diff --git a/miss/11241019.json b/miss/11241019.json new file mode 100644 index 0000000000000000000000000000000000000000..3e1b62fec480ac3da138705670b171bee1779f21 --- /dev/null +++ b/miss/11241019.json @@ -0,0 +1 @@ +"{\"id\": \"11241019\", \"name\": \"Roderick ESKRIDGE v. STATE of Mississippi\", \"name_abbreviation\": \"Eskridge v. State\", \"decision_date\": \"2000-06-29\", \"docket_number\": \"No. 1999-DP-00769-SCT\", \"first_page\": \"508\", \"last_page\": \"516\", \"citations\": \"765 So. 2d 508\", \"volume\": \"765\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T17:01:28.497423+00:00\", \"provenance\": \"CAP\", \"judges\": \"PRATHER, C.J., PITTMAN and BANKS, P.JJ., SMITH, WALLER, COBB and DIAZ, JJ., concur.\", \"parties\": \"Roderick ESKRIDGE v. STATE of Mississippi.\", \"head_matter\": \"Roderick ESKRIDGE v. STATE of Mississippi.\\nNo. 1999-DP-00769-SCT.\\nSupreme Court of Mississippi.\\nJune 29, 2000.\\nRehearing Denied Aug. 24, 2000.\\nLeland H. Jones, III, Greenwood, Attorney for Appellant.\\nOffice of the Attorney General by Marvin L. White, Jr., Leslie S. Lee, Attorney for Appellee.\", \"word_count\": \"3639\", \"char_count\": \"22416\", \"text\": \"McRAE, Justice, for the Court:\\n\\u00b6 1. This capital murder and armed robbery case was tried on the sentencing phase after a guilty plea was entered by Appellant Roderick Eskridge (\\\"Eskridge\\\"). Eskridge was convicted on January 26, 1999, in Attala County , Mississippi and was sentenced to death by lethal injection. Eskridge raises one issue, namely that the trial court failed to allow the testimony of a psychologist who had not examined him but was expected to testify concerning what life would be like for a minor in prison for life without the possibility of parole. We rejected similar arguments in Hansen v. State, 592 So.2d 114 (Miss.1991) and Wilcher v. State, 697 So.2d 1123 (Miss.1997) and do so again today, thereby affirming his conviction and sentence.\\nI.\\n\\u00b6 2. On December 1, 1997, in Grenada County, Mississippi, Jackie Hardiman asked Terry Yates and Krishun Williams to give her a ride home. On the way, Yates picked up three other people, one of which was Eskridge. Eskridge pointed a gun at Hardimaris head and told her to give him all the money she had, which she promptly did. Hardiman was then driven to Grenada Lake and ordered to remove all of her clothes. Hardiman fled into the woods as gunshots were fired. Two campers in the area gave Hardiman clothes and notified police.\\n\\u00b6 3. On the same night, the body of Cheryl Johnson was found in the nearby woods. Johnson was 34 years old and mentally retarded. Johnson had been shot in the chest with an exit wound in her back. An autopsy revealed that the barrel of the gun would have been in contact with the skin when fired. It was also the opinion of the pathologist that Johnson would have remained conscious for 15-20 minutes after being shot.\\n\\u00b6 4. Investigators interviewed Krishun Williams, who had last seen Johnson. As a result, Derek Williams was arrested, followed by Eskridge. Eskridge was arrested at his girlfriend's apartment, and a .32 caliber pistol with ammunition were found on the dresser in the bedroom. Ballistics tests showed that the gun was the one used to kill Johnson.\\n\\u00b6 5. Eskridge was advised of his rights and gave two statements to the police. He admitted that after robbing Jackie Hardi-man, they kidnapped Cheryl Johnson and went to her mother's house to get some money. Afterwards, they drove into the woods and forced Johnson out of the car, robbed her and forced her to undress. In Eskridge's second statement he admitted that he had the gun, took off Johnson's bra and robbed her of her money. When Johnson followed Eskridge back to the car asking for a ride home, Eskridge turned around and shot her in the chest.\\n\\u00b6 6. The driver of the car, Terry Yates, confirmed that Eskridge had the gun and shot Johnson. He stated that Johnson pleaded for Eskridge not to kill her when he shot her. He also stated that Hardi-man and Johnson were targeted because it was the first of the month and they were expecting support checks. According to Yates, the money stolen from Johnson was used to purchase marijuana for the whole group. Williams also told police that Esk-ridge was the triggerman and received the money from Johnson, as well as being the person who held the gun to Hardimaris head.\\nII.\\nSTANDARD OF REVIEW\\n\\u00b6 7. The relevancy and admissibility of evidence are largely within the discretion of the trial judge. Only if the trial judge abuses this discretion -will his decision be reversed. Underwood v. State, 708 So.2d 18, 31 (Miss.1998).\\nIII.\\nA. WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW A DEFENSE EXPERT IN PSYCHOLOGY TO TESTIFY AT SENTENCING CONCERNING THE EFFECTS OF A LIFE SENTENCE ON YOUNG OFFENDERS.\\n\\u00b6 8. Eskridge voluntarily pled guilty to armed robbery and capital murder. Therefore, his only assignment of error on appeal relates to the sentencing phase of his trial. Eskridge alleges that the trial court erred by refusing to allow the testimony of a psychologist regarding \\\"the emotional, psychological and physical effects of imprisonment upon an individual.\\\"\\n\\u00b6 9. During the sentencing stage of Esk-ridge's trial, the defense offered the testimony of Dr. Michael Whelan, a psychologist from Greenwood, Mississippi. His testimony was offered, Eskridge argues, because his capacity as a psychologist for the Mississippi State Penitentiary at Parchman gave him a unique perspective into the lives of long-term prisoners.\\n\\u00b6 10. Eskridge argues that \\\"[e]x-pert testimony is admissible where it will assist the trier of fact to understand the evidence or to determine a fact in evidence.\\\" Simmons v. State, 722 So.2d 666, 672 (Miss.1998)(citing Lentz v. State, 604 So.2d 243, 246 (Miss.1992)).\\nIn considering the admissibility of an expert's testimony, we ask: \\\"[i]s the field of expertise one in which it has been scientifically established that due investigation and study in conformity with techniques and practices generally accepted within the field will produce a valid opinion? Where the answer to this question is in the affirmative, we generally allow expert testimony.\\\"\\nWilson v. State, 574 So.2d 1324, 1334 (Miss.1990)(quoting House v. State, 445 So.2d 815, 822 (Miss.1984)). Eskridge points out that House also provides that \\\"[ijndeed, within a wide range of contexts we have allowed expert opinion testimony from properly qualified psychiatrists and psychologists.\\\" House, 445 So.2d at 822.\\n\\u00b6 11. Eskridge contends that under a plain reading of M.R.E. 702, the proffered testimony of Dr. Whelan was relevant to a factual determination of the sole issue in this case: whether to impose the death penalty upon Eskridge. Eskridge claims that the inadmissibility ruling was in error and constituted an abuse of discretion by the trial court.\\n\\u00b6 12. The State submits that Dr. Whe-lan's status as an expert in psychology is immaterial and the proffered testimony irrelevant. It points to the explanation defense counsel gave regarding the nature of Dr. Whelan's testimony to the trial court:\\nBY MR. STUCKEY [for Eskridge]: Now, I have subpoenaed \\u2014 the defense has subpoenaed Dr. Whelan to testify in generalities, because he has not examined the defendant or any records of the defendant. He would testify to the mental, emotional consequences of someone sentenced to a long term in the penitentiary. What effect that has on that person mentally, emotionally. How that person operates and can operate on a daily basis knowing that he would never be released from the penitentiary. That type of testimony all in a effort to somehow be able to compare what a life without parole sentence is to a death sentence. That would be the purpose of this testimony.\\nBY THE COURT: Have you got any authority for that type of testimony?\\nBY MR. STUCKEY: I have looked, and I can't find any.\\nBY MR. EVANS [for the State]: May I proceed, Your Honor? Our response to this is this is very similar to the Wilcher case. In that case the court said the defendant is not entitled to introduce photographs of Parchman, death row or maximum security units and that testimony of former prison officials describing the harshness of life sentence in the penitentiary. The evidence has no relation to the defendant's character, his record or circumstances of the crime. And I say this would be almost identical type testimony to that and therefore it would not be relevant. And this is Wilcher v. State, 697 So.2d 1123.\\n\\u00b6 13. The trial court found this testimony to be analogous to that in Wilcher and declared it inadmissible. The State submits that this type of testimony is clearly irrelevant. Such testimony would only be admissible if it relates to the character and background of the defendant and the circumstance surrounding the crime that would be mitigating. See Tuilaepa v. California, 512 U.S. 967, 976, 114 S.Ct. 2630, 2637, 129 L.Ed.2d 750, 762 (1994)(circum-stances of a particular offense are constitutionally indispensable parts of the process of inflicting the penalty of death); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). However, there is no proof here that such testimony would fall into that category.\\n\\u00b6 14. In Hansen v. State, 592 So.2d 114, 147 (Miss.1991), Hansen argued that the circuit court erred in refusing to allow opinion testimony of a prison counselor that Hansen would adapt well to prison life in the future. The counselor had become acquainted with Hansen while Hansen was incarcerated in the Florida correctional system. Hansen cited Skipper v. South Carolina, 476 U.S. 1, 5, 106 S.Ct. 1669, 1671, 90 L.Ed.2d 1, 7 (1986), wherein the Court wrote:\\n[E]vidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating.\\nWhile this Court took note of its prior acceptance of this rule, it held that speculative opinion testimony of how a defendant may adapt to prison life in the future is not admissible unless the expert is qualified and accepted in the field of predicting future behavior. Hansen, 592 So.2d at 147.