53 So. 413 | Miss. | 1910
delivered the opinion of the court.
The value of the mules in controversy was not proven, and the jury in their verdict fixed no value. The court rendered judgment awarding the mules in controversy to appellee, and, on his failure to deliver them up, judgment for appellee against appellant and the sureties on his appeal bond for $100, with interest, cost, and ten per cent, attorney’s fees. It was necessary to prove the value, and that it be found by the jury in their verdict.
The judgment of the court is 'erroneous. If the plaintiff recovers in replevin, and defendant has given bond, the judgment must be against the defendant and the sureties on his bond for the return of the property to plaintiff, if to be had, or pay the value thereof, or of plaintiff’s interest therein, if a limited one, “as assessed by the verdict of the jury.” Code 1906, | 4233. The court was without authority to render judgment for the amount of the debt due by appellant to Powell & Co., in the absence of proof and verdict of the jury fixing the value. Had there been such proof and verdict, the judgment should have been for the delivery of the property or its value, with costs, if less than the debt, and, if more, then for Powell & Co.’s
Reversed and remanded.
delivered the'opinion of the court in response-to the suggestion of error.
The reversal of this case on the ground set out in the opinion rendered would not result in a new trial. It would be remanded' for the purpose alone of awarding a writ of inquiry to assess:
There is another ground on which the judgment must be reversed, and a neAV trial aAvarded, which the court purposely refrained from noticing in the former opinion, because, in its nature, it was sucb an error as Avould not probably occur again in another trial.; the reversal, however, in the present view of the ■court should have been placed on both grounds. The other one is this: At the time of the trial in the court below, appellant was .serving a sentence for some crime, and in the custody of the convict contractor, fourteen miles or more from where the court was held. The trial was set for a day, and an order made by the ■court on the contractor to have appellant present in court on that day. At the time appointed, be was not present. His attorney applied for a continuance until next day, supporting it 'by bis oato affidavit, setting out the facts above, and, in addition, that be had communicated over the telephone with the contractor .and appellant, and was informed that appellant was on bis way to court, but bad been overtaken by a heavy rain, and, having been sick a feAv days before, Avas afraid it would cause a-return •of illness, and for this reason he might not be able to reach the •court, and that appellant’s presence at the trial was indispensable to the defense of bis case, that be bad a good defense, Avas a necessary -witness, and bad in bis possession papers and documents to establish his defense. The application was overruled, and the trial bad in the absence of appellant. Our judgment is that this was-error.
Suggestion of error overruled.