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  • R.M. Kelly, of Vicksburg, for appellant. If it should become manifest during the progress of a trial that a court for any cause was without jurisdiction, the presiding judge should so decide and dismiss the case. Ball, Brown Co. v. Sledge, 82 Miss. 749, 35 So. 447. The value of the property sought to be replevied is the test of the jurisdiction where the suit should be brought. Towns v. Boarman, 23 Miss. 186; Maxey v. White, 53 Miss. 80. Plaintiff must have the right to immediate possession of the property, replevin being a possessory action. Scarborough v. Lucas, 119 Miss. 128, 80 So. 521; Bell v. Smith, 155 Miss. 227, 124 So. 331. The plaintiff in replevin has the burden of showing right to immediate possession of the property. Scarborough v. Lucas, supra; Bell v. Smith, supra. As a general rule a defendant in a replevin action may interpose any defense which questions the plaintiff's title or right to possession, or upholds his own taking or unlawful detention. Thus he may interpose the defense of an equitable lien on the property and have the cause transferred to a court of equity for a determination of the issue. And where he asserts ownership and right of possession existing from a time prior to the commencement of the action he may show any source of title whether derived from the plaintiff or not. 46 Am. Jur. 36, Sec. 60. See also Frederic v. Merchants Marine Bank, 200 Miss. 755, 28 So.2d 843; Campbell v. Brooks, 93 Miss. 853, 47 So. 545, 20 L.R.A. (N.S.) 507, 17 Am. Cas. 1017; Buck v. Brian, 2 How. (3 Miss.) 874; Shoemake v. Federal Credit Co., 188 Miss. 683, 192 So. 561; 29 Am. Jur. 346, Sec. 424. "Not guilty" is the only plea permissable in an action of replevin, and an action of replevin puts in issue all the material facts of the case. Porter Hardware Co. v. Peacock, 129 Miss. 129, 91 So. 856; Munn v. Potter, 111 Miss. 180, 71 So. 315; Hogan v. Commercial Credit Co., 150 Miss. 653, 116 So. 298. Replevin will not lie in this case. This case should be brought in the equity court. Jackson Bank v. Williams, 77 Miss. 398, 26 So. 965; Frederic et al. v. Merchants Marine Bank, supra; 37 C.J. 403, subsec. 3; 33 Am. Jur. 419, Sec. 2; 3 Words Phrases 128, liens. John H. Culkin and George Chaney, both of Vicksburg, for appellee. The value of the property is the test of jurisdiction in actions of replevin; but, as value is only a question of estimation, varying as the individual judgments of men may differ, the valuation fixed by the pleadings is primarily accepted as true. It is also true that the jurisdiction of the court thus acquired may be defeated, and the plaintiff non-suited in consequence; but, in order to do this, conflicting testimony as to the value of the property involved is not sufficient. The proof must go further and show that the valuation was knowingly and purposely falsely magnified or diminished in order to avoid the constitutional limitation of jurisdiction. The plaintiff, appellee here, is entitled to place any nominal value on the policies, and when done, no one can impeach the value in the absence of actual fraud. Ball, Brown Co. v. Sledge, 82 Miss. 749, 35 So. 447; Biddle v. Paine, 74 Miss. 494, 21 So. 250; Fenn v. Harrington, 54 Miss. 733. The person who contracts for a policy and pays the premiums is entitled to its possession, especially where he is the person insured and has reserved the right to change the beneficiary, and has not by gift or otherwise parted with the right of possession. He may maintain his right to such possession by appropriate action, and his motives in seeking to recover the policy are immaterial. Geary v. Geary (Pa.), 12 A.2d 23; C.I.T. Corporation v. Flint, 333 Pa. 350, 356, 357, 5 A.2d 126, 121 A.L.R. 1022; Bowers v. Parker, 58 N.H. 565; Carpenter v. Carpenter, 116 N.E. 494; John Hancock Mutual Life Ins. Co. v. Bedford (R.I.), 89 A. 154; Couch, Cyclopedia of Insurance, p. 904, Sec. 322, p. 1038, Sec. 351.
Judges
  • Roberds, J., delivered the opinion of the court.