\\n\\u00b6 15. In the present case, Dr. Whelan was not offered as an expert in predicting future behavior. The proffer stated that he would testify only to generalities. In addition, unlike the prison counselor in Hansen, Dr. Whelan had never even examined Eskridge or any of his records. Such testimony would have been irrelevant. Taking into consideration that Dr. Whelan was not qualified as an expert in predicting future behavior and had not even met with Eskridge, his testimony would not have assisted the trier of fact in making a determination of fact or understand the evidence pursuant to M.R.E. 702.\\nIV.\\nCONCLUSION\\n\\u00b6 16. After confessing to the robbery and killing of Cheryl Johnson to his girlfriend, arresting deputies and his mother, Eskridge pled guilty, apparently in hopes of leniency from the jury. This trial strategy did not work in his favor. Although he was only seventeen (17) years old at the time of the crime, we have held before that minors can be treated as adults in such circumstances and are allowed to waive their rights and confess to a crime. Clemons v. State, 733 So.2d 266, 269 (Miss.1999) (Court held that 14-year-old defendant voluntarily gave confession and intelligently waived his rights). As a result, Eskridge could only find one issue to appeal to this Court. We find no proof that the trial judge abused his discretion in refusing to admit Dr. Whelan's testimony.\\n\\u00b6 17. Pursuant to Miss.Code Ann. \\u00a7 99-19-105(3)(Supp.l999), in addition to reviewing the merits of those issues raised by Eskridge, this Court is required to determine:\\n(a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor;\\n(b) Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in Section 99-19-101; and\\n(c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.\\n\\u00b6 18. Other capital murder cases decided by this Court, particularly Hansen v. State, 592 So.2d 114 (Miss.1991) and Witcher v. State, 697 So.2d 1123 (Miss.1997), have been reviewed and compared to the instant case. We find that the sentence of death in this case was not influenced by passion, prejudice or any other arbitrary factor. Further, the evidence supports the jury's findings of statutory aggravating circumstances as enumerated in Miss.Code Ann. \\u00a7 99-19-105(5)(Supp.1999). Finally, the sentence of death in this case is neither excessive nor disproportionate to those cases in which such sentence has been imposed and upheld. Eskridge's conviction of capital murder and sentence of death are supported by substantial evidence in the record. Eskridge pled guilty to armed robbery and capital murder. He received a fair sentencing hearing. Therefore, we affirm Eskridge's conviction and sentence and the judgment of the Grenada County Circuit Court.\\nf 19. CONVICTION OF CAPITAL MURDER AND SENTENCE OF DEATH BY LETHAL INJECTION AFFIRMED. EXECUTION DATE TO BE SET WITHIN SIXTY DAYS OF FINAL DISPOSITION OF THIS CASE PURSUANT TO MISS. CODE ANN. \\u00a7 99-19-105(7)(Supp.l999) AND M.R.A.P. 41(a).\\nPRATHER, C.J., PITTMAN and BANKS, P.JJ., SMITH, WALLER, COBB and DIAZ, JJ., concur.\\nMILLS, J., not participating.\\nAPPENDIX\\nDEATH CASES AFFIRMED BY THIS COURT\\nMcGilberry v. State, 741 So.2d 894 (Miss.1999).\\nPuckett v. State, 737 So.2d 322 (Miss.1999). remanded for Batson hearing.\\nManning v. State, 735 So.2d 323 (Miss.1999). remanded for Batson hearing.\\nTurner v. State, 732 So.2d 937 (Miss.1999).\\nSmith v. State, 729 So.2d 1191 (Miss.1998).\\nBurns v. State, 729 So.2d 203 (Miss.1998).\\nJordan v. State, 728 So.2d 1088 (Miss.1998).\\nGray v. State, 728 So.2d 36 (Miss.1998).\\nManning v. State, 726 So.2d 1152 (Miss.1998).\\nWoodward v. State, 726 So.2d 524 (Miss.1997).\\nBell v. State, 725 So.2d 836 (Miss.1998).\\nEvans v. State, 725 So.2d 613 (Miss.1997).\\nBrewer v. State, 725 So.2d 106 (Miss.1998).\\nCrawford v. State, 716 So.2d 1028 (Miss.1998).\\nDoss v. State, 709 So.2d 369 (Miss.1996).\\nUnderwood v. State, 708 So.2d 18 (Miss.1998).\\nHolland v. State, 705 So.2d 307 (Miss.1997).\\nWells v. State, 698 So.2d 497 (Miss.1997).\\nWilcher v. State, 697 So.2d 1123 (Miss.1997).\\nWilcher v. State, 697 So.2d 1087 (Miss.1997).\\nWiley v. State, 691 So.2d 959 (Miss.1997).\\nBrown v. State, 690 So.2d 276 (Miss.1996).\\nSimon v. State, 688 So.2d 791 (Miss.1997).\\nJackson v. State, 684 So.2d 1213 (Miss.1996).\\nWilliams v. State, 684 So.2d 1179 (Miss.1996).\\nDavis v. State, 684 So.2d 643 (Miss.1996).\\nTaylor v. State, 682 So.2d 359 (Miss.1996).\\nBrown v. State, 682 So.2d 340 (Miss.1996).\\nBlue v. State, 674 So.2d 1184 (Miss.1996).\\nHolly v. State, 671 So.2d 32 (Miss.1996).\\nWalker v. State, 671 So.2d 581 (Miss.1995).\\nRussell v. State, 670 So.2d 816 (Miss.1995).\\nBallenger v. State, 667 So.2d 1242 (Miss.1995).\\nDavis v. State, 660 So.2d 1228 (Miss.1995).\\nCarr v. State, 655 So.2d 824 (Miss.1995).\\nMack v. State, 650 So.2d 1289 (Miss.1994).\\nChase v. State, 645 So.2d 829 (Miss.1994).\\nFoster v. State, 639 So.2d 1263 (Miss.1994).\\nConner v. State, 632 So.2d 1239 (Miss.1993).\\nHansen v. State, 592 So.2d 114 (Miss.1991).\\nShell v. State, 554 So.2d 887 (Miss.1989), Shell v. Mississippi 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) reversing, in part, and remanding, Shell v. State, 595 So.2d 1323 (Miss.1992) remanding for new sentencing hearing.\\nDavis v. State, 551 So.2d 165 (Miss.1989).\\nMinnick v. State, 551 So.2d 77 (Miss.1989).\\nPinkney v. State, 538 So.2d 329 (Miss.1989), Pinkney v. Mississippi 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990) vacating and remanding Pinkney v. State, 602 So.2d 1177 (Miss.1992) remanding for new sentencing hearing.\\nClemons v. State, 535 So.2d 1354 (Miss.1988), Clemons v. Mississippi 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) vacating and remanding, Clemons v. State, 593 So.2d 1004 (Miss.1992) remanding for new sentencing hearing.\\nWoodward v. State, 533 So.2d 418 (Miss.1988).\\nNixon v. State, 533 So.2d 1078 (Miss.1987).\\nCole v. State, 525 So.2d 365 (Miss.1987).\\nLockett v. State, 517 So.2d 1346 (Miss.1987).\\nLockett v. State, 517 So.2d 1317 (Miss.1987).\\nFaraga v. State, 514 So.2d 295 (Miss.1987).\\nJones v. State, 517 So.2d 1295 (Miss.1987), Jones v. Mississippi, 487 U.S. 1230, 108 S.Ct. 2891, 101 L.Ed.2d 925 (1988) vacating and remanding, Jones v. State, 602 So.2d 1170 (Miss.1992) remanding for new sentencing hearing.\\nWiley v. State, 484 So.2d 339 (Miss.1986).\\nJohnson v. State, 477 So.2d 196 (Miss.1985).\\nGray v. State, 472 So.2d 409 (Miss.1985).\\nCabello v. State, 471 So.2d 832 (Miss.1985).\\nJordan v. State, 464 So.2d 475 (Miss.1985).\\nWilcher v. State, 455 So.2d 727 (Miss.1984).\\nBilliot v. State, 454 So.2d 445 (Miss.1984).\\nStringer v. State, 454 So.2d 468 (Miss.1984).\\nDufour v. State, 453 So.2d 337 (Miss.1984).\\nNeal v. State, 451 So.2d 743 (Miss.1984).\\nBooker v. State, 449 So.2d 209 (Miss.1984).\\nWilcher v. State, 448 So.2d 927 (Miss.1984).\\nCaldwell v. State, 443 So.2d 806 (Miss.1983).\\nIrving v. State, 441 So.2d 846 (Miss.1983).\\nTokman v. State, 435 So.2d 664 (Miss.1983).\\nLeatherwood v. State, 435 So.2d 645 (Miss.1983).\\nHill v. State, 432 So.2d 427 (Miss.1983).\\nPruett v. State, 431 So.2d 1101 (Miss.1983).\\nGilliard v. State, 428 So.2d 576 (Miss.1983).\\nEvans v. State, 422 So.2d 737 (Miss.1982).\\nKing v. State, 421 So.2d 1009 (Miss.1982).\\nWheat v. State, 420 So.2d 229 (Miss.1982).\\nSmith v. State, 419 So.2d 563 (Miss.1982).\\nJohnson v. State, 416 So.2d 383 (Miss.1982).\\nEdwards v. State, 413 So.2d 1007 (Miss.1982).\\nBullock v. State, 391 So.2d 601 (Miss.1980).\\nReddix v. State, 381 So.2d 999 (Miss.1980).\\nJones v. State, 381 So.2d 983 (Miss.1980).\\nCulberson v. State, 379 So.2d 499 (Miss.1979).\\nGray v. State, 375 So.2d 994 (Miss.1979).\\nJordan v. State, 365 So.2d 1198 (Miss.1978).\\nVoyles v. State, 362 So.2d 1236 (Miss.1978).\\nIrving v. State, 361 So.2d 1360 (Miss.1978).\\nWashington v. State, 361 So.2d 61 (Miss.1978).\\nBell v. State, 360 So.2d 1206 (Miss.1978).\\nDEATH CASES REVERSED AS TO GUILT PHASE AND SENTENCE PHASE\\nEdwards v. State, 737 So.2d 275 (Miss.1999).\\nSmith v. State, 733 So.2d 793 (Miss.1999).\\nPorter v. State, 732 So.2d 899 (Miss.1999).\\nKolberg v. State, 704 So.2d 1307 (Miss.1997).\\nSnelson v. State, 704 So.2d 452 (Miss.1997).\\nFuselier v. State, 702 So.2d 388 (Miss.1997).\\nHoward v. State, 701 So.2d 274 (Miss.1997).\\nLester v. State, 692 So.2d 755 (Miss.1997).\\nHunter v. State, 684 So.2d 625 (Miss.1996).\\nLanier v. State, 684 So.2d 93 (Miss.1996).\\nGiles v. State, 650 So.2d 846 (Miss.1995).\\nDuplantis v. State, 644 So.2d 1235 (Miss.1994).\\nHarrison v. State, 635 So.2d 894 (Miss.1994).\\nButler v. State, 608 So.2d 314 (Miss.1992).\\nJenkins v. State, 607 So.2d 1171 (Miss.1992).\\nAbram v. State, 606 So.2d 1015 (Miss.1992).\\nBalfour v. State, 598 So.2d 731 (Miss.1992).\\nGriffin v. State, 557 So.2d 542 (Miss.1990).\\nBevill v. State, 556 So.2d 699 (Miss.1990).\\nWest v. State, 553 So.2d 8 (Miss.1989).\\nLeatherwood v. State, 548 So.2d 389 (Miss.1989).\\nMease v. State, 539 So.2d 1324 (Miss.1989).\\nHouston v. State, 531 So.2d 598 (Miss.1988).\\nWest v. State, 519 So.2d 418 (Miss.1988).\\nDavis v. State, 512 So.2d 1291 (Miss.1987).\\nWilliamson v. State, 512 So.2d 868 (Miss.1987).\\nFoster v. State, 508 So.2d 1111 (Miss.1987).\\nSmith v. State, 499 So.2d 750 (Miss.1986).\\nWest v. State, 485 So.2d 681 (Miss.1985).\\nFisher v. State, 481 So.2d 203 (Miss.1985).\\nJohnson v. State, 476 So.2d 1195 (Miss.1985).\\nFuselier v. State, 468 So.2d 45 (Miss.1985).\\nWest v. State, 463 So.2d 1048 (Miss.1985).\\nJones v. State, 461 So.2d 686 (Miss.1984).\\nMoffett v. State, 456 So.2d 714 (Miss.1984).\\nLanier v. State, 450 So.2d 69 (Miss.1984).\\nLaney v. State, 421 So.2d 1216 (Miss.1982).\\nDEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR RESENTENCING TO LIFE IMPRISONMENT\\nReddix v. State, 547 So.2d 792 (Miss.1989).