6 So. 2d 309 | Miss. | 1942
This is an action by the appellee under Section 2255, Code of 1930, to impress a mechanic's lien on an automobile truck, in which there was a judgment in his favor. The appellant filed a plea of res judicata and its only complaint in this court is that the court below erred in sustaining a demurrer to this plea.
The record discloses that Myers purchased the truck from Donald Chevrolet Company by a written contract of sale setting forth twelve deferred payments due on the truck evidenced by notes for $41 each and reserving title to the truck until all of these notes were paid and providing that "if purchaser default in complying with the terms hereof, or seller deems the property in danger of misuse or confiscation" the seller may take possession of the truck and resell it for the payment of the balance due him thereon. While Myers was using the truck on highway construction work in Covington County it was repaired for him by the appellee and returned to him without his paying the appellee's charges therefor. Afterwards Myers carried the truck into Lawrence County where he contracted another indebtedness for repairs to it by Allen Sandifer, who instituted an action to recover the same and to impress a lien on the truck for the payment thereof. Myers was the only party defendant to this action. The appellee hearing thereof intervened therein under Section 2263 of the Code. A judgment was rendered against Myers on both of these claims and the truck was directed to be sold for the payment thereof. Allen Sandifer then assigned their interest in this judgment and their lien on the truck to the appellee, who shortly thereafter purchased the truck at its sale under the judgment and removed it to his place *450
of business in Covington County. Myers' notes for his deferred payments on this truck, together with the sales contract under which he purchased it, were assigned by Donald Chevrolet Company to General Motors Acceptance Corporation, which corporation, after the return of the truck to Covington County, instituted an action of replevin against Shoemake therefor, in which a judgment was rendered awarding the Acceptance Corporation the possession of the truck. Afterwards the instant action by Shoemake to impress a lien on the truck was instituted. Shoemake's affidavit makes Myers, the General Motors Acceptance Corporation, and Fagan Chevrolet Company (successors to the rights of Donald Chevrolet Company), defendants thereto. No service of process was had on any of these parties, but the two latter appeared and defended the action. The judgment plead as res judicata to this action by Shoemake is the judgment rendered against him in the replevin action in favor of General Motors Acceptance Corporation. This judgment is res judicata here if, but not unless, Shoemake's right to a lien on the truck because of the repairs made thereto entitled him to retain possession thereof as against the claim of General Acceptance Corporation. General Motors Acceptance Corporation under the assignment to it of the contract by which Myers purchased the truck had a lien thereon and the right to the possession thereof, but subordinate to that of Shoemake for the repairs made by him and by his assignors Allen Sandifer, provided the repairs were "reasonably necessary for its preservation and operation, and to prevent deterioration." Moorhead Motor Co. v. H.D. Walker Auto Co.,
Reversed and remanded. *452
