87 So. 669 | Miss. | 1921
delivered the opinion of the court.
The state revenue agent filed a bill in the chancery court, alleging that his predecessor in office had caused a back assessment to be made against the appellant for the years 1909 to 1914, both inclusive, and that the tax assessor made the said assessment for thirty thousand dollars, for each of said years, and certified the same to the board of supervisors, and that the board of supervisors disallowed said assessment, and an appeal was taken to the circuit court, and that the said court approved the said back assessment at the valuation of thirty thousand dollars, for each of said years. A copy of the judgment of the circuit court was -made an exhibit to the bill. He further alleged that for the year 1909 the state tax levy was six mills on the dollar, and that the state taxes amounted to one hundred eighty dollars for said year; that for the year 1910 the state tax levy was six mills on the dollar, and amounted to one hundred eighty dollars and for each of the subsequent years the state tax levy was the same, and the
It was'further alleged that the defendant, the appellant here, did. not own personal property, and never had any assets other than land, and that said defendant had sold a great part of its land, and that the remaining land was then in demand, and that the complainant is advised that the defendant is offering all of its land, constituting the whole of its remaining assets, for sale for the purpose of applying the proceeds of the sale to the payment of dividends among its stockholders so as to place its property and effects beyond the reach of its creditors and especially the state of Mississippi, the county of Washington, and the Mississippi levee district, which bodies the revenue agent claims to have represented in his official capacity, and alleged that if said sales were permitted said corporation would become insolvent, and prayed for an injunction, restraining the defendant from selling its lands, and that a notice lis pendens be filed so as tó become a lien upon the property, and also prayed for a personal decree against the defendant for the above-stated amount and for general relief.
Upon this bill an injunction was issued, restraining the defendant from selling its property. The defendant answered, denying that complainant’s predecessor, the state revenue agent, had assessed it for taxes due the state of Mississippi, the county of Washington, and the Mississippi levee district for the said years, and denied that any as
The original papers during the progress of the chancery suit were lost, and a proceeding was undertaken in the circuit court to restore the record under the provisions of section 3173, Code of 1906 (section 2514, Hemingway’s Code). The revenue agent answered this petition to restore, setting forth in the answer certain features of the petition which were alleged to be incorrect, and also alleging that the heirs of J. C. Johnston, the former revenue agent who had died subsequent to the said assessment, were interested in the result of the suit to the extent of his commissions, and should be made parties. It was also alleged that Washington county and the Mississippi levee district were parties interested, and should be made parties defendant to the petition to restore the record. The revenue agent was given eleven days’ notice of the petition to restore by summons, and objected to proceeding Avith the trial to restore the record at that term for the
The defendant did not seek to make its answer a cross-bill, and have 'the judgment of the circuit court making its assessment against it enjoined and canceled as being-void ab initio; nor did it seek in this proceeding, to show the contents of the papers which were lost by secondary evidence. It is contended by the appellant that the action of the judge of the supreme court in granting an appeal with supersedeas is void, and that the record sought to be introduced is validly established by the judgment of the circuit court, and that no appeal lies from the order of the circuit court re-establishing the record, but, if an appeal does lie from said order, that still it is admissible in evi-
We are not advised what reasons were announced by' the chancellor for his decree, nor what his opinion was as to the various questions that arise in the case. At the threshold of the appellant’s case is the question as to whether the record re-established by the circuit court from which an appeal was prosecuted with supersedeas is admissible in evidence in this case. We are not impressed with the argument that a judge of the supreme court has no power to grant an appeal or to grant a supersedeas. The statute expressly empowers the judges to grant such appeals, and also the power to grant supersedeas. Section 4908, Code of 1906 (section 3186, Hemingway’s Code). The appeal and the supersedeas are directly pertaining to the jurisdiction of this court, because judgment having been rendered and an appeal lying from final judgments of the circuit and chancery courts. 84 Cyc. 610, and authorities cited.
The next question is, What effect does a supersedeas have upon the judgment superseded? Is a judgment superseded a thing that can be used either in attack or defense?
Bouvier’s Law Dictionary (8th'Ed.) vol. 3, defines su-persedeas as follows: “The name of a writ containing a command to stay the proceedings at law.
“An auxiliary process designed to supersede the enforcement of the judgment of the court below, brought up by writ of error for review.”
In 8 Words & Phrases, p. 6796, it is said that:
“Whatever is done under the judgment after and while it is suspended, being done without authority from the judgment, which is then powerless, should be set aside as improperly and irregularly done.”
The effect of the supersedeas is to prevent the use of the judgment during the time it is superseded. The proceeding-lies dormant; no action can be taken which has its
“In order to establish the insolvency of the bank, the court permitted the state to introduce in evidence, over the objections of defendant, the record of a judgment rendered by the circuit court against the bank for nine thousand three hundred twenty-two dollars and twenty-five cents in favor of the Bank of Winona.
“The record shows that, at the time the record of the judgment was introduced in evidence, the bank against wrhich it had been rendered had perfected its appeal from the said judgment, and the appeal was then pending in this court. The judgment having been appealed from, the record of same was not evidence tending to show.that the claim on which it was based was in fact a liability of the bank of which the appellant was cashier. The introduction of the judgment was error.”
This being true, it was not permissible to introduce the re-established record pending an appeal with supersedeas, and the judgment of the circuit court, being a court of general jurisdiction, carries with it verity as to its recitals of. jurisdictional matters. Looking at the record before us in the light of these principles, the chancellor was correct in rendering the judgment. We do not deem it necessary now to decide what effect this record would have had upon the judgment had-no appeal been prosecuted. It is unnecessary in this regard to decide the other questions presented, and the judgment is affirmed.
Affirmed.