Meyer v. Mosler ex rel. Warner, 64 Miss. 610

Meyer v. Mosler ex rel. Warner

64 Miss. 610 | Miss. | 1887

Cooper, C. J.,

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 *613in that suit and gave bond for the forthcoming of the safe, after which that suit was removed to the federal court, where it is vet pending. Hopper & Co., not having paid for the safe, this action, instituted as an action of replevin, was commenced by Mosler, Bahañ '& Co., who sue for the use of Warner, to recover possession of the safe from Meyer. The officer to whom the writ was directed returned that he had served it by “ leaving a true copy with Jacob Meyer.” Upon this return the plaintiff seems to have elected to proceed with the action to recover the value of the safe under § 2619.of the code, which declares, “If the return of the officer on the writ shall show a failure to take the goods and chattels, but that the defendant has been summoned, the plaintiff may declare and prosecute the action for the recovery of the value of the property, and damages for the taking and detention, or for a conversion of the property, as if he had thus commenced his action.”

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 *614the purchase price it is agreed that the safe should continue the property of the Mosler Safe and Lock Company until payment should be made. Mosler, JBahan & Co. are the only persons connected with the litigation who have no sort of interest in its subject-matter ; they have casually dropped into the litigation without any hope of gaining anything by it; the sole purpose of their intervention seems to have been to lend their approval and countenance to whoever should be inclined to demand the property of the defendant. The usee’s title cannot be considered in this action, and since the plaintiffs have none it must fail. A second reason why the judgment is erroneous is that nothing appears of record which entitled them to abandon the action as one in replevin and proceed to recover the value of" the safe. The return of the officer does not show “ a failure to take the goodsit does not show whether he seized the safe or made any effort so to do. It was never contemplated by the statute that a plaintiff should sue out a writ of replevin and abandon it as such without cause, and go for the value of the property demanded. The object of the law is to prevent a failure of justice by the action of the defendant in secreting of refusing to deliver the property sued for on proper demand being made by the officer therefor. It is not sufficient to justify such change of remedy that the officer, without making any effort to properly perform his duty, contents himself with handing a copy of the writ to the defendant. On both the grounds indicated the action must fail.

The judgment is reversed and cause remanded.