Thornton v. Gardner

Sykes, P. J.,

delivered the opinion of the court.

The cause of this suit was the issuance of an attachment for rent by the appellant, Thornton, against his alleged tenant, Gardner (appellee), under section 2842, Code of 1906 (section 2340, Hemingway’s Code), and which relates to an attachment for rent and supplies. The alleged tenant, Gardner, replevied the hay in accordance with section 2856, Code of 1906 (section 2354, Hemingway’s Code), giving the proper bond as provided by section 2857, Code of 1906 (section 2355, Hemingway’s Code). Complying with section 2859, Code of 1906 (section 2357, Hemingway’s Code), Gardner filed his declaration in replevin. Whereupon issues were duly made up in accordance with the provisions of the Code and a verdict was returned by the jury in favor of the plaintiff in replevin, Gardner, and against the appellant, Thornton, and the sureties on his attachment bond, for the sum of one hundred fifty dollars as damages. Judgmen was entered in accordance with the verdict of the jury. From which judgment the case is here appealed.

The verdict of the jury reads as follows: “We, the jury, find for the plaintiff that he retain the property attached, to-wit: two hundred and thirteen bales of hay and about two and one-half tons of loose hay. To fifteen days loss of time thirty dollars; to fifteen days expense attending court twenty dollars; to attorney’s fees one hundred dollars; total one hundred fifty dollars.”

This verdict of the jury was in response to an instruction given plaintiff to the effect that plaintiff was entitled to recover these damages if the jury believed his testimony.

This appeal challenges the right of plaintiff to recover except nominal damages in this case. Neither by the proof nor -by the instructions of the court was the plaintiff entitled to recover anything except actual damages.

*490 It is the contention of the appellee that by virtue of section 2855, Code of 1906 (section 2353, Hemingway’s Code), since the hay was worth at least two hundred seventy dollars, then plaintiff was entitled.to recover as actual damages under this section an amount equal to the value of the hay, and that though the items of damage recovered were incorrect, since the total amount is less than the-damages provided for in this section, the appellant cannot complain.

This section reads as follows: “If any distress or seizure and sale be made under color of law for rent or supplies pretended to be due and in arrear, where, in truth, no rent or sum for supplies is due or owing to the party causing the distress or seizure to be made, then the owner of the agricultural products or other property so taken and sold, his executor or administrator, shall have remedy by action against the person in whose name or right such property was taken, his executor or administrator, and shall recover double the value of the property, with costs, or may put the bond of the plaintiff in suit to recover damages for the wrongful suing out of the writ, and shall recover therein double the value of the property, if the penalty of the bond amount to so much. ’ ’

It will be noted from a careful reading of the section that the double damages herein provided are only recoverable when the property so taken has been sold under the attachment .proceedings. The property here was not sold, but was immediately replevied by the appellee. .Consequently he is not entitled to recover the damages mentioned in this statute.

In this proceeding when the hay was replevied by the appellee, it then for the first time became a suit. Barlow v. Serio, 129 Miss. 432 , 91 So. 573 .

The measure of damages in this case then becomes the same as in any other replevin suit.

*491 Where there is no evidence from which the jury might infer fraud, malice, oppression, or willful wrong’, then no attorney’s fee is recoverable. Cowden v. Lockridge, 60 Miss. 385 ; Carraway v. Wallace (Miss.), 17 So. 930 ; Taylor v. Morton, 61 Miss. 24 .

. The measure of damages in a case of this kind, where a plaintiff has sustained no damages because of the deprivation of the use of his property, would be the interest on the value of the property during the time he was deprived of its possession. Plaintiff is not entitled to recover either the loss of time or the expense in attending court. This question is also decided in the case of Taylor v. Morton, supra, wherein the court held that it was error to instruct the jury that plaintiff in a replevin suit was entitled to recover for the value of his lost time in prosecuting his claim.

The plaintiff in this case is only entitled to recover nominal damages, which we will place at the sum of one dollar that is in addition, of course, to the adjudication of his right to retain his property.

The judgment of the lower court is also erroneous in going against the sureties on the attachment bond. The proper judgment to be entered in this case was in accordance,, with section 2865, Code of 1906 (section 2363, Hemingway’s Code). This judgment is alone against the principal with the right to an issuance of a scire facias to the.sureties as therein provided.

The judgment of the lower court is reversed, and a proper judgment in favor of the appellee will be entered here in accordance with this information.

jReversed and judgment here.