Mitchell v. McDavitt, James & Co.

Mississippi Supreme Court March 15, 1893

Mitchell v. McDavitt, James & Co., 70 Miss. 608 (Miss. 1893)

Campbell

Opinion of the Court

Campbell, C. J.,

delivered the opinion of the court.

This record does not disclose any just ground for the verdict, which should have been set aside. There is nothing unreasonable or improbable in the testimony of the witnesses, and it discloses a transaction which divested the judgment-debtor of any interest in the property before the right of the judgment creditors attached.

The fact that Mitchell, the trustee, committed the blunder of making claim as such, and afterwards made affidavit of ownership by H. L. Fox, and testified to that on the trial, amounted to nothing, and yet that was made much of, and probably was very influential in producing the result which we think is unwarrantable. Let another trial be had.

Reversed and remanded.

Reference

Full Case Name: J. W. Mitchell v. McDavitt, James & Co.
Status: Published
Syllabus: 1. Sale; Fraud. Evidence. Verdict unsupported. Where a claimant of personal property seized under execution, introduces in evidence a bill of sale from the debtor-, executed prior to the date of the judgment, conveying the proxierty to him in part satisfaction of a trust-deed, and the testimony of the claimant and the debtor in support of the transaction is not unreasonable or improbable, and not contradicted by any positive evidence, a judgment lor plaintiff should be set aside as unsupported, although the property was found in defend- . ant’s x>ossession, and there were circumstances that, unexplained, might have cast a susx>icion on the good faith of the sale. 2. Practice. Claimant’s issue. Appeal to circuit court. New affidavit. In such case, the fact that the claimant, through mistake, made affidavit in the justice court, claiming as trustee in the trust-deed, and, after appeal to the circuit court, filed an amended affidavit claiming as agent for the beneficiary, was of no importance, and should not operate to his prejudice.