\\nWheeler v. State, 536 So.2d 1341 (Miss.1988).\\nWhite v. State, 532 So.2d 1207 (Miss.1988).\\nBullock v. State, 525 So.2d 764 (Miss.1987).\\nEdwards v. State, 441 So.2d 84 (Miss.1983).\\nDycus v. State, 440 So.2d 246 (Miss.1983).\\nColeman v. State, 378 So.2d 640 (Miss.1979).\\nDEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR A NEW TRIAL ON SENTENCING PHASE ONLY\\nWalker v. State, 740 So.2d 873 (Miss.1999).\\nWatts v. State, 733 So.2d 214 (Miss.1999).\\nWest v. State, 725 So.2d 872 (Miss.1998).\\nSmith v. State, 724 So.2d 280 (Miss.1998).\\nBerry v. State, 703 So.2d 269 (Miss.1997).\\nBooker v. State, 699 So.2d 132 (Miss.1997).\\nTaylor v. State, 672 So.2d 1246 (Miss.1996).\\nShell v. State, 554 So.2d 887 (Miss.1989), Shell v. Mississippi 498 U.S. 1, 111 S.Ct. 318, 112 L.Ed.2d 1 (1990) reversing, in part, and remanding, Shell v. State 595 So.2d 1323 (Miss.1992) remanding for new sentencing hearing.\\nPinkney v. State, 538 So.2d 329 (Miss.1989), Pinkney v. Mississippi 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990) vacating and remanding, Pinkney v. State, 602 So.2d 1177 (Miss.1992) remanding for new sentencing hearing.\\nClemons v. State, 535 So.2d 1354 (Miss.1988), Clemons v. Mississippi 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) vacating and remanding, Clemons v. State, 593 So.2d 1004 (Miss.1992) remanding for new sentencing hearing.\\nJones v. State, 517 So.2d 1295 (Miss.1987), Jones v. Mississippi 487 U.S. 1230, 108 S.Ct. 2891, 101 L.Ed.2d 925 (1988) vacating and remanding, Jones v. State, 602 So.2d 1170 (Miss.1992) remanding for new sentencing hearing.\\nRussell v. State, 607 So.2d 1107 (Miss.1992).\\nHolland v. State, 587 So.2d 848 (Miss.1991).\\nWillie v. State, 585 So.2d 660 (Miss.1991).\\nLadner v. State, 584 So.2d 743 (Miss.1991).\\nMackbee v. State, 575 So.2d 16 (Miss.1990).\\nBerry v. State, 575 So.2d 1 (Miss.1990).\\nTurner v. State, 573 So.2d 657 (Miss.1990).\\nState v. Tokman, 564 So.2d 1339 (Miss.1990).\\nJohnson v. State, 547 So.2d 59 (Miss.1989).\\nWilliams v. State, 544 So.2d 782 (Miss.1987); sentence aff'd 684 So.2d 1179 (1996).\\nLanier v. State, 533 So.2d 473 (Miss.1988).\\nStringer v. State, 500 So.2d 928 (Miss.1986).\\nPinkton v. State, 481 So.2d 306 (Miss.1985).\\nMhoon v. State, 464 So.2d 77 (Miss.1985).\\nCannaday v. State, 455 So.2d 713 (Miss.1984).\\nWiley v. State, 449 So.2d 756 (Miss.1984); resentencing affirmed, Wiley v. State, 484 So.2d 339 (Miss.1986), cert. denied Wiley v. Mississippi 479 U.S. 906, 107 S.Ct. 304, 93 L.Ed.2d 278 (1988); resentencing ordered, Wiley v. State, 635 So.2d 802 (Miss.1993) following writ of ha-beas corpus issued pursuant to Wiley v. Puckett, 969 F.2d 86, 105-106 (5th Cir.1992); resentencing affirmed, Wiley v. State, 95-DP-00149, February 13, 1997 (rehearing pending).\\nWilliams v. State, 445 So.2d 798 (Miss.1984).\\n. Eskridge was indicted in Grenada County and venue was later transferred to Attala County.\\n. Holly v. State, 716 So.2d 979 (Miss.1998).\\nCase was originally affirmed in this Court but on remand from U.S. Supreme Court, case was remanded by this Court for a new sentencing hearing.\\nCase was originally affirmed in this Court but on remand from U.S. Supreme Court, case was remanded by this Court for a new sentencing hearing.\\nCase was originally affirmed in this Court but on remand from U.S. Supreme Court, case was remanded by this Court for a new sentencing hearing.\"}" \ No newline at end of file diff --git a/miss/11260134.json b/miss/11260134.json new file mode 100644 index 0000000000000000000000000000000000000000..52d05a0d8391bdfe8dd9d5cbfb543a05a7844b61 --- /dev/null +++ b/miss/11260134.json @@ -0,0 +1 @@ +"{\"id\": \"11260134\", \"name\": \"Bank of Mississippi v. Duncan & Marshall\", \"name_abbreviation\": \"Bank of Mississippi v. Duncan\", \"decision_date\": \"1878-04\", \"docket_number\": \"\", \"first_page\": \"166\", \"last_page\": \"174\", \"citations\": \"56 Miss. 166\", \"volume\": \"56\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:22:19.633071+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Bank of Mississippi v. Duncan & Marshall.\", \"head_matter\": \"Bank of Mississippi v. Duncan & Marshall.\\n1. Bank. Rights of creditors and stockholders. Power of Legislature.\\nIf, at the time of the passage of the act of February 10, 1860, which granted to the Bank of Mississippi the right to sue to collect \\u201c the debts and choses in action due to it,\\u201d there was any thing due the bank, to which creditors and stockholders could maintain a claim in any of the courts of this State, it was within the power of the Legislature to revive the bank for the purpose of collecting its assets, to be distributed amongst such creditors and stockholders. But if the bank had ceased to exist by the limitation of time in its charter, and if by its extinction the rights of creditors and stockholders expired, it was not within the power of the Legislature to revive rights before extinguished, and authorize their enforcement.\\n2. Same. Its dissolution by limitation. Effect.\\nThe High Court of Brrors and Appeals settled the rule that banks in this State were subject to the operation of the common-law incidents to the dissolution of a corporation; and as a result of such rule, that court held that, upon the dissolution of a bank, all of its rights and liabilities became extinct, except such as might be saved by express statutory provisions. Under the operation of this rule, where a bank was dissolved in 1850, by the efflux of time or a limitation in its charter, neither the creditors nor stockholders of the bank had any .rights at law or in equity after its dissolution.\\n3. Same. Dissolution by time. Rights of creditors and stockholders.\\nThis court cannot concur in the opinions of the High Court of Brrors and Appeals, by which the rule was established in this State that the rights in equity of the creditors and stockholders of a bank should become extinct upon its dissolution by efflux of time; but, the rule having been settled, it is the duty of this court to apply it to a bank contemporary with those in respect to which the rule was announced.\\n4. Same. Dissolutionthereof. Aet'of 1843.\\nThe act of 1843, which saved the rights of creditors after the dissolution of a bank, applied in express terms to banks against which any judgment of forfeiture should be rendered, and had no application to banks dissolved by lixn- . itation of time.\\nAppeal from the Chancery Court of Washington County.\\nHon. W. G. Phelps, Chancellor;\\nOn the 13th of June, 1844, in a suit in chancery by Brown, Brothers & Co., Charles A. Lacoste was .appointed receiver of the assets-of the'Bank of Mississippi. In a few days thereafter, Lacoste gave bond for the faithful discharge of his duties as -receiver, took possession of the property of the bank,- and entered upon the discharge of his duties as directed in the order of court appointing him. In 1855 the bill of complaint of Brown, Brothers & Co. was dismissed, but the Pause was retained for the purpose of a settlement with the receiver.- In December, 1856, Lacoste was ordered to pay and deliver into court, by the 20th of March, 1857, all the moneys, notes, bills of exchange, or other securities or choses in action, collected or received by him as such receiver. In response to this\\u2019 order, Lacoste filed a report, to which exceptions were taken and sustained. Afterwards, Lacoste removed from the State, and in November, 1859, the papers in the cause were referred to W. L. Nugent, as a special commissioner, to take and state an account with Lacoste as receiver. Nugent made his report as commissioner, charging Lacoste, as receiver, with $125,000, and'notes, bonds, and other evidences of debt, amounting in value to $223,411. The report, was confirmed, and the receiver was ordered to pay and deliver into court the money, notes, bonds, etc., charged against him.\\nOn the 22d of February, 1860, a scire facias was issued in behalf of the Bank of Mississippi, defendant in the suit instituted by Brown, Brothers & Co., against Levin R. Marshall, and Stephen Duncan, two of the sureties on R\\u00e1eoste\\u2019s bond as receiver. The writ alleged that the conditions of the bond had been broken by the failure of the receiver to comply with the order of December, 1856, requiring him to pay and deliver into court the money, notes, bonds, etc., collected or received by him, and his failure to comply with the order requiring him to pay and deliver into court the money, notes, bonds, etc., charged against him by the report of Nugent, the special commissioner. And the writ required the defendants therein to show cause by the 14th of May, 1860, why the court should not assess damages against them to the extent of $300,000, the penalty of the bond. Marshall and Duncan demurred to the scire facias: The demurrer was sustained by the Chancery Court, but, upon appeal to this court, the decree sustaining the demurrer was overruled. The case on the demurrer is reported in 52 Miss. 740.\\nAfter the reversal of the chancellor\\u2019s decree on the demur,rer, the defendants answered, and set up the defence that the bank accepted an act of the Legislature passed on the 21st of February, 1840, as an amendment of its charter, which amendment operated to dissolve the bank at the expiration of ten years from the passage of the amendatory act, and that by its dissolution all of its corporate rights, powers, and privileges became extinct. It was shown in evidence that, at the time of the issuance of the scire facias, A. F. Smith and J. L. Yer-ger had become the holders of the entire stock of the bank, and that the writ was issued at their instance and for their benefit. On the final hearing in the Chancery Court, the scire facias was dismissed. There are several legislative acts to be considered in connection with this case, but their respective bearings are sufficiently indicated in the opinion of the court.\\nW. L. Nugent, for the appellant.