Thompson v. Poe

Reed, J., delivered the opinion of the court. This is an action in replevin, brought by appellee as substituted trustee in a justice of the peace court to recover from appellant personal property included in a deed of trust. The judgment of the court of the justice of the peace was in favor of appellee. Appellant appealed to the circuit court, and the verdict and judgment in the trial there was also in favor of appellee. The affidavit and the return by the sheriff on the writ of replevin valued the personal property levied on at the total sum of one hundred and thirty-five dollars. The same valuation was given in the testimony of three witnesses for plaintiff. The verdict of the jury, rendered about seven and one-half months after the property was levied on, valued all of it at two hundred and forty dollars. Appellant contends that the verdict shows that the valuation of the property exceeded in amount the jurisdiction of the justice of the peace court, and that, therefore, the court did not have jurisdiction to finally dispose of the case. It is settled in this state that the test of the jurisdiction is the value of the property as shown by the affidavit, and is not the value of the property as found by the jury. It will be noted that the valuation made by the sheriff in his return sustained that in the affidavit. It does not appear in this case that the property was know [591] ingly undervalued for jurisdictional purposes. Johnson v. Tabor, 57 South. 365; Ball v. Sledge, 82 Miss. 749; 35 South. 447, 100 Am. St. Rep. 654; Brumfield v. Hoover, 90 Miss. 502, 43 South. 951. Appellant assigns as an error that the substitution of the trustee in the deed of trust should, by the terms of the instrument, be made under the seal of the beneficiaries therein, and that the seal, which is a scroll, does not make reference to show that it is the seal of the parties making the substitution. The scroll made in the nature of a seal is sufficient. It makes no difference whether any word was written or printed in connection with the scroll to indicate whose scroll it was. Wanzer v. Barker, 4 How. 363; Hudson v. Poindexter, 42 Miss. 304; Sharpley v. Plant, 79 Miss. 175, 28 South. 799, 89 Am. St. Rep. 588. The contention by appellant relative to the application of payments made, and to certain errors in the statement of appellee’s account, is settled by the verdict of the jury. There were conflicts in the testimony as to these questions, they were properly submitted to the jury, and their verdict thereon controls. Appellant contends that she should have been given the right to open and close the argument before the jury because the burden of proof was onier to show payments which she claims to have been made. The court’s refusal to grant her this privilege is not reversible error. In the case of Porter v. Still, 63 Miss. 357, Judge Arnold, delivering the opinion of the court, said: “If the record contains several issues, and the plaintiff holds the affimative in either, or would be obliged to produce any proof to establish his claim or demand, it would be error to deny him the right to open and close the argument to the jury.” The judgment of the circuit court, following the verdict of the jury, was in favor of appellee for the amount of two hundred thirty-two dollars and fifty-three cents. This was contrary to the decision of this court in the case of Johnson v. Tabor, supra. The appellee, how [592] ever, in his brief consents and agrees that a remittitur may be entered, reducing the judgment to one hundred and thirty-five dollars, the value of the property as appears from the writ of replevin. We do not find any error in the trial of this case. As appellee has consented to a remittitur, as stated, the same is now made, reducing the judgment to one hundred and thirty-five dollars, which is affirmed. Affirmed.