Opinion
No. 30348.
January 16, 1933. Suggestion of Error Overruled February 13, 1933.
1. JUDGMENT.
In replevin action, plaintiff could not recover more than amount sued for.
2. APPEAL AND ERROR.
Where plaintiff in replevin action recovered more than amount sued for, judgment would be reversed and rendered for amount sued for.
3. COSTS.
Where defendant's attorney dictated into record agreement that automobile was worth one hundred twenty-five dollars, thus inviting error in instruction permitting recovery of more than amount sued for, defendant would be taxed with costs of appeal.
APPEAL from circuit court of Winston county. HON. JOHN F. ALLEN, Judge.
Z.A. Brantley, of Louisville, for appellant.
The court committed serious error in undertaking to fix the value of the old car at one hundred twenty-five dollars in appellee's instruction which reads as follows: "The court instructs the jury for the plaintiff that if you find for the plaintiff the form of your verdict will be, `We the jury, find for the plaintiff and assess the value of the automobile at one hundred twenty-five dollars.'"
It is true the appellant agreed to allow the appellee, Blass, the sum of one hundred twenty-five dollars for the old car in the trade and counsel representing the appellant so stated in the record, but the plaintiff in replevin must establish by evidence the value of his property as required under section 3098, Code of 1930.
The jury is the sole judge of the value of the property in question and not the court.
The plaintiff is bound by his pleading and when he files his affidavit in replevin fixing the value of the property at one hundred twenty dollars and the trial court grants an instruction telling the jury that "if you find for the plaintiff the form of your verdict will be, `we, the jury, find for the plaintiff and assess the value of the automobile at one hundred twenty-five dollars,'" which is five dollars in excess of plaintiff's pleadings in view of such error the case should be reversed and remanded for a new trial.
Rodgers Prisock, of Louisville, for appellees.
The circuit judge erred in directing the jury in fixing the value of the article seized under the attachment at a sum different from that stated in the pleadings of the parties, and for this error the judgment will be reversed and the proper judgment will be entered here.
Houston v. Smythe, 5 So. 520, 66 Miss. 118.
In assessing the value of the property involved the jury ordinarily should not award a greater amount than that stated in the pleadings and included in the issue or action, but they are not controlled by the amount stated in the affidavit required and given as a basis for obtaining an order for the delivery of the property.
34 Cyc., p. 1532, par. 2.
The verdict should not award a greater amount of damages than is demanded. But the objection is waived unless taken before entry of the judgment.
Abbot's Civil Jury Trials (3 Ed.), 767.
Appellee brought this action of replevin in the court of a justice of the peace of Winston county against appellant to recover a secondhand Ford automobile. There was a trial and judgment in that court in appellant's favor. From that judgment appellee appealed to the circuit court, where the trial resulted in a verdict and judgment in appellee's favor. From that judgment, appellant prosecutes this appeal.
The only question of sufficient seriousness to call for a discussion by the court is whether or not appellant is entitled to a reversal of the judgment and a new trial upon the ground that appellee recovered five dollars more than he sued for. The facts necessary to develop the question are as follows: Appellee in his affidavit for the writ of replevin to recover the Ford automobile fixed its price at one hundred twenty dollars. The writ of replevin following the affidavit named that sum as the value of the automobile, and the return of the officer on the writ fixed the same value. Appellant gave a forthcoming bond for the automobile in which the penalty of bond was fixed at two hundred forty dollars, double the value of the car fixed in the affidavit, the writ, and the return of the officer. The verdict of the jury, and the judgment of the court, was that appellant return the automobile to appellee, and on failure to do so appellee should have judgment against appellant and the sureties on his forthcoming bond in the sum of one hundred twenty-five dollars. The evidence showed without dispute that the automobile was of the value of one hundred twenty-five dollars. In addition, while appellee was attempting to prove the value of the automobile by the witness Caperton, appellant's attorney dictated this statement into the record, "I will agree that the car is worth one hundred twenty-five dollars."
The court instructed the jury for the appellee that if they should find a verdict in appellee's favor, they should assess the value of the automobile at one hundred twenty-five dollars. Appellant contends that the giving of this instruction was reversible error upon the principle that a plaintiff cannot recover more than he sues for in his pleading. The instruction would have been correct if the amount named in it had been one hundred twenty dollars, the amount sued for, instead of one hundred twenty-five dollars. It was error to give this instruction, and, following the course laid down in Houston v. Smythe, 66 Miss. 118, 5 So. 520, the judgment is reversed, and judgment will be entered here for one hundred twenty dollars instead of one hundred twenty-five dollars; but, nevertheless, appellant will be taxed with the costs of the appeal because of the fact that appellant invited the error of the court when his attorney dictated into the record, in order to dispense with further proof of the value of the automobile, an agreement that it was of the value of one hundred twenty-five dollars.
Reversed, and judgment here for appellee.