Summary
holding that jurisdictional question, although not raised by the appellant, was so patent that Court could not ignore it
Summary of this case from Mississippi Mun. Liability Plan v. JordanOpinion
No. 38452.
May 19, 1952.
1. Replevin — pleading — answer.
The section of the statute in the Code chapter on replevin which provides that the defendant may plead that he is not guilty does not prescribe the form of the plea and therefore an answer, under the new statutes abolishing pleas of the general issue, which answer specifically denied that plaintiff is entitled to the property was sufficient to be treated as a plea of not guilty, and this without deciding whether the defense in replevin shall be made by plea or by answer. Sec. 2859 Code 1942, Chap. 230 Laws 1948, Chap 356 Laws 1950.
2. Judgments — by default when plea on file.
A judgment by default when there is a plea on file presenting a valid defense is erroneous, and requires a reversal.
3. Replevin — affidavit of value — jurisdiction.
A proper affidavit is necessary to confer jurisdiction in replevin, and the affidavit for replevin in the circuit court must state the value of the property as being within the jurisdiction of that court, and where the element of value is entirely omitted there is no jurisdiction and the absence thereof may be raised on appeal, and by the Court of its own motion, although not mentioned by either of the parties.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Simpson County; HOMER CURRIE, Judge.
Dale Wilson, for appellant.
I. The lower court committed reversible error in awarding judgment by default against defendant at such time as defendant had on file in the cause a valid, legal and sufficient answer, filed in due term and time, and alleging payment and nil debit, which answer was undisposed of at the time of the judgment by default. Secs. 1519, 1547 Code 1942; Randall, et al. v. Gunter, 181 Miss. 332, 179 So. 362; Hambrick v. Dent, 70 Miss. 59, 11 So. 698.
Russell Little, for appellee.
Cited and discussed the following:
Secs. 1547, 2859, and Chap. 6 Code 1942; Chap. 230 Laws 1950; J.W. Bennett v. W.J. Holloway, 55 Miss. 211; Porter v. Johnson, 2 How. 736; Barker v. Justice, 41 Miss. 240; Meridian v. Trussell, 52 Miss. 711; Stewart v. Graham, 93 Miss. 251, 46 So. 245; Munn v. Potter, 111 Miss. 180, 71 So. 315; Porter Hardware Co. v. Peacock, 129 Miss. 129, 91 So. 856; Beck v. Kersh, 45 So.2d 730.
Appellee filed a circuit court suit in replevin for the recovery of certain personal property alleged to be wrongfully detained by appellant. After execution of the writ which was issued pursuant to the affidavit, appellee filed his declaration and within due time thereafter the appellant filed a detailed answer in which, among other things, he denied that appellee was entitled to immediate possession of the property. Eight days later the court gave a judgment by default against appellant and on a writ of inquiry peremptorily charged the jury to find for the plaintiff and to assess the value of the property involved.
(Hn 1) It is assigned for error that the trial court erred in entering a judgment by default while the answer was on file. In response to this, appellee contends that under Section 2859, Code of 1942, the only plea permitted in an action of replevin is "Not Guilty." This Court so held in Bennett v. Holloway, 55 Miss. 211, and Porter Hardware Co. v. Peacock, 129 Miss. 129, 91 So. 856, relied upon by appellee. It is further contended that Chapter 230, Laws of 1948, as amended by Chapter 356, Laws of 1950, abolishing pleas in the circuit court and requiring that every defense heretofore presentable by plea shall be made in an answer, has no application to actions in replevin and that consequently the answer is a nullity which may be disregarded; it is unnecessary for us to decide whether the defense in replevin shall be made by plea or by answer for the reason that the answer in this case does specifically deny that appellee is entitled to possession of the property and is sufficient to be treated as a plea of not guilty.
Section 2859 merely says that "The defendant may plead that he is not guilty of the premises charged against him, and this plea shall put in issue not only the right of the plaintiff to the possession of the property, but also the wrongful taking and detention, or wrongful detention thereof, as the case may be." The statute does not set out any required form of such a plea, and where the essentials of the plea are set out in an answer we think this is sufficient even though the answer contains surplusage as it does in this case.
With this answer on file we are of the opinion that the lower court erred in entering a judgment by default against the defendant. In the case of Randall v. Gunter, 181 Miss. 332, 335, 179 So. 362, we said: (Hn 2) "A judgment by default where there is a plea on file presenting a valid defense is erroneous." In that case eleven Mississippi authorities are cited to support the quoted announcement of the law. We conclude, therefore, that the judgment should be reversed and the cause remanded for a hearing on the merits.
Another reason why the judgment must be reversed is that the pleadings do not state any cause of action within the jurisdiction of the circuit court and on remand the pleadings should be amended before the case is heard on the merits. (Hn 3) The affidavit in replevin in this case describes the property but gives no value on any item thereof nor the value as a whole; hence it does not comply with the mandatory provisions of Sections 2841 and 2842, Code of 1942. Moreover, the writ of replevin gives no value of the property, Section 2845, Code of 1942, nor does the declaration give any value of the property. In Herrington v. Stimpson Computing Scale Co., 159 Miss. 416, 420, 131 So. 878, 879, 880, we held that "a proper affidavit is necessary to confer jurisdiction in replevin, the absence thereof can be raised for the first time on appeal." This was followed in Choctaw Culvert Machinery Co. v. McCool, 172 Miss. 1, 158 So. 796, and in Tatum v. Sciscoe, 189 Miss. 803, 199 So. 70. In the case of Ball v. Sledge, 82 Miss. 749, 35 So. 447, it was held that the affidavit, as the basis of an action of replevin, determines the jurisdiction of the court so far as it concerns the value of the property sued for, unless the plaintiff knowingly undervalued or overvalued it for jurisdictional purposes. This jurisdictional question is not raised by appellant, but it is so patent upon the face of the record before us that we cannot ignore it.
Reversed and remanded.
McGehee, C.J., and Alexander, Kyle and Holmes, JJ., concur.