Griffin Et Ux v. Brinson
Griffin Et Ux v. Brinson
Opinion of the Court
The sole question here presented is whether the judgment is a nullity because the verdict failed to comply with the statute. The appellants contend that, under Section 2861, Code of 1942, Recompiled, they should have had the option either (1) of restoring the property, or (2) paying the value therefor as fixed by the jury.
The following portion of Section 2861, Code of 1942, Recompiled, governs in this cause: “If the verdict be for the defendant, and the plaintiff has given bond for the property, the judgment shall be against the plaintiff and the sureties on his bond that they restore to the defendant the property, if to be had, or pay to him the value thereof and the damages for the wrongful suing out of the writ as assessed * * (Emphasis supplied.)
In the early case of Spratley v. Kitchens, 55 Miss. 578, where the verdict failed to find the separate values of the several cattle, the judgment was reversed for a writ of inquiry to ascertain the values of the cattle separately, but was not disturbed in any other respect.
In Whittaker v. Goodwin, 97 Miss. 663, 53 So. 413, where the verdict failed to find the value of the property sued for, the cause was reversed and remanded. But, on Suggestion of Error, it was held that the reversal did “not result in a new trial.” The case was remanded “for the purpose alone of awarding a writ of inquiry to assess the value of the property and the rendition of the proper judgment on the verdict of the jury in response to such writ.” The opinion cited Rushing v. Rushing, 52 Miss. 329, and Spratley v. Kitchens, supra.
In Oppenheimer v. Telhiard, 123 Miss. Ill, 85 So. 134, the jury did not, in their verdict, value the articles separately. Because the officer’s return did not list the value of the articles separately but showed a total valuation of the articles at $175, the court peremptorily instructed the jury that, if they found for the plaintiff, they should assess the value of the furniture at $175. This Court held that the giving of that instruction was error. However, it affirmed the right of the appellee to recover the property, but reversed for the proper valuation of the various articles of furniture upon proper writ of inquiry.
In like manner, in the case of Wallace v. Bramlett, 163 Miss. 44, 139 So. 627, the Court held that it was
While it is true that, in Pittman v. Eberhard Dental Supply Company, supra, the procedural order reversed and remanded the case for a new trial, the effect of that order, under the authorities prior thereto, was to require a new trial only to the extent of empaneling a jury so that it might assess the values of the several articles separately.
Consequently, the right of the appellee to recover the cow and calf and for the value of the calf, which was sold, is affirmed; but the cause is remanded so that, on a writ of inquiry, a jury may assess separately the values of the several animals, in order that, if any of them cannot be restored, the value, as fixed by the jury, may be paid in lieu of restoration.
Either of the parties could have moved the court to have the jury correct its verdict in order to comply with the statute. This Court is of the opinion that they were equally to blame for the patent error in the verdict. Of course the appellants are liable for all costs in the trial courts. But, under the circumstances, the Court is impelled to apportion the costs on this appeal equally between the parties.
Affirmed in part and remanded.
Reference
- Full Case Name
- Griffin et ux v. Brinson
- Status
- Published
- Syllabus
- 1. Replevin — judgment for defendant — writ of inquiry — jury must find value of articles separately. Under statutory provision that where verdict is for defendant in replevin action, and plaintiff has given bond for property, judgment shall be against plaintiff and the sureties on his bond that they return the property, if to be had, or pay value thereof and damages for wrongful suing out of the writ, jury must find value of the articles separately. Sec. 2861, Code 1942. 2. Appeal — replevin — judgment for defendant — cause remanded for writ of inquiry to fix value of cattle separately. Where jury found for defendant, in action to replevy cattle, but did not fix value of the cattle, cause would be remanded on writ of inquiry so that jury might assess the values of the several animals in order that if any one of them might not be restorable, value, as fixed by jury, might be paid in lieu of restoration. Sec. 2861, Code 1942. 3. Appeal — costs — apportioned equally where parties equally blamable for patent error in verdict. Where any of the parties could have moved to have jury correct its verdict in order to comply with replevin statute, but none of them did so, the parties were equally to blame for the patent error in the verdict, and costs on appeal would be apportioned equally between them. Sec. 2861, Code 1942. Headnotes as approved by Lee, J.