Armstrong v. Minkus, 47 So. 467

47 So. 467 | Miss. | 1908

Mayes, J.,

delivered the opinion of the court.

In the case of Minkus v. Armstrong, 90 Miss. 751, 44 South. 32, 12 L. R. A. (N. S.) 873, this court merely held that at the time Mrs. Minkus instituted lier suit she had no right to sue, because the suit was brought before section 2303 of the Code of 1906 became effective, and because of this the suit was dismissed without prejudice. In rendering the above decision the court was simply redeclaring the law as held in the case of Lum v. Fauntleroy, 80 Miss. 757, 32 South. 290, 92 Am. St. Rep. 620. Since the decision of this case, above referred to, the case of Lum v. Fauntleroy, has been appealed to the supreme court of the United States, and the holding of this court in that case reversed. See case of Fauntleroy v. Lum, 210 U. S. 230, 28 Sup. Ct. 641, 52 L. Ed. 1039.

Mrs. Minicus’ suit against Armstrong is founded upon a judgment recovered in Tennessee. Since the first suit was brought, section 2303 has become a part of our law, and the supreme court of the United States in the Fauntleroy case has reversed the holding of this court in the case of Lum v. Fauntleroy, and Mrs. Minkus, after all these changes in the law, for a second time has brought another suit against Mr. Armstrong on this Tennessee judgment. In the light of the decision of the supreme court of the United States, referred to above, she has the right to maintain this suit on her judgment recovered in the state of Tennessee, whatever it may have been founded upon there, and she also now has the right under section 2303 of the Code of 1906.

Affirmed.