\\n1. There is no proof of the acceptance by the bank of the act of February 21,- 1840, in the mode pointed out in the act itself.\\n2. Can the receiver, or his sureties, set up the alleged dissolution of the bank in bar of the recovery sought in this suit? If so, assuming that the act of 1840 was accepted, the result would be that the corporation could be prevented from exercising its functions long enough to let it expire, its assets could be squandered, and its stockholders ruined without redress. This is abhorrent to natural justice, and is not the law. The pendency of the injunction from April, 1843, to December, 1856, as to the parties to this litigation and their privies, should be excepted out of the period of limitation fixed by the statute, and the defendants should be estopped from setting up the defence of dissolution. If this is done, the act of 1860, reviving the bank, affords all the power necessary for this proceeding. The act of 1843 expressly provided that the debtors of a bank should not be released' by a judgment of forfeiture against it. A legal dissolution otherwise is the same, in effect, as by judgment of forfeiture. Was not this the law without the act of 1843? The old adjudications on this point were unjust, and without reason. See Bacon v. Robertson, 18 How. (U. S.) 482; Ang. & Ames on Corp., sect. 779 a; Curran v. Arkansas, 15 How. (U. S.) 304; Bum v. Robertson, 6 Wall. 277 ; New Albany v. Burke, 11 Wall. 96 ; Burke v. Smith, 16 Wall. 390 ; 17 Wall. 610; 16 Ind. 46, 469.\\n3. After the dissolution of money and trading corporations, the stockholders have the right in equity to use the corporate name for the collection of its assets ; and clearly so, after an enabling act of the Legislature. City of Louisville v. Bank of The United States, 3 B. Mon. 142; James v. Woodruff, 2 Denio, 574; Gilmer v. Bank, 8 Ohio, 71; State Bank v. The State, 1 Blackf. 273; Newton & Co. v. White, 42 Ga. 148; Ang. & Ames on Corp. 78 ; 2 Mason, 43; 14 Mass. 58.\\nHarris & George, on the same side.\\n1. Was the case which the Chancery Court retained for the purpose of getting the assets out of the hands of the receiver, pending in 1850, when the time limited for winding up the bank had expired? We affirm that it was pending, within the meaning of the act of 1840, both as to the receiver and his sureties. The liability of the sureties was essentially involved in the proceeding against the receiver. Chapin v. James, 1 Cent. L. J. 540.\\n2. Did the acceptance of the act of 1840 by the bank, supposing such acceptance, and the expiration of the time limited therein, extinguish the obligation of the receiver and'his sureties on their bond? 'We affirm, on the admitted doctrines of the Chancery Court, that there could be no such effect.\\n8. Was the act of 1860, giving\\u2019further time for the bank to collect its assets, valid? We affirm that it was, because, in equityj the debtors had acquired no right to resist payment, and the Legislature had the power to legislate so as to insure the due collection and distribution' of the effects-of'an insolvent corporation,' which'was being wound up under its own scheme. 18 How. (U. S.) 480 ; Ang. & Ames, on Corp. 823.\\nW. L. Nugent and W. P. Harris, of counsel for the appellant, argued the case orally.\\nT. J. (& F. A. E. Wharton, for the appellees.\\n1. The proof shows clearly that the act of 1840 was accepted by the bank as an amendment of its charter.\\n2. The bank having accepted the act of 1840 as an amendment of its charter, was debarred by the provisions thereof from suing out the scire facias in this case. The bank had no power to institute a new suit after the 22d of February, 1850. The issuance of the scire facias was the commencement of a new suit. Banh of Mississippi v. Duncan et al., 52 Miss. 740; Simms v. Nash, 1 How. 271: Curry v. The State,- 39 Miss. 511; -Bowen v. Bowen, 45 Miss. 10.\\n3. The act of 1860 is wholly inoperative for any purpose connected with the prosecution or defence of this suit. The time limited by the act of 1840, in which the bank might commence suits, had expired before the passage of the act of 1860, which, it is claimed, gave the bank further time for suing. In such circumstances the Legislature had no power to extend the limitation.\\nA. H. Handy, on the same side.\\n1. It is shown by the evidence that the bank accepted the provisions of the act of 1840, which put an end to all of its powers after the expiration of ten years, except as to the prosecution and defence of suits then pending. It cannot be pretended that the scire facias was pending at the end of ten years from the 22d of February, 1840. Bank of Mississippi v. Duncan et ah, 52 Miss. 740.\\n2. The act,of 1860 could -not give the bank the right' to have the scire facias issued; for its right to sue ivas barred by the limitation in the amended charter of 1840, before the passage of the act of 1860. The latter act was unconstitutional, in attempting to restore rights extinguished and barred by limitation. Cooley on Const. Lim. 365. The bank was defunct in 1860, having had no directors or other officers in many years. It was not in the power of the Legislature to galvanize it into potential existence.\\n3. In order to enforce the claim set forth in the scire facias, in favor of the stockholders, two things were necessary to be averred and proved: (1) that the corporation had been dissolved ; and (2) that all the debts of the bank had been paid. Bacon v. Robertson, 18 How. (U. S.) 480. But the scire facias sets forth no ground of relief except for the bank.\\nT. J. Wharton and A. H. Handy, of counsel for the appel-lees, argued the case orally.\", \"word_count\": \"3121\", \"char_count\": \"17581\", \"text\": \"Campbell, J.,\\ndelivered the opinion of the court.\\nThe evidence justified the conclusion that the amendment of the charter of the bank by the act of February 21, 1840, was accepted by it as therein provided for. The testimony of Lacoste; the agreement .of the district attorney, made in 1850, in the quo warranto suit pending in the Circuit Court of Washington County; the affidavit of A. F. Smith, made in that suit; and the allusions in the1 answer of Turnbull, president, and John G. Cocke, in evidence, satisfy us of the acceptance of the amendment mentioned. The circumstances relied on to show the contrary fail to have that effect. The quo warranto suit against the bank quite consists with the fact of an acceptance of the amendment of the charter, and the attempt to surrender the charter under the general law of 1840, as indicated by the entry on the general docket of the Superior Court of Chancery, also consists with having accepted the amendment in 1840; for, notwithstanding such acceptance, the bank was liable to proceedings by quo war-ranto, and may have been anxious to surrender its charter. And the reference by Lacoste's last report to. the attempt of the bank, through some of the directors, to accept the act on p. 19 of Laws of 1840, which page contains the provision for a voluntary surrender of its charter by any bank in this State, and the remark in the opinion of the High Court of Errors and Appeals, in reference to evidence of a surrender of the charter in accordance with the general law of 1840, harmonize with the acceptance by the bank, in 1840, of the amendment of its charter.\\nHaving accepted the amendment of February 21, 1840 (Laws 1840, p. 63), all the \\\" rights, powers, and privileges\\\" of appellant \\\" ceased and ended\\\" on the twenty-first day of February,'1850, \\\" except so far as to enable said corporation to prosecute or defend suits then pending and undetermined.\\\" Sect. 5 of said act.\\nThe scire facias against the sureties on the bond of the receiver was not a suit pending and undetermined on the twenty-first day of February, 1850, but is a new suit, and the appellant had no capacity to institute it, unless it derived it from chap. 322 of Laws of 1859-60, approved February 10, 1860, p. 390 of Pamphlet Acts. Bank of Mississippi v. Duncan, 52 Miss. 740. That act granted to appellant the right to sue to collect \\\"the debts and choses inaction due to it,\\\" and if it was competent for the Legislature to confer the right, it existed when this suit was instituted. If, at the time of the passage of this act, there was any thing due to appellant to which creditors or stockholders could maintain a claim in any of the courts of this State, it was within the power of the Legislature to revive the bank for the purpose of collecting its assets, with a view to their distribution among such creditors and stockholders. But if the bank had ceased to exist by. the limitation of time in its charter as amended, and if by its extinction the rights of creditors and stockholders expired, it was not within the power of the Legislature to revive rights before extinguished, and authorize their enforcement. Davis v. Minor, 1 How. 183; Hooker v. Hooker, 10 Smed. & M. 599; Stewart v. Davidson, 10 Smed. & M. 351; Cooley's Const. Lim. 355.\\nIt was firmly settled by the decisions of the High Court of Errors and Appeals of this State, that banks in this State were subject to the operation of the common-law incidents to the dissolution of a corporation, i.e., the extinction of all its rights and liabilities, except in so far as changed by statute. Commercial Bank v. Chambers et al., 8 Smed. & M. 9; Coulter et al v. Robertson, 24 Miss. 278. Audit was expressly declared that the rights of stockholders were not preserved by the act of July 26, 1843, but were left to their fate as at common law, which was to perish. Coulter et al v. Robertson, 24 Miss. 278.\\nThe injustice of the common-law rule, and its \\\" hostility to the more enlightened spirit of the age,\\\" were urged upon the High Court of Errors and Appeals by counsel, who insisted that it was condemned by reason and the principles of modern and enlightened jurisprudence; but the firm answer of the court was, that, exceptas modified by statute, the common-law rule on this subject was in full force and operation in this State. We have no hesitation to declare our full concurrence with the views of counsel on this point, and our dissent from the view of the High Court of Errors and Appeals announced in the case of Coulter et al. v. Robertson, 24 Miss. 278.