The judgment of the court below was reversed on a former day, but on the coming in of a suggestion of error, that judgment was set aside, the opinion then rendered was withdrawn and the case was submitted to the Court in banc. The record discloses that Hurst purchased an automobile from the Cooley Motor Company on credit, executing several promissory notes therefor; the seller reserving title therein to the automobile until the notes were paid, with the right to repossess it on the failure of Hurst to pay the notes executed therefor. Hurst having failed to pay these notes, the appellee, the owner of the notes, sued him in replevin and obtained a judgment against him for the possession of the automobile. While the case was pending, Shoemake filed an affidavit with the clerk of the court alleging that he had a mechanics' lien on the automobile for $66.85 for having repaired it at the instance of Hurst. The prayer of the affidavit was for a "judgment in replevin under his claimants affidavit in the sum of $66.85, against the property replevied and against all bonds, the plaintiff and the defendant in the aforesaid sum, and that his claimant's affidavit be heard, and that he be dismissed without costs."
A motion by the appellee to strike this affidavit from the record was sustained. This motion alleges: "1. That the claim is for $66.85 and is for asserted unpaid repair bill for repairs of property not in possession of claimant and that said claim can not be asserted in this replevin suit. 2. That the legal rights of the claimant, if any, must be asserted in a purchase money lien suit and for the reason that the possession of the property was lost to claimant and under the law, the lienor can have no rights other than those asserted in cases in liens for purchase money of goods." *Page 689
These allegations of the motion were not denied, and the return of the officer on the writ of replevin shows that the automobile when seized by him was in Hurst's possession. Replevin is a possessory action, its gist being the right to immediate possession of property, Sec. 3079, Code of 1930, and in this State, except in cases of distress for rent, it applies only when authorized by a statute. Wheelock v. Cozzens, 6 How. 279. "The action of replevin is sui generis and governed by its own provisions, as found in the Code." Ellison v. Lewis, 57 Miss. 588. Intervention in an action at law by a third person not a party thereto was unknown to the common law, and is permissible only when authorized by a statute. Hyman v. Cameron, 46 Miss. 725; Crystal Springs Bank v. New Orleans Cattle Loan Co.,132 Miss. 52, 95 So. 520.
The question for decision then is, does Sec. 3102, Code of 1930, permit the intervention into this action of replevin here sought? That statute provides: "If a third person, not a party to the action of replevin, shall claim to be the owner or entitled to the possession of goods or chattels taken under a writ of replevin, he shall not be allowed to institute another action of replevin while the former is pending; but may make oath of his claim and file it with the officer taking the property, or, if he have delivered it to either of the parties, with the clerk of the court or justice of the peace," etc. Section 3103 et seq. provides that, after trial of the action of replevin, an issue shall be made up between the successful party and the claimant as to the validity of his claim, and the trial thereof shall be had and a judgment rendered accordingly. Except for Sec. 3102 of the Code, no intervention at all would be permissible in an action of replevin. The intervention which that section permits is to a person who "shall claim to be the owner or entitled to the possession of goods or chattels taken under a writ *Page 690 of replevin." The intervenor therefore must be a person who, under Sec. 3079 of the Code, could have himself instituted the action of replevin. The affidavit on which the appellant sought here to intervene does not allege that he is the owner of the automobile or entitled to the possession thereof but that he has a mechanics lien thereon, and prays that his lien be enforced "against the property replevied and against all bonds."
Under Sec. 2255, a mechanic has a lien on personal property repaired by him for another, and if the property is in his possession he may retain it until his charges for making the repairs have been paid, and after thirty days, without the payment thereof, may institute a suit to condemn the property therefor. Under Sec. 2257, should he part with the possession of the property, his lien thereon shall be enforced, as provided in Sec. 2243 et seq., not by regaining possession of the property but by obtaining its condemnation and sale for the payment of the charges due for repairing it. If this automobile had been wrongfully taken from the appellant's possession, he would not thereby have lost his right to its possession and would then have come within Sec. 3102. Having parted with the possession of the automobile, he simply has a lien thereon enforceable by an action at law for its sale and the application of the proceeds thereon to the payment of the charges due him for repairing it.
But, it is said that we should construe Sec. 3102 liberally and hold that one, neither the owner of, nor entitled to, possession of the property replevied but having a non-possessory lien thereon, is entitled to intervene and claim the property. To so hold would not be to construe the statute, but under the guise of construction to amend it by adding thereto after the words "entitled to the possession of" the words "or to have a lien on;" thereby making that clause of the section read as follows: "shall claim to be the owner or entitled to the possession of, or *Page 691 to have a lien on goods or chattels taken under a writ of replevin," etc. Further amendments by construction would then have to be made in the sections, prescribing character and form of judgments to be rendered in an action of replevin. The words "shall claim to be the owner or entitled to the possession of goods or chattels taken under a writ of replevin" are plain and unambiguous, and when such is the case, there is no occasion for construction, but they should be given effect according to their plain and obvious meaning.
That the lien here involved is a mechanic's lien furnishes no justification for giving Sec. 3102 a meaning not in accord with that of its words and what we are here considering — the right of one having a lien on property replevied but not the right to possession thereof to intervene in an action of replevin, — applies not only to mechanics' liens but to all non-possessory liens on personal property.
But, it is said that authority elsewhere permits the intervention of a lienor in an action of replevin, 54 C.J. 464, and Cobbey on Replevin (2 Ed.), Sec. 444. So does our statute when the lienor is entitled to the possession of the property, and, as hereinbefore pointed out, with us the right to intervention exists when, but not unless, conferred by statute, and the action of replevin is governed by the sections of the code dealing therewith. If, therefore, the statutes of other states, or the common law thereof, permits an intervention of the character here under consideration, that fact would not be of any consequence here. It would be of value only to the Legislature in determining whether to amend the statute so as to permit this character of an intervention.
An examination of 54 C.J. 464, in connection with the subject of Parties in 47 C.J., Secs. 185-226, referred to in Note 10 to 54 C.J. 464, Sec. 93, will disclose that a lienor will not be permitted to intervene in an action at law *Page 692 unless he brings "himself within the terms of the applicable statutes or within rules of law defining the right to intervene," 47 C.J. 106, Sec. 204. An examination of the cases cited in the sections of Corpus Juris and Cobbey on Replevin hereinbefore set forth will also disclose that the courts in deciding them did not intend to violate this rule.
The foregoing being the views of three members of the court, Judges McGEHEE, McGOWEN and SMITH. The judgment of the court below must be and is affirmed.