Oates v. McSwain
Oates v. McSwain
Opinion of the Court
For purposes of this decision, these two cases are consolidated. In No. 39,934, on August 17, 1954, appellant-trustee O. M. Oates filed an affidavit in replevin in the Circuit Court of the Second Judicial District of Jasper County. It recited that the described property was covered by a deed of trust, under which the affiant as plaintiff was trustee. The deed of trust, an exhibit to the declaration, describes the livestock substantially as hereinafter quoted, and states that the animals are located on appellee’s farm at a stated place, and that it covers all property of like kind and class and its increase within twelve months owned by grantor and located on said land. The affidavit further stated that the property was unlawfully detained by appellee McSwain, and that affiant was legally entitled to its immediate possession. It described the property as follows: “22, Red Pole, White Face Grade, 19 to 23 months old male cows each valued
A writ of replevin was issued, and the sheriff’s return reflects that service of it was had upon McSwain, and that the sheriff seized 14 cattle described in the manner quoted above “which property was pointed out to me by Stone D. McSwain as the available property. ..” McSwain made no bond, so the trustee made bond and took possession of the property.
On February 28, -1955, appellee moved to quash the affidavit and writ of replevin, alleging that they do not charge that defendant is in possession of the property, do not describe the property, and do not set out the value of each article, as required by Miss. Code of 1942, Sec. 2841. The circuit court sustained this motion, and from that action appellant-trustee has appealed.
A somewhat similar procedure occurred in Cause.No. 39,933. On January 15,1955, which was about five months after the affidavit and replevin was filed in Cause No.
A writ of replevin was issued, and the sheriff’s return shows that under the writ he took possession of 30 described cattle, and McSwain entered into bond to retain their possession. Appellee-defendant moved to quash
Code of 1942, Sec. 2841, provides that the affidavit must state that the property is in the possession of the defendant. Sec. 2842 sets forth a statutory form of affidavit, which recites that the property is “wrongfully detained” by a defendant and that affiant is legally entitled to the immediate possession thereof. The affidavit in Cause No. 39,934 amply follows the statutory form of Code Sec. 2842. It must be read along with Sec. 2841. The word “detain” means to hold in custody and possession. The affidavit, following Sec. 2842, charges that the property is “unlawfully detained” by McSwain. This is a compliance with the requirement of these statutes. The later affidavit in Cause No. 39,933 expressly charges that the cattle are in the possession of McSwain.
Appellee contends that the affidavits in both of these causes do not set out the value of each article as required by Code Section 2841, which requires that the affidavit set forth “the value thereof, giving the value of each separate article.” However, the quoted descriptions are manifestly a compliance with Sec. 2841 in this respect. They give the value of each type of livestock, and then give the total value of all of the property covered.
Lastly, appellee asserts that the descriptions in the two affidavits are insufficient to properly identify the property. The purposes of a description are to enable the officer serving the writ to identify the property, to let the defendant know what property he is charged with detaining, and to enable the court to make an award of the property. We think that the descriptions in the affidavits and writs are sufficient. Both refer to the location of the cattle and to the deed of trust and its recorded book and page. No. 39,934 describes the
For these reasons the circuit court was in error in susstaining the motions to quash the affidavits and writs of replevin in both No. 39,933 and No 39,934 so these cases are reversed and remanded for further proceedings consistent with this opinion.
Reversed and remanded.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.