Biddle v. Paine, 74 Miss. 494

Biddle v. Paine

74 Miss. 494 | Miss. | 1896

Whitfield, J.,

delivered the opinion of the court.

The question for decision on this motion is, what is the test of the jurisdiction of this court, on appeal from a judgment in replevin by the tenant against whom the landlord has dis-*497trained — the value of the property fixed by the judgment, or the amount of the debt distrained for as so fixed % The action for statutory damages by the tenant, when no rent is due, provided by § 2517, code of 1892, is a separate and distinct suit from this replevin suit, the damages in which latter suit are the usual damages in such suits, and are provided for by § 2522. No aid, therefore, can be had on the notion that the $17 statutory damages can be added to the $33 rent due. The replevin, too, was for corn; the damages for alleged illegal sale of cotton seed never replevied. The judgment — the test for us — is on a verdict finding $33 due on rent, and is itself that the landlord, the avowant, recover of the tenant, plaintiff in replevin, and his sureties the corn, or its value, $60, to an amount sufficient to pay the said $33 rent, etc.

It is true the replevin is the only suit, the distress warrant being returnable into no court, being process in the nature of execution, and that when the tenant gives bond “ the attachment is discharged, and the proceeding becomes an action of replevin.” Towns v. Boarman, 23 Miss., 186. It is also true that the tenant'becomes plaintiff, is the “actor” (Maxey v. White, 53 Miss.), and the landlord the defendant, though, on the issue of rent due the statute puts the burden of proof on him and gives him the opening and close.

But, as pointed out in Maxey v. White and Towns v. Boarman, supra, this is unlike the ordinary action of replevin. There the value of the property is the test of jurisdiction as to where the suit shall be brought; here (§ 2518, code 1892), an alternative test is provided — the value of the property or the amount distrained for. There not guilty is the only proper plea; here it is an improper plea, the statute making non cepit, or that the goods were rightfully seized, etc., the only allowable pleas. Here, the plaintiff having bonded, and the landlord winning, the jury find merely that the rents and supplies were due, and the distress rightfully made; there they find the defendant entitled to the possession of the property or its value, *498and, the judgment is that the plaintiff restore to the defendant the property, or pay him its value and damages (§ 3727, code 1892); here, that the landlord recover from the obligors in the replevy bond the property, or its value to an amount sufficient to pay the sum found due for rent or supplies, and if the property be not sufficient, then that execution go against the tenant for the residue. There the plaintiff in replevin sues for the recovery of the property, where he has some lien to be satisfied, and, if he recovers, the property is awarded to him, to be dealt with according to the terms of the lien, by contract or otherwise. Plere the landlord, who has the lien, does not deal with the property, if recovered, himself, but “it is sold to satisfy the judgment” by the sheriff, and if it does not satisfy it, execution runs for the residue against the tenant. Indeed, it is expressly declared, in Towns v. Boarman, 23 Miss., 188, that “in this proceeding the real subject of inquiry is, whether any rent (or supplies now) .is due. ’ ’

The subject is not free from difficulties, but we think the view which best harmonizes with the reason and spirit of the statute providing this peculiar replevin — considering its total unlikeness to the ordinary action of replevin — is that which prescribes, as the test of our jurisdiction on appeal — where the case originated before a justice of the peace — the amount dis-trained for as fixed by the judgment of the court below (§ 85, code 1892). The verdict here is for thirty-three dollars rent, and nothing more. The judgment appealed from is that the landlord recover the corn, or its value, sixty dollars, to an amount sufficient to pay said thirty-three dollars, etc. This is an ascertainment that the “amount in controversy” (§85, code 1892), was thirty-three dollars, and, the case having originated in a justice court,

The motion is sustained.