Ettringham v. Handy

Citations

• 60 Miss. 334

Syllabus

<p>1. REPLEVIN. Interpleader invoked. Claim filed. Seats. 157S and 8628, Code 1880. Case in ¡judgment.</p> <p>The defendant in an action of replevin made affidavit, as provided for by sect. 1578 of the Code, that H. claimed the property in controversy, and asked that he be summoned, as provided in that section, to defend the action. The court made no order for H. to be summoned, and none making him defendant, instead of the N., J. & O. R. R. Co., the original defendant. But H. made “ oath of his claim ” to the property and filed it, in accordance with sect. 2628 of the Code. An order was made continuing the case, with leave to the defendant to plead in vacation. At the next term of the court a judgment by default was rendered against E., the original plaintiff, and in favor of H.; and the former appealed. In executing the writ of inquiry upon his judgment, H. offered evidence to show that he was entitled to recover as punitive damages, lawyers’ fees, and other items of expenditure; but the court rejected the evidence, and H. took a cross-appeal. Held, that the court below erred in rendering judgment by default against E., because no issue could properly have been made between him and H.; and the court also erred in rejecting the evidence offered by H. to show that he was entitled to damages against E. for the wrongful taking of his property.</p> <p>2. Same. Affidavit under sect. 1578, Code 1880. Effect as to claimant.</p> <p>Sect. 1578 of the Oode of 1880 provides that upon the affidavit of a defendant, in any action for the recovery of personal property, showing that a third person has a claim to the subject of the action, an order may be made requring such third person to appear in a reasonable time, and maintain or relinquish his claim. And it further provides that if such third person appear, he shall be allowed to make himself a defendant in the action, instead of the original defendant. The act of the original defendant does not make the third person a defenda