\\nBut the question is, Was it not well-settled law in this State, that the consequences visited by the common law upon the dissolution of a corporation were incident to the dissolution of banks in this State, except as otherwise expressly declared by statute? The affirmative of this question is indisputable; and, although it may be the true view that the rights of creditors and stockholders of appellant did exist, in equity, after dissolution of appellant by efflux of time, we are constrained by the adjudged cases in pur reports to declare that neither creditors nor stockholders of appellant had any rights, at law or in equity, after the dissolution of appellant. It was expressly declared in Coulter et al. v. Robertson, 24 Miss. 278, that the rights of stockholders were left to their fate at common law, and that it was only by virtue of the act of 1843 that the rights of creditors did not also perish. It is manifest that the act of 1843 has no application to appellant, because it in terms related only to banks against which any judgment of forfeiture should be rendered, and had no application to such as should be dissolved by time, without any judgment. No statute applied to them, and the common law, in all its absurdity, applied to them, according to the decisions - of the High Court of Errors and Appeals.\\nWe regard the rule, authoritatively announced by the High Court of Errors and Appeals as applicable to banks contemporary with appellant, as obligatory on us in declaring the effect of the dissolution of appellant.\\nDecree -affirmed.\"}" \ No newline at end of file diff --git a/miss/11260298.json b/miss/11260298.json new file mode 100644 index 0000000000000000000000000000000000000000..d4e06914e0d63a1579547117bec168bd1cbd87c9 --- /dev/null +++ b/miss/11260298.json @@ -0,0 +1 @@ +"{\"id\": \"11260298\", \"name\": \"William Walker, Plaintiff in Error, v. Charles W. Williams, Defendant in Error\", \"name_abbreviation\": \"Walker v. Williams\", \"decision_date\": \"1855-12\", \"docket_number\": \"\", \"first_page\": \"165\", \"last_page\": \"171\", \"citations\": \"30 Miss. 165\", \"volume\": \"30\", \"reporter\": \"Mississippi Reports\", \"court\": \"High Court of Errors and Appeals of Mississippi\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:31:55.997765+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William Walker, Plaintiff in Error, v. Charles W. Williams, Defendant in Error.\", \"head_matter\": \"William Walker, Plaintiff in Error, v. Charles W. Williams, Defendant in Error.\\n1. Decree in chancery: eeeect or. \\u2014 A decree of the Chancery Court, directing that the legal title to land of the defendant be divested out of him and vested in the complainant, is not, of itself, sufficient to vest the legal title in the complainant; the court must appoint a commissioner to convey, upon failure of the defendant to do so.\\n2. Equity: jurisdiction. \\u2014 The test, as to the jurisdiction of a court of equity, is, that the complainant has an equitable title, and if it appear from the face of the bill that the complainant has no title whatever, it seems that the decree of the court in his favor would be void for want of jurisdiction.\\n3. Yendor\\u2019s hen: rights oe assignee. \\u2014 The assignee of a promissory note given by the vendee of land (who has received a deed,) to secure the payment of the purchase-money, has no lien or equity on the land whatever.\\n4. Ejectment. \\u2014 If the defendant in ejectment is in possession of the premises, under a contract of purchase from the plaintiff, which has been rescinded, and the purchase-money paid by the defendant refunded, he cannot set up any outstanding title acquired by him against the title of his vendor; nor can he object, in this action, to his want of title.\\nIN error from tbe Circuit Court of Tishamingo county. Hon. P. T. Scruggs, judge.\\nOn the 28th of August, 1854, appellee instituted an action of ejectment in the Circuit Court of Tishamingo county, to recover the possession of the south-west quarter of section 20, township No. 3, range No. 8, east, situate in said county.\\nAt the September term, 1854, the defendant appeared and pleaded not guilty.\\nThe bill of exceptions shows, that on the trial the defendant admitted that he was in possession of the premises at the commencement of the suit.\\nThat plaintiff read to the jury a patent from the government to one Hogue, for the land in controversy, and a deed from Hogue to one Thompson, and a deed from Thompson to Susan Bow.\\nPlaintiff then read a transcript of the record of a suit in chancery, from the Circuit Court of said county, in a case of Daniel Saffarans v. Susan Bow \\u00a7\\u2022 Aaron Searcy, from which it appears that Searcy had purchased the land for Susan Bow, his sister, and had given a note to one Daniel Estil, who had assigned it to Saf-farans for a part of the purchase-money, to subject the land to the payment of which the bill was filed.\\nSearcy was served with process, and Susan Bow had regular notice by publication; and a decree\\u2019pro confesso was entered against them.\\nIn September, 1850, a decree was entered in the usual form, directing the land described in the bill to be sold, if the balance of the purchase-money was not paid within a fixed period of time.\\nThe money was not paid, and the land was sold by the commissioner, and purchased by the appellee. \\u25a0\\nIt appears that there was a mistake in the description of the land in the bill of complaint and throughout all the subsequent proceedings; it being described as the south-easi quarter, when it should have been the south-west quarter.\\nThe complainant, Saffarans, having discovered the mistake, filed a bill to the March term, 1852, to correct the mistake, &c.; and after Susan Bow had legal notice, by publication, of the pendency of this bill, a decree was, on the 25th of September, 1852, entered, divesting all title out of said Susan Bow, and vesting it in the complainant, Saffarans.\\nPlaintiff then read a deed from Saffarans to him for the land sued for, and rested his case.\\nDefendant below then introduced, as proof to show that Susan Bow had intermarried in Tennessee, with E. E. Boren,. a transcript from the county court of Henderson county, Tennessee. He also proved by one Scott, that Searcy was in possession of the land from the time of his purchase until his death, and that his son continued in possession until about the time defendant below went into possession.\\nIt appears that the defendant below was then introduced and sworn, and testified at considerable length, after which proof was offered of the contents of a title-bond, of which the defendant, Walker, had spoken in his testimony, which was objected to, and the objection sustained by the court. Defendant then read a deed for the land from E. E. Boren and Susan Boren to himself, and rested his defence. Plaintiff below then proved by Boone, that defendant Walker had purchased the land from Williams, the plaintiff, and went into possession of it; that afterwards it was discovered that a mistake had been made in the description of the land, and the contract was by agreement cancelled : that defendant knew that plaintiff had purchased the land, and that a bill was filed to correct the mistake.\\nThe jury found a verdict for the plaintiff below, and judgment was rendered accordingly.\\nDefendant moved for a new trial, which was denied, and he ex-, cepted, &c.\\nReynolds and Kinyon, for plaintiff in error.\\nIn the last case under which Saffarans claimed title, and through which Williams derived his title, there is not the shadow of a pre-tence that Saffarans ever had any title to the land in controversy, or any land whatever; and it is further to he remarked, that the note which he asserted was a lien on the land, had been previously satisfied by a sale of the south-east quarter of section 20, to Williams. Now admitting for a moment, for the sake of argument, that if Saffarans had title to the land, or was the real owner, he could under the act of 1841, come in to remove clouds, \\u2014 yet is it not apparent, that the party who does so, must allege the equitable title to be in himself; and that unless he does so, the decree, when made under a publication and without actual notice, is - absolutely void ?\\nSaffarans did not assert any title whatever, legal or equitable, in his bill; hut because in-a previous bill to enforce a vendor\\u2019s lien, in which he had obtained the sale of land, and satisfaction of his debt, there had been a mistake in the land, and he had obtained the sale of the wrong land, (he not being the purchaser,) he asks the court to take Susan Bow\\u2019s land and give it to him. The proceeding is attempted to be upheld under the act of 1841, and is, in my opinion, a burlesque on legal proceedings. Hutch. Code, 773.\\nBut even admit the decree was a valid 0110: no legal title was ever vested under it, so as to maintain an action of ejectment.\\nSaffarans was to bave execution of the decree, but no execution was ever taken: and if it bad, unquestionably Mrs. Bow could bave suspended it, by showing that Saffaran\\u2019s debt was paid, or by paying it. How does the Chancery Court vest a party with the legal title ? It cannot do so by a mere decree : it can only act by a commissioner, whom it shall appoint to convey the legal title, or by forcing the party holding the legal title to convey it.\\nThere being no mode pointed out in the statutes for transferring the legal title, it must be done in the mode pursued in the Chancery Court of England, by operating on the party himself, and forcing him by process of contempt or sequestration to convey, or by appointing a commissioner to do so.