116 So. 298 | Miss. | 1928
It is fairly deducible from this record, though no written instructions are contained herein, that the court gave a peremptory instruction to the jury to find for the plaintiff and fix the value of the property involved. The written instruction requested by the defendant, and marked "refused" by the court, is in the record. The jury returned a verdict in favor of the plaintiff, appellee here, and fixed the value of the property in controversy at one thousand dollars. The interest of the appellee in the automobile was shown to have exceeded that amount, as disclosed by the conditional contract, note, and the oral testimony in the case.
In a replevin suit, it is essential to the maintaining of plaintiff's case that he show that the defendant was in possession of the property, and that said possession was unlawful. This record is absolutely lacking in proof or any evidence that any writ of replevin was ever issued, save the recitals in the judgment from which this appeal is prosecuted. It was necessary that a levy by the sheriff on the property to be taken in replevin be shown; it was necessary that a writ of replevin be issued; and it was necessary that the record should show that the appellant was in possession of the property. The plea of not guilty filed by the appellant, J.B. Hogan, put in issue all of the *656 material facts in the declaration, one of which was that the defendant, appellant here, was in possession of the property. 23 R.C.L., p. 874, section 26; Id. p. 931, section 102.
We do not think the affidavit in replevin would be proof of any fact; nor does the notice filed by the defendant, the appellant, under the general issue, admit possession. While the judgment recites that it is rendered against the appellant, Hood, and the sureties on his bond, no such bond appears in this record. For the failure of proof that the appellant was in possession of the property, and for the failure to show a levy on the property by the proper officer, this case must be reversed. The judgment of the lower court indicates to us there must have been a levy and a forthcoming bond, and that the appellee could have shown these facts. For these reasons, we do not think the appellant is entitled to a judgment here, but that the merits of the controversy can be fully developed by another trial.
Reversed and remanded.