* Corpus Juris-Cyc References: Courts, 15CJ, p. 823, n. 67. The appellant sold to the appellee an automobile, a Hudson coach, for which appellee paid partly in cash and executed in appellant's favor ten promissory notes of fifty-three dollars and fifty cents each, and one note for one hundred ninety-six dollars and sixty-five cents. The first of the ten notes was due April 20, 1926, and the others were due on the 20th day of each month thereafter. The appellee took possession of the said automobile, and on the 20th day of April paid the first installment due thereon. Two more of said notes thereafter became due, but were not paid; whereupon appellant, exercising his right under the contract, declared the whole amount due and payable at once.
On the 28th day of August, 1926, the appellant filed his suit in the circuit court of the Second district of Jones county, Miss., against the appellee for the balance of the unpaid purchase price of the automobile, claiming a purchase-money lien on said automobile, and prayed for a *Page 71 writ of seizure for said car. After the sheriff had taken possession of the car, the appellant and the appellee entered into an agreement whereby it was agreed that the sheriff should let the appellee, Robinson, have possession of the car, and the appellee agreed to pay all of the past-due notes.
It was further agreed that the suit would not be dismissed, but remain pending, and if the appellee paid the past-due notes, that the suit would then be dismissed, but if he failed to pay them on or before the ensuing term of court, the case would be proceeded with and the car sold at public sale. The appellee was then given possession of the car, but thereafter, failing to comply with the agreement to pay the amounts due, he surrendered the automobile to the sheriff.
On November 23d, during the term of circuit court, judgment by default was taken against the defendant, appellee here, which judgment was afterwards set aside by a motion; thereupon appellee filed a plea of the general issue and then a special plea, setting up certain payments. Later, the appellee filed a plea to the jurisdiction of the court, wherein he alleged that the court did not have jurisdiction of the case because the automobile had been released to him by the agreement of the parties. A plea of breach of warranty was then filed by the appellant interposed a demurrer to the plea to the jurisdiction, and also to the plea of a breach of warranty. The demurrer was overruled, after which issue was joined on the pleas and the case proceeded to trial.
The appellant introduced evidence showing the amount of the debt due and unpaid, and evidence of the agreement between the appellant and appellee as to the temporary possession of the car pending the suit, and rested its case; whereupon the appellee moved the court to exclude all the testimony offered by the appellant and to direct the jury to render a verdict for him, which motion was sustained. *Page 72
We think the court erred in sustaining this motion. Under the statute the appellant was entitled to a personal judgment, and under the agreement between appellant and appellee the suit was not to be dismissed, but was to remain pending until certain payments were made, which the evidence introduced shows was not made. We think that the intrusting of the automobile, in the seizure proceedings, to appellee does not end the jurisdiction of the court to proceed with the case as between the appellee and appellant, nor does it affect the appellant's right thereafter to proceed with the suit. The only thing effected thereby would be to release the sheriff from liability for the car during the period in which it was in the possession of the appellee under the agreement. The judgment of the court will therefore be reversed, and the case remanded for further proceedings.
Reversed and remanded.