Boyett v. BoyettBoyett v. Boyett
Appellant contends that he was entitled to a directed verdict under the authority of Billington v. State, 140 Miss. 179, 105 So. 457; Young v. State, 137 Miss. 188, 102 So. 161, 36 A. L. R. 717; Brown v. State, 142 Miss. 104, 107 So. 381; Cutts v. State, 148 Miss. 593, 114 So. 389.
On the evidence this is a very different case from any of those cited abоve. We have here, in addition to large quantities of empty bottles found around appellant‘s place of business, with the same labels as those seized in this case, the undisputed fact that the liquid seized contained eighty-five per cent. of alcohol, and, when drunk to excess, would intoxicate; and that appellant hаd pleaded guilty to the same charge in the court of the mayor of Morton, and that the foundation of that charge was the possession of the same bottles of liquid which is the foundation of the charge in the present case. We think the evidence was ample to go to the jury on the question of whether or not apрellant possessed this “imitation of essence of allspice” for the purpose, in good faith, of selling it for household purposes, or for human beverage.
We see no merit in the other contentions of appellant.
Affirmed.
Argued orally by Cowles Horton, for appellant, and J. W. Conger, for appellee.
ANDERSON, J. The appellant went to Chicаgo about the 1st of November, 1926. The appellee, as we understand the record, never finally refused to go to appellant in Chicago, and make her home there with him, until about the 1st of June, 1927. During that period of seven months it was the duty of appellant to support appellee and their child. The chancellor found, in his decree, that fifteen dollars per month would be a reasonable amount to require appellant to furnish appellee for her support, and twеlve dollars and fifty cents per month for the support of their child.
We see no reason why the decree of the chancellor should have been different except as to the maintenance of appellee after June 1, 1927. After the 1st of June, 1927, under the evidence in this case, appellee was entirely without justification in refusing to join her husband and make her home with him in Chicago. Her excuse was that she did not love him, and preferred to live in Mississippi. Under the law, after that refusal on her
It follows from these views that the decree of the chanсellor is affirmed, so far as the allowance for the support of the child is concerned, and for appellee‘s support for the seven months beginning November, 1926, and ending with the month of May, 1927; but the decree is reversed as to any allowance to appellee after the latter date.
Decree will therеfore be entered here against appellant in accordance with this opinion.
Affirmed in part and reversed in part, and decree here.
Affirmed and reversed.
ON SUGGESTION OF ERROR.
ETHRIDGE, P. J. In the suggestion of error filed, the appellant insists that the decision in this case is in conflict with the case of Rawlings v. Rawlings, 121 Miss. 140, 83 So. 146, 7 A. L. R. 1259.
We are of the opinion that the present case is distinguished from the Rawlings case, supra, in many respects. In order to fully set forth the distinctions it will be necessary to make a more detailed statement of the facts with reference to the origin of that suit.
Mrs. Goldy Boyett filed her bill in the chancery court, setting forth that W. C. Boyett is a nonresident of the state, living in the city of Chicago, Ill., and is employed by the Illinois Central Railroad Company, a railroad corporation doing business in Mississippi, and that the said railroad company is indebted to him for money due for labor, and money will become due hereafter. She also alleged that, although Boyett was a nonresident, he was, at the time of the filing of the bill, within the jurisdiction of the court, and that personal service could be had upon him, and the bill was filеd, and such service obtained, and the railroad company was also served as a defendant.
Thereafter Boyett filed his answer in the chancery court, nоt pleading the want of jurisdiction in the court
The bill filed by the complainant is authorized by sections 307 and 308 of Hemingway‘s Cоde 1927, sections 536 and 537, Code of 1906. Under these sections, a resident of the state of Mississippi can file a suit in chancery, and impound debts or property belonging to a nonresident defendant. This is a statutory jurisdiction, and does not come under the general equity jurisdiction conferred by the Constitution; and it has been sustained as being constitutional.
Another distinction is that the suit of Rawlings v. Rawlings, supra, was filed by a child against its parent, asserting its own right against the parent for a support, and seeking a judgment against the parent for that purpose. The сourt held that the child had no right or capacity to maintain the suit against the parent.
In the present suit the wife files a bill for her own support, and also for an allowance for the support of her infant child, less than three years of age at the time of filing suit, and the child has remained in her custody from the time the father went to Chiсago to obtain work.
By
By express provision of statute, husband and wife may sue each other.
In Watts v. Smylie, 116 Miss. 12, 76 So. 684, it was held that the father‘s duty was to support his minor child; it was also held that, in the absence of such support by the father, it devolved upon the mother to support the child, but that she is not primarily liable therefor. See Lee v. Lee, 135 Miss. 865, 101 So. 345.
By
As stated above, no pleа was filed as to the jurisdiction of the chancery court to entertain any part of the present
A child of the age of the one involvеd in this suit would not be taken from the custody of the mother, except for grave misconduct on her part, rendering her entirely unfit to have the care and custody of the child. No proceeding, however, was taken by the husband to obtain custody of the child; but his whole defense was to avoid the payment of the money adjudged against him.
The reporter will officially report both this opinion and the one first rendered.
The suggestion of error will therefore be overruled.
Suggestion of error overruled.