75 So. 549 | Miss. | 1917
delivered the opinion, of the court.
Suit was instituted in the chancery court of the Second district of Hinds county by the state of Mississippi and the county of Hinds, upon the relation of the revenue agent, against Clara Miller, or Clara Bray, by attachment and writs of garnishment, to subject certain property owned by her to the payment of penalties provided under chapter 134, Laws 1910, for unlawfully selling and giving away, or permitting to be sold, vinous and spiritous liquors. The bill alleges that the defendant “did during the year 1915, and during the month of January, 1916, unlawfully sell and give away, and permit to be sold and given away, at said defendant’s place of business in the town of Edwards, vinous and spirituous liquors. These sales were made to different persons, and were all in violation of the laws of the state of Mississippi, which forbid the sale of said liquors.” This bill was demurred to in the court below. The demurrer was overruled, and this appeal is prosecuted to settle the principles of law governing the case.
There are two reasons assigned and argued in this court as to why the demurrer should have been sustained: The first is that the chancery court did not have jurisdiction of the case; the second, that the bill is so indefinite, uncertain, and vague it did not state a cause of action. It is the contention of the appellant that, because no nuisance is charged to have existed at the time of filing of the suit, and the suit is filed to recover penalties alone, and not to abate a nuisance, the chancery court, therefore, had no jurisdiction.
Chapter 134, Laws of 1910, confers upon chancery courts concurent jurisdiction with circuit courts to entertain suits for penalties prescribed therein, and also to suppress the nuisance. When the nuisance has ceased to exist, thq chancery court still has the right to entertain a suit for the collection of the penalty under this act. It is contended, however, by the appellant, that
“Prior to the Constitution of 1890 the recovery of penalties in the chancery court, disconnected from any equity, was unknown to the jurisdiction of that court. Section 147 of the Constitution is as follows: ‘No judgment or decree in any chancery or circuit court rendered in a civil cause shall be reversed or annulled on the ground of want of jurisdiction to render said judgment or decree, from any error or mistake as to whether the cause in which it was rendered was of equity or common-law jurisdiction; but if the supreme court shall find error in the proceedings other than as to jurisdiction, and it shall be necessary to remand the case, the supreme court may remand it to that court which, in its opinion, can best determine the controversy.’ Construing this provision of the Constitution, in Cazeneuve v. Curell, 70 Miss. 521, 13 So. 32, the court said: ‘We find here practical authority for the virtual obliteration of the lines of demarcation between courts of law and equity, if the judges and chancellors of the inferior courts choose to disregard or fail to observe those distinguishing lines.’ And in Goyer v. Wildberger, 71 Miss. 438, 15 So. 235, the court through Judge Campbell, said: ‘Now courts of law may administer equitable-relief, and courts of chancery legal relief, and no complaint can be made of it. Under the new Constitution (section 147,*722 Const. 1890) we have practically a complete blending of law and equity. . . '. The necessary effect of section 147 of the Constitution is to produce this result, for it would be absurd for this court to reverse a judgment because equity had been administered by a court of law, and remand the case to the chancery court, with directions to do what the court of law had already done; and so, where chancery had entertained a purely legal demand and disposed of it correctly.’ ”
As to the second question, we think the bill states a cause of action with sufficient particularity. If the defendant is not therein fully informed, her remedy is by motion, and not by demurrer.
Affirmed and remanded.
