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OCTOBER 02, 1985




This case presents issues involving the scope of jurisdiction and available remedies in circuit court ancillary to a replevin action now that we are under the Mississippi Rules of Civil Procedure. In the end we hold that in such an action, a claim by another party asserting a non-possessory interest in the property may be asserted within the ancillary jurisdiction of the circuit court, so long as there is a common nucleus of operative fact between such claim and the original complaint in replevin. Such party may intervene in the circuit court replevin action, even though his claim is of equitable origins.

Linnie B. Hall, while in the hospital and seriously ill, wrote a check for $6,000, drawn on her personal account, and transferred that amount to a joint account with her husband, W. C. Hall, appellant herein. The following day, May 6, 1982, Mr. Hall withdrew $5,000 from the joint account and used it, together with a loan to purchase an automobile for a total cost of $11,016.51. He had the automobile titled in his name alone.

 Three days after purchasing the automobile, Hall permitted the appellee, Gay Jetton, his wife's sister, to drive the automobile to the hospital to visit his wife Linnie Hall. Jetton never returned the automobile and eventually on September 15, 1982, Hall filed a "complaint in replevin" seeking to recover from Jetton and appellee David Corbin, at whose residence the automobile was alleged to be located.

 Hall complied with the statutory requirements for an action in replevin and Corbin and Jetton filed an answer generally denying that Hall was entitled to possession. On the same day, appellee, Marion Costello filed a motion to intervene "individually and as agent and attorney in fact for Linnie B. Hall" . In their complaint in intervention, Costello and Linnie Hall alleged that Linnie had a possessory interest in the automobile and she had permitted Costello to use and possess it during her illness. Further, they allege that W. C. Hall had fraudulently used Linnie's funds to obtain the automobile in his name only without Linnie's permission. They sought both possession and a lien in favor of Linnie Hall.

 The circuit court permitted intervention, finding

 that intervenors "claim and defense and the main action of replevin have a question of law and fact in common." Subsequently, Linnie Hall died and Costello then moved to intervene as executor of her estate, adopting the prior complaint in intervention. The court granted this motion.

 The cause proceeded to trial on the merits. During the trial Costello conceded that the estate did not claim a possessory interest in the automobile. At the conclusion of the trial, the court entered final judgment awarding possession of the automobile to W. C. Hall, but impressed upon it a lien in favor of Linnie Hall's estate in the amount of $2,050. That amount was arrived at by giving consideration to a number of factors, including W. C. Hall's payment of monthly installments on the loan and his non-use of the automobile for several months from May to October. From this judgment W. C. Hall appeals assigning as the sole error that the trial court exceeded its jurisdiction to allow Costello to intervene as executor, where he did not claim possession and awarding an equitable lien to the estate.

 The questions presented by this assignment of error are as follows: (1) is this intervention permitted under our replevin statutes, and if not, is it permitted under the Mississippi Rules of Civil Procedure (MRCP); and, (2) if the intervention is permitted, is the relief granted within the jurisdiction of the circuit court? We answer these questions in the affirmative. Prior to the adoption of the MRCP, replevin was a purely statutory procedure. The case of Myers v. Daughdrill, 141 So. 583 (Miss. 1932), held the circuit court could not "administer equity or apply principles cognizable only in equity." Also, General Motors Acceptance Corp. v. Fairley, 359 So. 2d 1386, 1388 (Miss. 1978), stated, "no provision is made under . . . (our replevin statutes) for a judgment of money, except for the wrongful taking, detention, value of a specific property or damages for wrongful swearing out of the writ." Properly understood, these holdings are premised in the view that there was no procedural mechanism available whereby the barred claims could be asserted, not that they were beyond the subject matter jurisdiction, albeit ancillary variety, of the circuit court.

 The statute provides that the third person who "claims to be the owner or entitled to the possession of goods or chattels involved in a replevin action . . . may intervene in said action and present his claim under oath." Mississippi Code Annotated, Section 11-37-149

 (1972). This Court has also held that "facts amounting to a recoupment may also allege in the answer an affirmative defense to the plaintiff's right of possession or interest in the property, but facts may not be pleaded in the answer which amount to a counterclaim to set off or establish unrelated debts or demands." Carruth v. Easterling, 247 Miss. 364, 150 So.2d 852, 853 (1963).

 When viewed against this background, it is clear that, even if we disregard Rule 24, MRCP, the circuit court's initial decision to allow Linnie Hall to intervene was proper. Linnie Hall was a third person claiming both that she was the owner of an interest in the automobile and that she was entitled to possession and she was therefore directed by statute to intervene. MCA 11-37-149 (1972). Moreover, under MCA 11-37-153, Linnie Hall's executor is permitted to revive her claim by intervention. MCA 91-7-233.

 Appellant suggests, however, that problems arise when the intervenor seeks equitable relief and when during the course of proceedings the intervenor renounces any claim to possession. Appellant argues that his motion to strike intervenor's claim for equitable relief should have been granted and once intervenor relinquished his claim to possession, he should have been dismissed from the action, citing Ferris v. Hawkins, 418 So.2d 811 (Miss. 1982). This leads to consideration of the nature of ancillary jurisdiction, now wholly unmasked by the Mississippi Rules of Civil Procedure on this matter.

 We (and every other court in the land) have long held that once a court acquired actual subject matter jurisdiction of an action, other claims (whether asserted by the one or more of the original parties or by new or intervening parties), ancillary or pendent to the original claim could also be litigated in that action even though the ancillary or pendent claim standing alone may have been beyond the court's jurisdiction. To fall within pendent or ancillary jurisdiction, the intruding claim must arise out of the same transaction or occurrence as the principal claim or, as others put it, out of a common nucleus of operative fact. The principal context in which we have recognized these notions is that where "legal claims" have been asserted in chancery court, pendent to the principal equity claim. Tideway Oil Programs, Inc. v. Serio, ...

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