French v. State ex rel. Felding, 53 Miss. 651

French v. State ex rel. Felding

53 Miss. 651 | Miss. | 1876

Chalmers, J.,

delivered the opinion of the court.

The return of service on French was in these words : “ Executed personally on O. C. French, by exhibiting and reading to him the contents .of this writ.” This is bad, because it fails to show, or rather impliedly negatives, the delivery of a copy of the writ. The judgment by default as to him was erroneous.

The second section of “ An Act to provide for service of process against partners, and for other purposes ” (acts of 1876, pp. 35, 36), authorizes us, on appeals or writs of errors from judgments against joint and several obligors and con*653tractors, “ to reverse the judgment as to one or more defendants, and affirm as to the others, according to justice and the merits of the case ; ” and under this section we might, while reversing the judgment as to French, affirm it as to the other defendants below, but for a more serious difficulty.

The suit was brought -upon the bond of a defaulting tax-collector. It was instituted, in the name of the State of Mississippi, “ upon the relation of Alexander Felding, agent, &c., employed by the governor of said State, under and by virtue of an act to provide for the collection of revenue improperly withheld from the State and county treasury, approved March 4, 1875.” Under the provisions of this act the governor was authorized to appoint special revenue agents to bring suits against delinquent officers, with a provision that one-half of the recovery should belong to the special agent instituting the action. This statute was repealed by act of Jan. 19, 1876 (acts of 1876, p. 26), several months before the rendition of the judgment appealed from, and there was no saving in the repealing act as to suits pending under the act repealed. Nothing is better settled than that, under such circumstances, the court is left without jurisdiction to proceed with the suits. Musgrove v. Vicksburg & Nashville Railroad, 50 Miss. 677.

It is not possible to maintain the action under § 1752 of the Code, which authorizes any tax-payer to institute this class of suits against defaulting tax-collectors, because there is no allegation in the declaration that Felding was a tax-payer, or even a citizen of the State. The action was evidently brought solely by virtue of the repealed statute, and with an eye single to its provisions. Under these circumstances it must be dismissed. Its dismissal will not preclude the State or county authorities, or any tax-payer, from suing on the bqnd.

Judgment reversed, and cause dismissed.