Mellini v. Duly

Calhoon, J\, delivered the opinion of the court. Duly made his affidavit in replevin for a schooner, with her anchor, sails, blocks, rigging, etc., valuing all at $150. The justice of the peace duly issued a writ of replevin and the constable levied on all, putting a value on the whole of $200. Mellini replevied all, giving bond in the sum of $400, and retained them in his possession. The justice, by consent of the parties, gave judgment for Duly that Mellini restore the schooner or pay Duly $150, and Mellini appealed to the circuit court on an appeal bond for $300, the appeal bond reciting that the judgment of the justice of the peace was “for the possession of a certain schooner, Alice P. of Biloxi, valued at $150.” So it is plain that there was no appeal, except as to the boat itself, and that at a valuation of $150, Mellini remaining in possession of all the articles replevied. The circuit court tried the case and there was a verdict for Duly for the boat alone, valued by the jury at $150. We fail to understand the contention that values showed more than $200 and therefore were in excess of jurisdiction. It is a mistake of fact. The affidavit puts the value of everything replevied at $150; the consent judgment in the justice’s court was for the boat, valued at $150; there was appeal from that only; on the circuit court trial Mr. Mellini’s counsel objected to testimony of the value of “anything seized except the boat,” and the objection was sustained; and the verdict was for the boat only, valued by the jury at $150. So it is immaterial whether instruction No. 2 for plaintiff was strictly right or not. Whether Mellini could or could not write, it was entirely competent to ask him as a witness whether he signed or executed a written contract, and whether it was nót done in duplicate, and [223] on his denying both it violated no privileged confidence to ask him whether he had not compared with his counsel in the pending trial the contract offered by plaintiff with a copy given to his counsel by him. The verdict is abundantly sustained by the evidence. Affirmed.