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  • R.M. Kelly, of Vicksburg, for appellant. If it should become manifest during the progress of a trial that a court for any cause was without jurisdiction, the presiding judge should so decide and dismiss the case. Ball, Brown Co. v. Sledge, 82 Miss. 749, 35 So. 447. The value of the property sought to be replevied is the test of the jurisdiction where the suit should be brought. Towns v. Boarman, 23 Miss. 186; Maxey v. White, 53 Miss. 80. Plaintiff must have the right to immediate possession of the property, replevin being a possessory action. Scarborough v. Lucas, 119 Miss. 128, 80 So. 521; Bell v. Smith, 155 Miss. 227, 124 So. 331. The plaintiff in replevin has the burden of showing right to immediate possession of the property. Scarborough v. Lucas, supra; Bell v. Smith, supra. As a general rule a defendant in a replevin action may interpose any defense which questions the plaintiff's title or right to possession, or upholds his own taking or unlawful detention. Thus he may interpose the defense of an equitable lien on the property and have the cause transferred to a court of equity for a determination of the issue. And where he asserts ownership and right of possession existing from a time prior to the commencement of the action he may show any source of title whether derived from the plaintiff or not. 46 Am. Jur. 36, Sec. 60. See also Frederic v. Merchants Marine Bank, 200 Miss. 755, 28 So.2d 843; Campbell v. Brooks, 93 Miss. 853, 47 So. 545, 20 L.R.A. (N.S.) 507, 17 Am. Cas. 1017; Buck v. Brian, 2 How. (3 Miss.) 874; Shoemake v. Federal Credit Co., 188 Miss. 683, 192 So. 561; 29 Am. Jur. 346, Sec. 424. "Not guilty" is the only plea permissable in an action of replevin, and an action of replevin puts in issue all the material facts of the case. Porter Hardware Co. v. Peacock, 129 Miss. 129, 91 So. 856; Munn v. Potter, 111 Miss. 180, 71 So. 315; Hogan v. Commercial Credit Co., 150 Miss. 653, 116 So. 298. Replevin will not lie in this case. This case should be brought in the equity court. Jackson Bank v. Williams, 77 Miss. 398, 26 So. 965; Frederic et al. v. Merchants Marine Bank, supra; 37 C.J. 403, subsec. 3; 33 Am. Jur. 419, Sec. 2; 3 Words Phrases 128, liens. John H. Culkin and George Chaney, both of Vicksburg, for appellee. The value of the property is the test of jurisdiction in actions of replevin; but, as value is only a question of estimation, varying as the individual judgments of men may differ, the valuation fixed by the pleadings is primarily accepted as true. It is also true that the jurisdiction of the court thus acquired may be defeated, and the plaintiff non-suited in consequence; but, in order to do this, conflicting testimony as to the value of the property involved is not sufficient. The proof must go further and show that the valuation was knowingly and purposely falsely magnified or diminished in order to avoid the constitutional limitation of jurisdiction. The plaintiff, appellee here, is entitled to place any nominal value on the policies, and when done, no one can impeach the value in the absence of actual fraud. Ball, Brown Co. v. Sledge, 82 Miss. 749, 35 So. 447; Biddle v. Paine, 74 Miss. 494, 21 So. 250; Fenn v. Harrington, 54 Miss. 733. The person who contracts for a policy and pays the premiums is entitled to its possession, especially where he is the person insured and has reserved the right to change the beneficiary, and has not by gift or otherwise parted with the right of possession. He may maintain his right to such possession by appropriate action, and his motives in seeking to recover the policy are immaterial. Geary v. Geary (Pa.), 12 A.2d 23; C.I.T. Corporation v. Flint, 333 Pa. 350, 356, 357, 5 A.2d 126, 121 A.L.R. 1022; Bowers v. Parker, 58 N.H. 565; Carpenter v. Carpenter, 116 N.E. 494; John Hancock Mutual Life Ins. Co. v. Bedford (R.I.), 89 A. 154; Couch, Cyclopedia of Insurance, p. 904, Sec. 322, p. 1038, Sec. 351.
Judges
  • Roberds, J., delivered the opinion of the court.
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Smart Summary

