130 So. 2d 256 | Miss. | 1961
The appellant Emmitt S. Robinson borrowed $2,800.00 from the Acceptance Corporation of Mississippi, payable in 24 installments of $120.00 each. It is alleged that Em-mitt S. Robinson gave a chattel mortgage at the same time, to secure the payment of the note, in which Louis
In compliance with the instruction of the court the jury returned its verdict for the plaintiff and fixed the value of the property replevined. A judgment was accordingly entered by the County Court of Harrison County in the regular statutory form.
The statutory replevin proceeding is purely a possessory action under the laws of this State. Scarborough v. Lucas, 119 Miss. 128, 80 So. 521; Moore v. Cunningham, 124 Miss. 537, 87 So. 112. The affidavit in replevin must aver that the plaintiff is entitled to the immediate possession of the property sought to be recovered (Herrington v. Stimpson Computing Scale Co., 159 Miss. 416, 131 So. 879) unless the replevin action is brought for the use of another. Meyer v. Mosler, Bahan & Co., 64 Miss. 610, 1 So. 837.
The circuit judge was therefore correct in holding that the Friendly Finance Company of Biloxi, Inc., could not maintain an action in replevin on a chattel mortgage before foreclosure; because the right of possession was in the trustee named in the chattel mortgage. McCarty v. Key, 87 Miss. 248, 39 So. 780.
The circuit court, having found that the plaintiff in the cause of action had no right to maintain a replevin suit against the defendant for the property described in the affidavit and declaration, should have entered judgment in the form set out in the statute.
The defendant offered to prove in the county court that the note was usurious, and was therefore void both
The burden of proving the right to the immediate possession of the property sought to be recovered, is upon the plaintiff in a replevin action. Brunson v. Volunteer Carriage Co., 93 Miss. 793, 47 So. 377; Scarborough v. Lucas, 119 Miss. 128, 80 So. 521; Spears v. Robinson, 71 Miss. 774, 15 So. 111. The plaintiff may show that the figures in a note are charges allowed by law and not interest. Early v. Williams, (Miss.) 123 So. 2d 446. On the other hand, the defendant may, under his plea of not guilty, show that the chattel mortgage is void, as a defense to the replevin action. Puckett v. Fore, 77 Miss. 391, 27 So. 381; Associates Discount Corp. v. Ruddock, et al, 224 Miss. 533, 81 So. 2d 249. The defendant may introduce evidence to show an affirmative defense under the plea of not guilty. See Section 2859, Miss. Code 1942; Munn v. Potter, 111 Miss. 180, 71 So. 315; McCaskill v. Little, 214 Miss. 331, 58 So. 2d 801.
The defendant Emmitt S. Robinson alleged as an affirmative defense that he did not sign the chattel mortgage and that the note on which the replevin action is based, is a usurious note in violation of Section 5591-10, Miss. Code 1942. The burden of proof was therefore upon the defendant to sustain his affirmative defense. Stewart v. Graham, 93 Miss. 251, 46 So. 245. The defendant could not maintain a counter claim for a money judgment against the plaintiff in a replevin action, but he could introduce evidence to sustain his affirmative defense. The county court had not permitted the introduction of evidence on the question as to whether or not the note was usurious, on the theory that no evidence would be permitted to establish a counter claim. The judgment of the circuit court sustained the action of the county court on this point, and, although the case must be dismissed, the judgment should be-corrected insofar as the right- to introduce the affirmative testimony is concerned.
Affirmed in part, reversed in part.