The clarion. [volume] (Jackson, Miss.) 1883-1888, 1883-03-21
SUPREME COURT REPORTS.
October Term, 1882,
REPORTED WEEKLY by RoBr; snorwELI
ErTRINGHAM
VS..
HANDY.


HANDY.
Appeal and cross-appeal from the Cir
cult Court Of Adams county, Hon..
Ralph North, Judge.
Birmingham brought replevin against
the N. J. q G. Railroad company for cot
ton, which was taken under the writ and
delivered to him upon the execution OF
bond as required, and the defendant
made affidavit as provided kor by z 1918,
Code 1880, showing that Charles Handy
claimed the cotton and asked that he be
summoned as provided for by that sec
ton, On the same day when the aiiida-
Wit Of the defendant was made, Handy
made oath Of his claim to the cotton and
filed it i'll accordance with I 2628of Code
1880. The court did not make an order
for Handy to be summoned, nor was an
order made allowing him to make him.
self defendant in the action instead Of
| the original defendant. The only order
made by the court was for the continu-
| ing Of the case with leave TO the defen-
dant to plead and make the proper issue
in vacation. AT the next term Of the
court Judgment by default was given
against birmingham for want Of a plea
BY him and in favorof Handy Ettring-
| ham asked to plead and make an issue
/ Immediately, but this was denied, and he
assigns for error this action Of the court.
/ In execucting the writ Of inquiry tol-
4 lowing the judgment he had thus OBJ
tained, Handy offered evidence to show
that Ettringham had taken the cotsor
by his writ Of repleyin under cir
cumstances emitting Handy TO puni
tive damages, consisting Of lawyers
fees and other items incident L
his suit to recover his cotton, but tht
court rejected this evidence and Handy
appealed and complains Of this ruling
1t is objected further that Handy die
not file i bill Of particulars Of his CLAIM
for damages.
! Martin & Lanneau and T. O. Bake
/ and Frank Johnston for appellant.
Calhoon g. Green, contra.
CAMPBELL, g. j.,
: EEeld
/. Section 1878 Code 1880, provide
}. for the bringing in third person VIII
q NAV take the place of the original d.
I fendant, and contest with the plaintiff
1 On the appearance and application
such third person he IL to be allowed
I make himself defendant instead {
9 the original defendant. lie become
9 such on his own application by leave (
!, the court. Handy might have become
defendant instead Of the original defer
3 dant. but he did not seek to be.
4 2. Handy made his claim, as he ha
y 4 risht 10 do, under \ 1928 Of the Cod
d which entities third person claimir
d goods taken under n writ OF rcpleyin
4 propound his claim, and after an adj
I dication Al to the subject Of the actic
q between the original parties to conte
e with the successful party as to the goo'
Il thus claimed under I 262S 1t seq, the
u must be an adjudication between u
original parties, after which an issue
to be made between the successful part
IN and the claimant who then bccom
~ plaintiff in the contest with the vict
II In the first action.
,e, 3. The n. ]. & G. II. r. Co., was st
er a defendant Notwithstanding the afid
ke VII made. The action was pending a
Y. nndisposed or. The original defenda
e. was not discharged from it, and the
ng ouirement Of an issue to be made up
Se, tween Handy and the defendant Il v
m premature. ,Ettringham was not in I
nd fault and the court erred in renderi
TO Judgment against him.
"a. 4. The court erred in excluding
'el evidence offered by Handy 10 show wi
in he offered TO show To entitle him
damages for the wrongful taking Of
cotton. The attitude of person clai
inp AZ Handy did when the Issue
~. made up between him and the success
~ party in the action is that Of plain
In repleyin suit with all the rig
" of SUCH
hn B. IL ii not necessary to hle bill
ns -. particulars with the declaration IN
e wv plevin in order to recover damages
M the wrongful taking and detentl
~ na Code, 1880, 2 26, Is, 2622, Both ju
y; ments reversed and cause remanded.
Ito be reported.l