\\nBut in reference to the first record introduced by the plaintiff, which was the foundation of his whole title, the proceedings therein were null and void, because there was no service of process on Mrs. Bow, and no affidavit of Tier non-residence. Hutch. Code, 764.\\nIt will also be seen, that in each of the two records the proceedings against Mrs. Bow were void, because there was no such proof of publication as the statute requires: \\u2014 there being no copy of the notice certified by the proprietor or printer of the paper; and besides, the publication in each case was not for the time required by the order of the court. Hutch. Code, 866.\\nLastly, the title of the plaintiff below, was clearly ehampertous. JSllis v. Turner, 11 S. & M. 422; Reynolds v. Ingersoll, lb. 249; Sessions v. Reynolds, 7 lb. 130.\\nMiller and Kilpatricle, for defendant in error.\\nThe plaintiff below proved a good title from the United States government down to Susan Bow.\\nThe record of the chancery case shows, that the land in controversy was intended to be subjected, in the possession of Searcy and Susan Bow, for the payment of a portion of the purchase-money, but that a mistake was made in the description of the land.\\nThe amended bill was filed to correct the mistake.\\nThe decree under the amended bill, divested the title out of Susan Bow, and vested it in Saffarans.\\nSaffarans then qonveyed to the plaintiff below.\\nThe chain of plaintiff\\u2019s title Was thus shown to be complete.\\nThe proceedings in the chancery c\\u00e1se, seem to have been somewhat irregular; but the court had jurisdiction both of the parties and of the subject-matter.\\nThe decree was not void; and it cannot be attacked collaterally for irregularity merely. Barringer v. Boyd, 27 Miss. B. 473 ; Pech v. Woodlridge, 3 Day, It. 36.\\nThe proof offered by defendant below, to show that Susan Bow had intermarried with Boren, pending the chancery cause, was properly rejected by the court.\\nThe proof was clearly incompetent under the issue, and irrelevant.\\nIt did not tend to show that the decree was void..\\nThe deed from Boren and wife to the appellant was incompetent, or if competent, was entitled to no weight; for whatever title Susan Boren may have had, was divested before the date of the deed.\\nThe pretended purchase by Walker, the appellee, from Boren and wife, was void for champerty.\\nThe proof shows that Walker was put into possession by Williams, the appellant, under a contract of purchase, and that Walker had full knowledge of the claim of Williams, to the land in dispute.\\nWalker was in possession under Williams and as his tenant, at the time he took the deed from Boren and wife.\\nThe charges asked of the court appear to have been all given.\", \"word_count\": \"2388\", \"char_count\": \"13572\", \"text\": \"FisheR, J.,\\ndelivered the opinmn of the court.\\nThe plaintiff below brought this action in the Circuit Court of Tiskamingo county, to recover a tract of land in the possession of the defendant.\\nThe plaintiff appears to have proved a regular chain of title from the government, to one Susan Bow, through whom he claims title.\\nThe point for investigation is, whether he has acquired her title. For the purpose of establishing this fact, certain records were introduced, from the chancery side of the Circuit Court of said county, by one of which it appears, that one Daniel Saffarans filed a bill in said court, alleging that the south-east quarter of a certain section of land, constituted the consideration for the note described in the bill, and praying that the land might be subjected to what was supposed to be the vendor's lien, &c. After publication under the statute, Susan Bow, being a non-resident of the state, a decree was made according to the prayer of the bill, and a commissioner appointed, who sold the land, and made a deed to the plaintiff. It being afterwards discovered that it was the southwest quarter of the same section, instead of the south-east quarter, as described in the bill, which constituted the consideration of the note, Daniel Saffarans filed another bill, the purport and object of which, it is difficult to determine from the record. We conjecture, however, from the decree, that the bill was designed to correct the mistake as to the description of the land. By the decree it is ordered, that the title of the said Susan Bow be divested, and vested in the said Daniel Saffarans, and that the plaintiff have execution for the same. There is nothing in the record to show that this decree has ever been executed. Supposing the court to have had jurisdiction of the subject-matter, and of the person of the defendant, the decree would be regarded until reversed, as a complete adjudication of Saffarans' equity, but nothing more. It cannot of itself invest him with the defendant's legal title. This can only be accomplished by the act of the party, or by a commissioner appointed for that purpose by the court. It is, however, manifest from the face of the bill, that Saffarans had no interest whatever in the subject-matter. Without an interest, it is impossible to conceive, upon what principle a court of equity could entertain jurisdiction. The test as to the jurisdiction is, whether he had such an equitable title to the land, as would induce a court of equity to lend its aid, in restraining the defendant from arraying against him her legal title. So far from showing an equitable title, which would be recognized as superior in a court of equity to the defendant's title, and which would induce that court to interfere with sucb title, he shows conclusively that he never had even a shadow of right to subject the land to the payment of the note, as he holds it only as an assignee, and not as payee; the vendor's lien not being in its nature assignable, and not passing to the assignee.\\nIf the plaintiff's right to recover depended alone upon the title thus shown, we would feel bound to reverse the judgment, and to grant a new trial.\\nBut it is proved that the defendant entered into possession under the plaintiff, under a contract to purchase the land; that this contract was rescinded, and that money which was paid by defendant, refunded to him.\\nThem testimony, together with the admission, that the defendant was in possession at the commencement of the suit, was of itself sufficient to sustain the action, and all the objectionable testimony might with safety have been omitted.\\nThe judgment of the court below will therefore be affirmed..\"}" \ No newline at end of file diff --git a/miss/11262165.json b/miss/11262165.json new file mode 100644 index 0000000000000000000000000000000000000000..afc56cba8af9383ae23789fa228543c0f6065af7 --- /dev/null +++ b/miss/11262165.json @@ -0,0 +1 @@ +"{\"id\": \"11262165\", \"name\": \"James R. Kane, et al. vs. Samuel Burrus, et al. Administrators of Earl Clapp, deceased\", \"name_abbreviation\": \"Kane v. Burrus\", \"decision_date\": \"1844-01\", \"docket_number\": \"\", \"first_page\": \"313\", \"last_page\": \"325\", \"citations\": \"2 S. & M. 313\", \"volume\": \"10\", \"reporter\": \"Mississippi Reports\", \"court\": \"High Court of Errors and Appeals of Mississippi\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T17:59:38.710203+00:00\", \"provenance\": \"CAP\", \"judges\": \"Mr. Justice Thacher, having been counsel for the plaintiffs in the court below, gave no opinion.\", \"parties\": \"James R. Kane, et al. vs. Samuel Burrus, et al. Administrators of Earl Clapp, deceased.\", \"head_matter\": \"James R. Kane, et al. vs. Samuel Burrus, et al. Administrators of Earl Clapp, deceased.\\nWhere a judge of the circuit court signed a bill of exceptions, certifying that a motion, accompanied with affidavits, was. made at a previous term, though the record of the proceedings in the case of that term contain no evidence of the fact, yet this court is bound to receive and recognize the statements in the bill of exceptions as conclusive, and treat them as part of the record.\\nA motion for a new trial at law, may be continued, by the order of the court, until a term succeeding that at which the trial took place. Without a special order of continuance the motion would expire with the term.\\nWhere a verdict had been rendered upon a promissory note against the maker, in favor of the plaintiffs\\u2019 intestate, and the maker afterwards filed an affidavit of witnesses that they had heard the intestate acknowledge the payment of nine hundred dollars on the note, and filed also his own affidavit, showing that the evidence had come to his knowledge since the trial, and that he had used due diligence to discover it: Meld, that the defendant was entitled to a new trial.\\nIn error, from the circuit court of Adams county.\\nThe defendants in error sued the plaintiffs in the court below, upon a note payable to Earl Clapp, for twelve hundred dollars. The defendants plead non assumpsit,\\u2022 and payment. On the 10th day of December, 1841, the case was submitted to a jury, and verdict rendered by them in favor of the plaintiffs below for one thousand four hundred and forty-eight dollars, and judgment was entered accordingly.\\nThe record then recites as follows :\\n\\u201cAnd afterwards, at the May term, 1842, came the said defendants, by their attorneys, and made their motion for a new trial in this case, and thereupon, the court having heard said motion, it was ordered that said motion be overruled, and not granted. And afterwards, at the May term, 1842, aforesaid, the said defendants filed their bill of exceptions, to wit:\\n\\u201c State of Mississippi, ( In Circuit Court, Adams County. $ May Term, A. D. 1842,\\n\\u201c Delia Clapp, Administrator, A'c. v. ) T..\\u201e - \\u201e James JR.. Kane and Richard Henuessee. $ 1 xceP ions.