64 Miss. 610 | Miss. | 1887
delivered the opinion of the court.
The record in this case comprises all sorts of facts and suits. Aided by the brief of counsel, we have, we think, been successful in eliminating from consideration so much of the record as has relation to another suit which had been brought by the present plaintiff against the defendant, but which had been dismissed before the institution of this action.
It seems that in 1882 a firm of Hopper & Co. bought of Warner a “ Mosler ” iron safe, and entered into a written contract by which the title to the safe was reserved to Warner until payment should be made of the purchase price. They then executed two notes, each of fifty dollars, payable to the Mosler Safe and Lock Company, and in the notes declared that the safe should be considered as the property of that company until the notes should be paid. Hopper & Co. then sold the safe to Meyer & Son. Afterward it was levied on under an attachment against that firm sued out by one of their creditors. Meyer interposed a claimant’s issue
A jury was waived and the case was heard and determined by the court, which rendered a judgment in plaintiff’s favor for the sum of one hundred dollars; There may be other reasons why the judgment should bereversed, but it is sufficient to indicate two, either of which is fatal to the action in its present form'. It is well settled that an action of replevin cannot be brought in the name of one pei’son for the use of another, for the action involves nothing but legal rights, and if equities are' to be settled another form of action must be resorted to. The name of the usee, therefore, may be treated as surplusage, but a recovery can only be had where it is shown that the plaintiff (nominal plaintiff) is entitled to recover. Hundley v. Buckner, 6 S. & M. 70; Brown v. Thomas, 28 Miss. 286 ; Lee v. Gardiner, Ib. 521 ; Pearce v. Twitchell, 41 Miss. 344.
In this suit it is manifest that Warner has been treated as the real plaintiff by all parties and by the court. What possible interest or connection Mosler, Bahan & Co. have with the suit or in the property sought to be recovered is not shown. By the contract, which appears in the record but not in the bill of exceptions, it is provided that the property in the safe should remain in Warner until payment of the purchase price; by the notes given for
The judgment is reversed and cause remanded.