhibit to said declaration although said will had not been made an exhibit to said declaration when such declaration was filed. The court further erred in allowing the appellee to introduce in evidence the will of Annie P. Eatherly, deceased.
Sec. 625, Miss. Code of 1930.
The county court erred in not granting the appellant's request of a peremptory instruction. Nowhere in the record is there any proof on the part of the appellee showing that the appellee was entitled to the possession of the articles sued for. Replevin is purely a possessory action, and an ownership entitling possession as well, or else the right to possession itself, must definitely be proved in a replevin action in order for the plaintiff to recover. Proof of an ownership without further proof that such ownership also gives the right to possession is not sufficient.
Coleman v. Low, 13 So. 227; Garmon v. Fitzgerald, 151 So. 726-728.
It is admitted that generally where there is a dispute between an heir at law and an executor as to whether an article located on land and used in connection with it is a fixture and becomes a part of the realty, or is personal property, doubt will be generally resolved in favor of the heir at law. However, in this case, the contest is not between an heir at law and an executor but is between the agent of the heiress at law, Anne Hargrave Bridges, who is also the residuary devisee and legatee on the one hand, and the devisee who was not an heir at law, to-wit, Wilson R. Eatherly. Therefore, the rule as to a contest of this nature between an executor and an heir at law does not apply here.
It cannot be said that even if these articles, the recovery of which is sought, should be considered as fixtures, that as such fixtures they were any more attached to the lands devised to the appellee than they were to the lands devised to the appellant, since they were originally placed upon a single tract of land, for the beneficial use of the entire tract. It follows that the question of whether these articles were fixtures or not does not determine the question as to whether the appellant or the appellee is entitled to the possession of them.
Ernest Kellner, of Greenville, for appellee.
Without the citation of any authority, counsel contend that Section 737, Code 1930, violates Section 165 of the Mississippi Constitution, and that therefore the county judge of Leflore County was disqualified to try this case. This court has held that because there is no inhibition in Section 165 of the Constitution of 1890 it does not deprive the Legislature of the power of passing laws authorizing the selection of special judges.
Powers v. State, 83 Miss. 691.
The County Court Act provides that the rule of pleading, practice, and procedure in the county court shall be the same as those established as governing the several other courts as respects the several matters mentioned; that is to say, if the matter be such as would be in the Circuit Court, the practice shall be the same as in the Circuit Court.
Sec. 696, Code 1930.
Counsel argued that the county court erred in permitting the appellee to amend his declaration and make the will of Mrs. Annie P. Eatherly an exhibit thereto and in permitting the same to be introduced in evidence. Even assuming, which I do not concede, that the will or a copy thereof, was a necessary exhibit to the declaration, a mere reference to Section 567, Code 1930, permitting amendments to any pleading or proceeding at any time before a verdict in the Circuit Court, which, of course, is applicable to the county court, demonstrates that the county court did not err in permitting the amendment and in allowing the will to be introduced in evidence.
The only question involved in this case and which was submitted to the jury under proper instructions is whether or not the property described in the declaration and writ were fixtures on the land devised to the appellee in Item 6 of the will of Mrs. Annie P. Eatherly. On this question I think the proof in this case is under the decisions of this court sufficient to have warranted the giving of the peremptory instruction requested by the appellee. That being true, the appellant cannot complain that his requested peremptory instruction was refused and the case submitted to the jury.
Under the decisions of this court the rule is well established that as between heir and devisee the rule as to fixturs is highly in favor of the devisee, and if the property in question though slightly attached was placed on the land by the testator and was necessary or useful in the enjoyment of the land, such property is a fixture and passes to the devisee as against the heir.
Richardson v. Borden, 42 Miss. 71; Frederick v. Smith, 147 Miss. 437; M.L. Virden Lumber Co. v. Sherrod, 167 Miss. 297.
As to all of the property involved in this case, the record shows that it was placed on the land by the testator, was attached thereto, had been there for many, many years, and was necessary and useful in the enjoyment of the land.
Argued orally by Albert Lake, for appellant.
This is an action of replevin wherein the appellee was the plaintiff in the court below. The property replevied is a plantation bell; a blacksmith's anvil, drill, and blower; eighty feet of hayrack; and seventy-five iron fence posts. The Judge of the County Court of Washington County, in which the case originated, recused himself, notified the Judge of the County Court of Leflore County thereof, and required him to attend the County Court of Washington County and try the case. The Leflore County Judge thereafter appeared and was met with an objection to his trying the case, the ground thereof being that he was without any legal authority to do so. This objection was overruled and the case proceeded to trial, resulting in a verdict and judgment for the appellee, which was affirmed on appeal to the circuit court. The assignments of error are that the Leflore County Judge erred in trying the case over the appellant's objection; in permitting an amendment by the appellee to the declaration; and in refusing the appellant's request for a directed verdict.
This action of replevin prior to the creation of county courts would have been in the jurisdiction of the circuit court. Consequently, under Section 696, the procedure therein in the county court must be the same that it would have been in the circuit court. Under Section 737, Code of 1930, when a judge of a circuit court is disqualified to try a case pending therein he may give notice thereof to the judge of another district, and require him to attend and try the case. Construing this Section with Section 696 of the Code, it must be read as if the words "county judge" were written therein. But the appellant says that this provision of Section 737 violates Section 165 of the Constitution and is therefore void. It will be unnecessary for us to inquire into this for the reason that in acting under the provisions of this statute the Leflore County Judge was either a judge de jure or de facto, consequently, his right to try the case cannot be questioned by the litigants therein. Pringle v. State, 108 Miss. 802, 67 So. 455; Bird v. State, 154 Miss. 493, 122 So. 539; 33 C.J. 933.
The controversy grows out of the will of Annie P. Eatherly, deceased. At the time of her death she was and had been for a number of years the owner of a very large plantation. She devised a portion of this plantation to the appellee, and another portion thereof to Annie Hargrave Bridges under a clause of the will providing that "all the residue and remainder of my estate of every kind and description, I devise and bequeath to my granddaughter, Annie Hargrave Bridges."
Long prior to the death of this testator a large plantation bell had been installed on the plantation for use in notifying the plantation hands when to go to and return from work. The bell rested on a wooden stand or frame, and was attached thereto by metal bolts easily removable. This bell, and the other property included in the writ of replevin, was on that portion of the plantation devised to the appellee. When this testator died L.M. Winn was her plantation manager, and after her death, and without the consent of the appellee, under the impression that he had the right so to do, Winn removed this bell and the other property described in the replevin affidavit to the Bridges' property, of which he is now in charge. If this bell and the other property described in the replevin affidavit were so affixed thereto as to become a part of the land, then they became the property of the appellee, under the will. If not so affixed, they were personal property and went to Annie Hargrave Bridges under the residuary clause of the will.
No copy of the will was filed with the declaration and when it was offered in evidence the appellant objected thereto, whereupon the appellee was permitted to amend the declaration by filing a copy of the will as an exhibit thereto, and a motion by the appellant for the continuance was overruled. The filing of the copy of this will as an exhibit to the appellee's declaration was not necessary for the reason that Sections 526 and 527 have no application to actions in replevin. Quarles v. Hucherson, 139 Miss. 356, 104 So. 148.
The appellant requested, but was refused, an instruction directing "the jury to find for the defendant." If the appellant was not entitled to this instruction as to all of the property replevied, the court below committed no error in refusing it. The plantation bell, under Love v. Union Central Life Ins. Co., 168 Miss. 408, 150 So. 794, and the authorities therein cited, was undoubtedly a fixture, for the reasons therein stated, consequently, the appellant was not entitled to a directed verdict as to it.
Affirmed.