VAN NORMAN v. VAN NORMAN.

1. COURTS.

Value of property involved is test of jurisdiction in replevin actions (Code 1942, secs. 1604, 2841).

2. COURTS.

Valuation stated in affidavit for writ of replevin is prima facie correct, but jurisdiction of court may be defeated and plaintiff nonsuited if proof discloses, without dispute, value beyond court's jurisdiction, especially if it be shown that low valuation was knowingly made with intention of invoking court's jurisdiction (Code 1942, secs. 1604, 2841).

3. COURTS.

County court did not have jurisdiction of replevin action for possession of life policies with cash surrender value exceeding $1,000, which was limit of county court's jurisdiction (Code 1942, secs. 1604, 2841).

Roberds, J., delivered the opinion of the court.

The parties hereto are man and wife but have lived separate and apart for a number of years, appellee, the husband, contributing, under order of the chancery court, a monthly amount in aid of support of the wife, the appellant. Five insurance policies, of the face value of $6,800 in case of death, now exist, and for a number of years have existed, on the life of the husband, payable to the wife as beneficiary. She now has, and for several years has had, these policies in her possession, paying the premiums thereon. The assured has the right to change the beneficiary. The husband instituted this action of replevin in the county court to recover from the wife the possession of these policies. She filed the usual plea of not guilty and a special motion challenging the jurisdiction of the county court. The county judge held he had no jurisdiction. The circuit judge, on appeal to that court, reversed the judgment and awarded possession of the policies to the husband. The case, therefore, involves the jurisdiction of the county court and the right of the wife to retain possession of the policies by virtue of being the beneficiary therein and of having paid the premiums thereon. We have concluded the county court had no jurisdiction, and therefore do not decide what right, if any, the wife has to retain possession of the policies, or what interest, legal or equitable, she has in such policies or the proceeds thereof, nor whether, if she has a right or an interest, it can be asserted in this replevin action.

On the question of jurisdiction, the affidavit for writ of replevin gives the value of each policy at $20. The basis for that valuation is not shown. However, the policies themselves were introduced in evidence and are before us. They disclose the cash surrender value, at the time of the trial, to have been more than $2,100 and paid-up insurance greater than $4,350. One policy had a loan against it of $600, so that both the paid-up insurance and the cash surrender value of the policies greatly exceeded one thousand dollars, which is the limit of the jurisdiction of the county court in civil actions under Section 1604, Code of 1942. It is not contended that, if the insured had possession of the policies, he could not immediately surrender them and receive in cash some $2,200, less the existing loan of $600. Therefore, the immediate cash value of the policies to the insured is much greater than the jurisdiction of the county court.

Section 2841, Code of 1942, requires the affidavit for writ of replevin to describe the property and state "the value thereof, giving the value of each separate article." The value of the property involved is the test of jurisdiction in actions in replevin. Biddle v. Paine, 74 Miss. 494, 21 So. 250; Brumfield v. Hoover, 90 Miss. 502, 43 So. 951. The Biddle case announced the further rule that, since value is usually a matter of estimation, varying as individual judgments differ, the valuation stated in the affidavit is prima facie correct, but the jurisdiction of the court may be defeated and plaintiff non-suited if the proof discloses, without dispute, the value of the property to be beyond the jurisdiction of the court, especially if it be shown that the low valuation was knowingly made with the intention to invoke the jurisdiction of the court. What then was the value of these policies for the purpose of this action? No Mississippi case directly in point has been called to our attention. In the Brumfield case, supra, the property replevied consisted of promissory notes, the face value and the actual value of which appeared to be $323. The proceeding was in the circuit court, having civil jurisdiction of amounts in excess of $200. The action was based upon a money demand of $66.66. The court held that the circuit court had jurisdiction, the value of the property sought to be replevied being greater than $200. In 65 C.J., Section 278, page 153, it is said the measure of damages for the conversion of a policy of life insurance is its market value, or "if it has no market value, its actual value to the plaintiff." In Holt v. Van Eps, 1 Dak. 206(198), 46 N.W. 689, the headnote states: "In replevin for written securities they are presumed to be worth the principal and interest indicated on their face . . ." In Lovell v. St. Louis Mutual Life Insurance Company, 111 U.S. 264, 4 S.Ct. 390, 28 L.Ed. 423, where the insurance company transferred its business to a new company, thus putting it out of its own power to fulfill its contract with the insured, the Court held that the amount to which the complainant was entitled as damages was what is known in the life insurance business as the value of the policy at the time it was surrendered, with interest. In the case at bar, the admitted surrender value of the policies is far in excess of the limit of the jurisdiction of the court. Whether, in a proper case, proof may be made of the inability of the obligor, or maker, to pay, or his release from the promise, the invalidity of the obligation, or other facts affecting the legality of the obligation or its value, are not before us. No such question is involved here.

Reversed and case dismissed for lack of jurisdiction.

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VAN NORMAN v. VAN NORMAN
(Apr 12, 1948)