\\n\\u201c Be it remembered, that after the trial of this cause, and the rendition of the verdict of the jury, which said cause was tried, and verdict rendered at the November term, A. D. 1841, of the court aforesaid, the said defendants, at the term last aforesaid, moved the court for a new trial in said cause, on the ground .of newly discovered evidence, and placed the motion for same upon the motion docket of said court, and in said motion referred the court for the grounds for granting same to \\u2018 Petition A,\\u2019 and \\u2018 Affidavits B and C,\\u2019 filed with the papers in said cause, which said motion was placed upon the motion docket aforesaid, immediately, that the causes and reasons for same came to the knowledge of said defendants, and were communicated to their said attorneys, which was a few days after the trial of said cause, and during the term last aforesaid, of said court, and which said \\u2018 Petition A,\\u2019 and \\u2018 Affidavits B and 0/ are as follows:\\n\\u201c State of Mississippi, ? In Circuit Court, Adams County, ) November Term, 1841.\\n\\u201cJames R. Kane, one of the defendants in the above stated case, and the principal in the note upon which this action is founded, states upon oath, that since said trial there has come to the knowledge of said parties defendant in this case, new and important evidence for the, defendants, the existence of which was at the time of the trial, and before, wholly unknown to said defendants, that said defendant Kane was fully aware of the facts hereinbefore stated, but was unacquainted with the existence of legal proof of same, that he made diligent inquiry, and industriously endeavored to discover and produce on the trial of said action, evidence of the facts hereinbefore set forth, but utterly failed therein, and that it was not until a day or two since, and since said trial, that the existence of evidence of said facts has come to his knowledge, that upon the discovery of same, he communicated to his counsel the fact of the discovery of said evidence, who recommended him to prepare affidavit of the truth of same, and to move this honorable court for a new trial in same, upon the ground of newly-discovered evidence, that said evidence is not of a cumulative character, and would produce a different result upon another trial. That the evidence is as follows:\\n\\u201c That one Joseph Guss will prove, that in the month of June, 1840, and shortly before the death of Earl Clapp, said Clapp stated to this affiant, that said James R. Kane had paid him, said Clapp, the sum of nine hundred dollars upon the note of twelve hundred dollars made by said Kane and Richard Hennessee, in favor of said Clapp, and sued on in this action.\\n\\u201c That John P. Morris will prove, that about three tyeeks previous to the death of Earl Clapp, mentioned in said action, the said Clapp stated, to him, that he, Clapp, had loaned to James R. Kane, upon the security of Richard Hennessee, the sum of twelve hundred dollars, in city warrants, and that he, said Clapp, believed, at the time of said conversation, that said Kane had paid nearly the whole amount of said indebtedness, and that there could not be much due from them.\\n\\u201cAnd affiant further states, that said Morris and Guss are residents of this county of Adams, and that he expects to obtain their presence at the next term of this court, to testify as above stated, he therefore prays a new trial, &c.\\n\\u201c James R. Kane.\\n\\u201c Sworn to, and subscribed before me, 20th Dec. 1841.\\n\\u201cSam\\u2019l. Wood, Clerk.\\n\\u201c By James D. Galbraith, D\\u2019y. Clerk.\\n(Affidavit B.)\\n\\u201c State of Mississippi, ) In Circuit Court, Adams County, \\\\ November Term, 1841.\\n\\u201c And Joseph Guss, being duly sworn, deposes and says, that in the month of June, 1840, and shortly before the death of Earl Clapp, said Clapp stated to this affiant, that James R. Kane had paid him, said Clapp, the sum of nine hundred dollars, upon the note of twelve hundred dollars made by said Kane and Richard Hennessee, in favor of said Clapp, and sued on, in this action.\\n\\u201cJoseph Guss.\\n\\u201c Sworn to and subscribed before me, this 18 th Dec. 1841.\\n\\u201cSam\\u2019l. Wood, Clerk.\\n\\u201c By James D. Galbraith, D\\u2019y. Clerk.\\n(Affidavit C.)\\n\\u201c State of Mississippi, ) In Circuit Court, Adams County, $ November Term, 1841.\\n\\u201c And John P. Morris, being duly sworn, deposes and says, upon oath, that about three weeks previous to the death of Earl Clapp, the said Earl Clapp stated to this affiant, that he, Clapp, had loaned to James R. Kane, upon the security of Richard Hennessee, the sum of twelve hundred dollars, in city warrants, and that he, said Clapp, believed, at the time of said conversation, that said Kane had paid nearly the whole amount of said indebtedness, and that there could not be much due from them. J. P. MoRRis.\\n\\u201c Sworn to, and subscribed, before me, this 18th Dec. 1841.\\n\\u201cSam\\u2019l. Wood, Clerk.\\n\\u201c By James D. Galbraith, D\\\\j. Clerk.\\n\\u201c That notice of the pendency of said motion was duly made arid given to the plaintiff and her.attorneys; that after the trial of said cause, and before the said motion for a new trial in same was called for a hearing and arguments, the Hon. C. C. Cage, who was the judge presiding at the time of the trial of said cause, and before the regular call of said motion in its due course, exchanged his circuit with the Hon. Y. T. Crawford, the judge of the eleventh judicial district of the state aforesaid, which said Hon. Y. T. Crawford thereby became, and was the presiding judge of the said circuit court of Adams county, at the term last aforesaid, at the time when the said motion was duly called for a hearing and argument of same, at which time, defendants and their attorneys, were ready to submit same to the judgment of the court. That the said Hon. Y. T. Crawford, upon said motion being called, as aforesaid, in due course, ordered the said motion to be continued until the next term of said court, to wit, this May term, A. D. 1842, and refused to hear said motion, declaring that he was unwilling to hear and decide a motion for a new trial in a cause which had not been tried on a judgment had while he was presiding as a judge. That at the present term of this court, to wit, this May term, A. D. 1842, the said Hon. C. C. Cage, presiding, the said motion continued as aforesaid, was again duly called in its order upon said motion docket, for a hearing of same, and the said Petition A,\\u2019 and \\u2018 Affidavits B and C,\\u2019 were read to the court; immediately on hearing which, and before anything further was said, done, offered or insisted, .either in favor or against said motion, the said court decided that it would not hear said motion discussed, declaring that same should have been decided at the term of said court when said motion was preferred, and placed upon the motion docket, and ordered and adjudged that said motion should be overruled, to which judgment and opinion of the court in refusing to hear said motion, and in overruling it, the said defendants, by their counsel, excepted, and prayed the court to sign and seal this their bill of exceptions to same, and that the same be duly filed and enrolled, and made a part of the record in this said case, which is accordingly done.\\n\\u201c ChaRles C. Cage.\\u201d [Seal.]\\nThe defendants sued out this writ of error.\\nFreeman and Reed, assigned the following for error :\\n. 1. That the court below erred in refusing to hear the motion for a new trial, at the November term, 1841, of the court, it being the term at which judgment was rendered.\\n2. That the court erred in continuing said motion until the next term thereafter.\\n3. That the court erred in not hearing said motion at the May term, A. D. 1842, it being th\\u00e9 term to which said motion was continued.\\n4. That the court erred in overruling said motion for a new trial, without hearing an argument.\\nReed, for plaintiffs in error.\\n1. The first error assigned is, that the court erred in refusing to hear the motion for a new trial, at the term at which judgment was rendered.\\nIt is the settled practice of nisiprius courts to entertain motions for arrest of judgment at the term at which judgment was obtained, and such has been the invariable rule in the courts of this state. A departure therefore from this rule, was manifestly erroneous.\\n2. The second error assigned is, that the court erred in continuing said motion. The court should have heard an argument, and sustained or overruled the motion. It is no excuse that when the motion came on to be heard, a different judge presided from one; before whom the judgment in this case was rendered, the court was one and the same; the mere exchanging of circuits by the judges does not change the character or authority of the court; the judges were created with the same jurisdiction, by the same law, and endowed with same powers. It was a temporary exchange made by virtue of the laws of the state, and intended to secure the ends of justice to litigants, and not for the purpose of depriving any party from being heard, or having full and ample relief. The judge who presided at the hearing of the motion, was fully authorized to entertain it, and by not doing so, committed an error which this court will undoubtedly correct. See H. & H. p. 481, for the statute giving circuit judges power to exchange circuits.\\n3. The third ground assigned for error is, that the court below, erred in not hearing said motion, at the subsequent term. It was not too late to correct the mistakes of the previous court, and certainly, by every rule of law, a party has a right to be heard by himself or counsel. The court by interrupting the counsel for the plaintiffs in error, and refusing to hear an argument, committed a palpable and open violation of the rights of the plaintiffs in error, and assumed an authority which is not conferred upon him, and which was in direct contradiction of every principle of law, and arbitrary in the extreme. We ask this court to check such assumption, and such evident violation of the rights of litigants.\\n4. The fourth ground assigned is, that the court erred in overruling said motion.