119 So. 186 | Miss. | 1928
The bill further alleged that, after the rendition of said judgment, the First National Bank attempted to, and did, assign said void and invalid judgment to said H.H. Kersh, who, after said assignment to him, had an execution issued on one Ford one-ton truck in the possession and control of petitioner, B.S. Howell; that H.H. Kersh, to further vex and annoy said petitioner, had a garnishment issued on the 11th day of April, 1928, to T.L. Williamson, superintendent of education of Lamar county, and served on him on the 12th day of April, 1928; that on the 21st day of April, 1928, the said superintendent of education answered same, stating that he had in his possession a pay certificate for ninety dollars, the property of said B.S. Howell, being pay for the seventh month as transferman of children in Arnold Line school district. Said petitioner, B.S. Howell, further alleged that said garnishment was void and of no effect, that petitioner is an employee of the county of Lamar, engaged in transporting children to and from school, and that pay certificate is not subject to garnishment, and that the said Williamson, superintendent of education, had no right to withhold said certificate from the possession of petitioner. It is further alleged that the petitioner is without remedy save in a court of equity, and that unless the said sheriff and superintendent of education are restrained from action under said judgment, and unless the said justice of the peace is restrained from further action *270 under the said judgment, and unless Kersh, and all their agents, attorneys, and representatives, are restrained and enjoined from further proceedings upon said void judgments, petitioner will suffer irreparable loss. It is further alleged that the withholding of the said pay certificate and the levying upon the said truck has injured and impaired petitioner's credit and his financial standing, in that he has no funds with which to pay said accounts; and, further, that he had to employ counsel for the purpose of bringing this petition to enjoin said defendants and release said property, and that he had been damaged by said defendants, and each of them, in the sum of one hundred dollars; that the acts and proceedings of said defendants have been done after they knew and were aware of said judgment being void; that such acts were one through malice and willfulness; and that petitioner, B.S. Howell, is entitled to, and should be allowed, punitive as well as actual damages in the sum of one hundred dollars against each and every one of said defendants, jointly and severally; and petitioner prayed for the issuance of an injunction restraining each of said persons from further action on and in reference to said judgment. As an exhibit to the bill is a copy of the summons delivered to the petitioner, B.S. Howell, which reads as follows:
"You are hereby commanded to summon B.S. Howell to appear before me the undersigned justice of the peace of said county at my home . . . on the 7th day of March, 1928, at 1:30 o'clock P or A M, to answer the suit of First Bank to which he you defendant; and have there then this writ. Given under my hand (there being no seal of said court) and issued this the 20th day of March, A.D. 1928.
"W. WELLS, "Justice of the Peace, 4th District.
"J.R. Boon ap. Const in this case."
A writ of injunction was issued and bond given as required by law, duly approved by the chancery clerk. *271
The defendant, Kersh, demurred to the bill so filed, and filed motion to dissolve the injunction. A special chancellor heard the cause, by agreement of parties, and sustained. It is alleged, as shown in the statement of stance of the bill, and that the petitioner had an adequate legal remedy, and directed the injunction bond to be certified to the court under the statute. From this judgment this appeal is prosecuted.
We are of opinion that the demurrer was improperly sustained. It is alleged, as shown in the statement of facts, that it was agreed between the bank and Kersh and L.M. Howell that, in consideration of Kersh's indebtedness to petitioner (B.S. Howell), Kersh and L.M. Howell would pay the note here sued on. Whether that defense could have been made against the bank, had it continued to own the note, is not here necessary to consider; but when the bank assigned the judgment, or the claim upon which the judgment was founded, to Kersh, certainly appellant had the right in equity to enforce this agreement against Kersh. We think, furthermore, that it was improper for the justice of the peace to render judgment upon the void summons served upon defendant. The term of the justice of the peace under section 2382, Hemingway's 1927 Code (section 2728, Code of 1906), wherein it is stated: "Justices of the peace shall hold regular terms of their courts, at such times as they may appoint, not exceeding two and not less than one in every month, and at such convenient place in their district as they may designate," etc. — the summons, being returnable to a past day, which was an impossible date, and the law not fixing the time or place of the next term, that being left to the discretion and convenience of the justice of the peace, was void. Under section 2383, Hemingway's 1927 Code (section 2729, Code of 1906), it is provided that, "The justices of the peace may sit and act together in holding their courts, but any one may hold his court by himself, at any point in his district which he may designate." *272
By section 2384, Hemingway's 1927 Code (section 2730, Code of 1906), it is provided that, "Any one desiring to sue before a justice of the peace shall lodge with him the evidence of debt, statement of account, or other written statement of the cause of action; and thereupon the justice of the peace shall issue a summons for the defendant, returnable to the next term of his court, which shall be executed five days before the return-day. . . ." By section 2386, Hemingway's 1927 Code (section 2732, Code of 1906), it is provided that, "In cases of emergency, and where a constable or sheriff or deputy cannot be had in time, the justice of the peace may appoint some reputable person to execute any process." And by the next section it is provided that, "Process shall be delivered to the sheriff or constable of the district, who shall make return," etc. In Gilbert v. Glenny,
By section 748, Hemingway's 1927 Code (section 992, Code of 1906), "the judges of the supreme and circuit courts and chancellors, in term-time and vacation, may severally order the issuance of" writs named in said section, which includes a writ of supersedeas, but such a justice of the peace proceeding cannot be tried by the circuit judge. The only authority we find for a justice of the peace to issue a stay of execution is provided in section 2401, Hemingway's 1927 Code (section 2747, Code of 1906), and that is issued only upon condition that, if bond be given to satisfy the judgment, "the justice shall grant a stay of execution for thirty days from the date of the judgment on all sums not exceeding fifty dollars, and for sixty days on all sums over fifty dollars." But it is provided in the next section that, "A party obtaining a stay of execution shall thereby waive all errors in the judgment and abandon the right of appeal and certiorari." Certainly these sections do not afford a remedy against the judgment entered by the justice of the peace. We think, under the facts set out in the bill for injunction, if they are true in all respects, that said judgment should be canceled and the property released from execution of garnishment thereon. In addition to this, the complainant had a contract with Lamar county for the transportation of pupils to one of its consolidated schools, which was, in effect, a contract with a subdivision of the state acting in its sovereign capacity, and the county is not garnishable in cases where it is acting in its governmental capacity. See Clarksdale Compress Co. v.Caldwell,
For the reasons indicated, the judgment of the court below will be reversed, and the cause remanded for further proceedings in the chancery court.
Reversed and remanded.