76 So. 730 | Miss. | 1917
delivered the opinion of the court.
Per Curiam. Affirmed.
On Suggestion oe Error.
The agreed statement of facts is as follows:
“Come the parties to the above-styled cause by their attorneys of record, and agree: That the agreed statement of facts and the judgment of the court rendered thereon shall constitute the transcript of the record in the case of the Enochs Lumber & Mfg. Company et al. v. I. C. Garber et al., appealed from the circuit court of the First district of 'Hinds county, Miss,, to the supreme court of Mississippi, and that the two documents shall be certified as such and be considered a full transcript in the supreme court of Mississippi for the consideration and final adjudication of the cause.
“Under an order pf consolidation, causes numbered 3636, 3637, and 3642, on the docket of the circuit clerk of the First district of Hinds county, Miss., were consolidated under cause No. 3637, thus making all parties in interest parties to 3637.
“Petitioners are materialmen who each severally furnished materials to I. O. Garber, a contractor, used by him in the construction of an annex to the Young Men’s Christian Association Building of Jackson, Miss. Mr. Garber’s contract-was for the sum of two thousand, five hundred eighty-six dollars. No notice was served until the balance due was reduced to six hundred seventy-three dollars and thirty-nine cents (which amount the Y. M. C. A. now tenders' into court).
*231 “Thereupon in the following order several notices were served in full compliance with section 3074, Mississippi Code of 1906, upon the Y. M. C. A. of Jackson, Miss., that-:
I. C. Garber was due Enochs Lumber &. Manufacturing Company.. $241.80
“ “ “ Jackson Lumber Company ................. 345.95
“ “ “ Bullard Brick Company 250.45
“ “ “ Ray Wright ........... 130.00
“ “ “ Central Lumber Company ................ 241.32
“ “ “ Morrison Coal Company 80.15
“ “ “ Addkison & Bauer...... 42.90
“ “ “ S. P. Cagle............ 50.00
—for materials so furnished and used.
“That I. C. Garber was adjudged bankrupt February 12, 1917, and that D. H. Holder was elected and has qualified as his trustee in bankruptcy.
“The sole controverted question is of law. Does priority of notice under section 3074, Mississippi Code 1906, vest a prior right, or are all liens under section 3072, Code 1906, concurrent?’.’
On this agreed statement of facts the circuit court held that the rights of the several parties were equal and concurrent and that they should have the pro rata .according to the amount of their claims of the fund paid' into court,- and this judgment was affirmed on a former day of this court under the theory that these rights would be governed by the provisions of section 3072 of the Code, taken in connection with section 3074. On the suggestion of error, it is insisted that this opinion was error, and that it was contrary to the doctrine of Herrin v. Mobley, 61 Miss. 509, and Spengler v. Lumber Co., 94 Miss. 780, 48 So. 966, 19 Ann. Cas. 426. In the case of Herrin v. Mobley, 61 Miss. 509, the court held that these notices of subcontractors and laborers are equivalent to garnishment, and that he who was prior in time was
Sustained.