Mississippi Supreme Court, 1934

Collins v. Wheeless

Mississippi Supreme Court · Decided October 22, 1934 · Griffith

157 So. 82; 171 Miss. 263; 1934 Miss. LEXIS 206 (Southern Reporter)

Counsel

W.H. Cox, of Jackson, for appellant. The measure of damage, if any, is the same as in any action of replevin. Thornton v. Gardner, 99 So. 131, 134 Miss. 485 ; Mars v. Germany, 100 So. 23, 135 Miss. 387 ; Smith Chev. Co. v. Finch, 117 So. 258 , 150 Miss. 854 . The attachment was "brutum fulmen" as to the appellee. Tebo v. Betancourt, 19 So. 833, 73 Miss. 868 . The judgment is contrary to the law of the case and is against the undisputed evidence in the case. Tarver v. Lindsey, 137 So. 93 , 161 Miss. 379 ; Tyson v. Utterback, 122 So. 496 , 154 Miss. 381 ; Stanley v. Stevens,. W.E. Morse, of Jackson, for appellee. We desire to answer the second point of appellant's brief first, wherein he cites the case of Tebo v. Betancourt, 19 So. 833, 73 Miss. 868 . We cite first the case of Buckley v. Van Diver, 12 So. 905, 70 Miss. 622 , in which the court held an attorney's fee was recoverable on the attachment bond, that was wrongfully sued out. The case of Roy v. First National Bank, 37 So. 641, was a case that showed the limitation of the Tebo case, in which the court said: "The distinction between the case of Tebo v. Betancourt, 73 Miss. 868 , 19 So. 833, 55 Am. St. Rep. 573, and Buckley v. Van Diver, 70 Miss. 622 , 12 So. 905, is that in the former there was no levy of any kind of the attachment writ; there was a levy in this case, and it is controlled by Buckley v. Van Diver." In the case of Wigginton v. Moore, 113 So. 326 , 147 Miss. 169 , the court held that the defendant in attachment, under the section of landlord and tenant, where it was necessary to employ counsel, being successful, was entitled to an attorney's fee. Rollins v. Rosenbaum, 148 So. 384 , 166 Miss. 499 . The court has so many times ruled on the question that if the instructions taken as a whole, are construed together, announce the correct rule of law, that is all that is required. Friedman v. Allen, 118 So. 828 ; Bass v. Burnett, 119 So. 827 ; Landrum v. Ellington, 120 So. 444 ; Carlisle v. Laured, 124 So. 786 ; Hines Lbr. Co. v. Dickison, 125 So. 93 ; Waddle v. Southerland, 126 So. 201 ; Hammond v. Morris, 126 So. 906 ; Y. M.V. v. Nelley, 131 So. 101 ; Westerfield Weeks v. Callott, 120 So. 153 ; Harris v. Sims, 124 So. 325 ; Y. M.V. v. Wade, 139 So. 403 . The jury was warranted in finding for the appellee. Tarver v. Lindsey, 137 So. 93 , 160 Miss. 379 ; Tyson v. Utterback, 122 So. 496 , 154 Miss. 381 ; Stanley v. Stevens, 122 So. 755 , 153 Miss. 809 ; Hercules Powder Co. v. Calcote, 138 So. 583 , 161 Miss. 860 ; Y. M.V. v. Green, 147 So. 333 .

Opinion of the Court

*266 Griffith, J.,

delivered the opinion of the court.

Appellee rented from appellant a store building, including showcase, cash stand, and some other such equipment belonging to the store building and suitable to the operation of a grocery business. Appellee sublet the entire of the leased property to a corporation which thereupon engaged in business therein and therewith. Some time later, appellant sued out an attachment against appellee for rent not due but to become due; and, in obedience to the command of the writ “to distrain the goods and’ chattels of the tenant,” the officer took charge of the store building and the equipment mentioned and locked up the building with its contents. About midday on the next day, appellant released the attachment and it is not now controverted that the attachment was wrongfully sued out.

The entire of the leased premises and equipment had been sublet to the subtenant corporation, as already mentioned, and all the goods levied on belonged to the corporation. Nothing belonging, at the time, to appellee was levied upon. Nevertheless, appellee, jointly with the corporation, thereafter filed his declaration for damages for the wrongful suing out of the attachment. Later the corporation moved that the declaration be dismissed so far as it was concerned as a party thereto, which motion was sustained and the case proceeded with appellee as the sole claimant of damages. The jury returned a verdict for the appellee for one hundred twenty-five dollars attorney’s fees, judgment was entered ac *267 cordingly, and the case has been appealed, presenting the sole question whether attorney’s fees were, properly recoverable by appellee.

We think the case is ruled by Tebo v. Betancourt, 73 Miss. 868, 19 So. 833, 55 Am. St. Rep. 573, which held that a defendant in attachment, who owned none of the property levied upon under the attachment, cannot maintain a demand for damages on account of the wrongful suing out or levying of the attachment. So in this case, as already stated, none of the property levied on belonged to appellee; he owned none of the goods, and all the present leasehold interest in the leased property belong to the subtenant corporation, and when the subtenant corporation dismissed itself as to any claim for damages, the entire of any maintainable claim went out with it.

Appellee insists, however, that he had such an obligation in respect to, or interest in, the lease as to enable him to maintain his demand for the damages aforesaid. There was no injury to the freehold; the only injury done in respect to the leased premises was an interference with its possession. There is no implied warranty by the landlord of peaceable possession against unlawful seizures, or levies or trespasses, unless the landlord is a participant therein (Surget v. Arighi, 11 Smedes & M. 87, 49 Am. Dec. 46), and there is no intimation in this record that appellee had given his subtenant any express warranty or obligatory assurance against such wrongs on the part of others. So far as concerns the possession and use of leased premises, the lease operates as a demise or conveyance of the property for a specified period of time (Rich v. Swalm, 161 Miss. 505, 516, 137 So. 325), and no right of possession or use remains in the lessor unless expressly reserved, and no such appears in this case. The rule of law, therefore, logically follows and is well established that the landlord cannot maintain an action for *268 an injury to the possession, as distinguished from the freehold, the right to sue being in the tenant. 35 C. J., p. 1212.

Reversed and judgment here for appellant.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.