Whittaker v. Goodwin

Citations

• 97 Miss. 663
• 53 So. 413

Syllabus

<p>1. Replevin. Alternative judgment. Value of property. Mortgagee. Amount of debt. Proof.</p> <p>Where in replevin by a chattel mortgagee, or by a trustee in a deed of trust to secure a debt, the plaintiff is entitled to recover, it is error to render judgment against defendant and the sureties on his replevin bond for the amount of the mortgage debt and interest, without proof of the value of the property; proper procedure in such ease requires proof of both the amount of the debt and of the value of the property, and, on a verdict for plaintiff so finding, judgment should be rendered against defendant and his sureties for delivery of the property on the payment of the smaller, of the two amounts found, with costs.</p> <p>2. Same. Supreme court practice. Reversal for failure to prove value.</p> <p>The reversal of a judgment for plaintiff in replevin alone because the verdict of which it was predicated failed to find the value of the property sued for, does not entitle the defendant to a new trial, but awards a writ of inquiry to ascertain value.</p> <p>3. Continuance. Civil 'case. Absence of defendant. Custody.</p> <p>Where the defendant in a civil case was a prisoner on the county convict farm and was not brought to court under an order previously made directing the officer having him in custody to have him present, the cause should be postponed in order that defendant might be at the trial upon a showing by his attorney that he had a good defense and was a material witness in his own behalf. ■</p> <p>Í. Stenographer’s Report oe Evidence. Filed out of time. Waiver. Supreme court practice.</p> <p>An objection that the stenographer’s report of the testimony was authenticated and filed out of time, cannot be made for the first time on suggestion of error; it should be raised by motion to strike from the record before the case is submitted.</p>