\\nIn this case, there were affidavits filed with the motion for a new trial, setting forth, first, that the plaintiffs in error had discovered new testimony; second, that the testimony was mate rial, and lastly, the affidavits.of the witnesses as to what they would|testify, were also filed with the^motion, as appears of record.\\nThen upon the merits of this motion, the court below clearly erred. All the authorities go to show, that when a party has entered his motion for a new trial, on the ground of newly discovered evidence, the courts will grant a new trial on the parties filing affidavits of the fact, as well as what the evidence will be, that courts may judge of its materiality, and whether it is cumulative. See 2 Caines, 155. 3 Caines, 182. 18 Johnson, N. Y. 489. 7 Mass. 205. 15 Mass. 378. 2 Binney, 182. \\u25a05 Serg. & Rawle, 41. See also 2 Howard, 773, Hare v. Sproul.\\nBy looking into the record, the court will see that the plaintiffs in error, on the trial below, withdrew their plea of payment ; that therefore this newly discovered evidence is not cumulative, as it does not appear that any payment was attempted to be proved; on the contrary, the plea of payment was withdrawn, and the plaintiffs in error were forced to rely upon the general issue. The decision in Hare v. Sproul, in 3 Howard, is therefore conclusive as to this point.\\nIt is the province of courts to grant new trials, where they see that manifest injustice has been done. See Daniel v. Rose, 1 Nolt 1448. The record shows that at the May term, 1842, a motion for a new trial was over ruled, and a bill of exceptions taken. By the bill of exceptions it appears, that a few days after the rendition of the verdict, and during the same term of the court, the defendants below entered a motion on the docket for a new trial, on the ground of newly discovered evidence, and accompanied the motion by a petition, and the affidavits of the witnesses, which petition was sworn to by one of the defendants ; that notice of the motion was duly given to the counsel for the plaintiffs below, and that after the trial of the cause, and before the motion for a new trial was called for hearing, the judge who presided at the trial, interchanged his circuit with another judge, according to the provisions of the statute, who presided for the balance of the term, or at least until the motion for a new trial was called. But as he had not presided at the trial, he refused on that ground to hear and decide the motion, and ordered that it should be continued. At the May term, 1842, the judge, before whom the cause was tried had returned to his circuit, and the motion being again called in its order on the docket, he refused to hear and decide it on its merits, on the ground that it should have been determined at the previous term of the court, at which the trial had taken place, and accordingly he ordered that it should be overruled.\\nA preliminary objection is raised to the bill of exceptions on the ground that it is incompetent for a judge of the circuit court, by reciting in the bill of exceptions a fact which had transpired at a previous term, to make that fact a part of the record, when in the records of the previous term, such fact does not appear. Or, to present the question in a different form, that the judge, at May term, 1842, could not certify and make a part of the record facts which had transpired in 1841, before a different judge. The answer to this objection is obvious. A bill of exceptions is a judicial certificate of record, importing verity on its face. When, therefore, a circuit judge, by bill of exceptions, certifies to us a fact, we must take it as a fact. If it be in relation to something which did not transpire before him, then we must presume that he had proof of it. When the judge signed a bill of exceptions certifying to us that the de \\u2022fendants had made a motion at a previous term, accompanied by the affidavits, and that the judge refused to decide the motion because he had not presided at the trial, and\\u00f3n that ground continued it, we must suppose that he had evidence of the facts which he states; or I should rather say that we can indulge no supposition about it; it comes to us as a fact which requires ho presumption in its favor; and which admits of no evidence to question it. A circuit judge should never permit anything to be incorporated in a bill of exceptions, which did not actually transpire before him, or which is not fully proven, and we cannot presume a departure from duty. The counsel for the defendants in error has cited an authority which is decisive against him on this point. It is that \\\" matter of record is to be proved by the record itself.\\\" 3 Tomlins, 300. Or to use another maxim, a record proves itself. This is conclusive, when it is considered that a bill of exceptions is as much a record as any other part of the proceedings; so we regard this objection as unavailing.\\nBefore we can properly proceed to the merits of the application for a new trial, another question presents itself, which deserves some consideration. Indeed, this we presume, is the main question which inriuenced the mind of the court below in overruling the motion. It is this; can a motion for a new trial be continued from the term at which the verdict was rendered, until the next succeeding term I In the absence of fixed rules\\u00bb of practice for the government of our courts, we must determine this question by the English practice. Motions for new trials ,are denominated special motions, and on the showing of the party making the motion, a rule nisi is usually granted, calling on the opposite party to show cause against the motion. A day is assigned for making and deciding these motions, but they are frequently permitted to stand over for the accommodation of parties. And if the party who obtains the rule is not ready to support his motion, he may move to enlarge the rule till a future day in the same term, or until the next term, and when so enlarged they are set fora peremptory call. 1 Tidd's Practice, 501-505. This enlarging the rule is said to be very much a matter of coarse when it is the party's own delay, but where it is not, there must be some evident necessity for it. This is a direct authority in support of such continuance, when it is ordered by the court. Where there has been no such order, the motion would expire with the term of course, lb. 502. The only difference between a motion here and under the English practice is, that in our courts the motion is for a rule absolute in the first instance, but that makes no difference as to the power of the court to enlarge the time for hearing the motion. Whilst we do not doubt the power of the court to continue such a motion from one term to another, yet it is an unsafe practice when the application depends upon the evidence given at the trial. In such cases it would be impossible that such a motion could be determined, if the judge who presided at the trial should have interchanged his circuit with another judge. But when the application depends exclusively upon affidavits, this difficulty is in a great measure obviated.\\nThe motion in this case was made on the ground of newly discovered evidence, and although the judge may have overruled the motion under an impression that it could not be heard at that term, yet if on the merits the defendants are not entitled to a new trial, the judgment must be sustained. One of the defendants made an affidavit in support of the motion, in which he states that since the trial he has discovered new and import- , ant testimony, which was unknown to the defendants before the trial, although diligent inquiry and industrious efforts had been made to discover and produce the testimony on the trial, which efforts had utterly failed; and that it was not until a day or two before making the motion that he had discovered that such proof could be made. He also states in his affidavit that the witnesses will prove that the intestate of plaintiffs below, acknowledged in his lifetime the payment of nine hundred dollars on the note sued on, and that the witnesses are resident citizens of the counter of Adams, and that he could obtain their attendance at the next term of the court. The application is also accompanied by the affidavits of the witnesses fully establishing the acknowledgments made by the deceased of the pay ment of nine hundred dollars, as stated in defendants' affidavit. These affidavits seem to be sufficient to bring the defendants within the rule established by this case of Hare v. Sproul, 2 Howard, 772. He states that the evidence has come to his knowledge since the trial; that it was not owing to the want of diligence that it was not sooner discovered, and that the verdict 'would probably be different. The same rule is also laid down by the authorities cited by the counsel for the plaintiffs in error, and the decision in Guyott v. Butts, in 4 Wendell, 303, is very much in point. On the whole, therefore, we think a new trial should be granted.\\nMr. Justice Thacher, having been counsel for the plaintiffs in the court below, gave no opinion.\"}" \ No newline at end of file diff --git a/miss/11420727.json b/miss/11420727.json new file mode 100644 index 0000000000000000000000000000000000000000..1cf8d984acd74d4c513da7ed85fb86a1d64d8b1d --- /dev/null +++ b/miss/11420727.json @@ -0,0 +1 @@ +"{\"id\": \"11420727\", \"name\": \"Terry EVANS, Appellant, v. STATE of Mississippi, Appellee\", \"name_abbreviation\": \"Evans v. State\", \"decision_date\": \"2002-08-06\", \"docket_number\": \"No. 2000-KA-02018-COA\", \"first_page\": \"617\", \"last_page\": \"622\", \"citations\": \"823 So. 2d 617\", \"volume\": \"823\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T01:10:05.204895+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before KING, P.J., BRIDGES, and CHANDLER, JJ.\", \"parties\": \"Terry EVANS, Appellant, v. STATE of Mississippi, Appellee.\", \"head_matter\": \"Terry EVANS, Appellant, v. STATE of Mississippi, Appellee.\\nNo. 2000-KA-02018-COA.\\nCourt of Appeals of Mississippi.\\nAug. 6, 2002.\\nBilly Joe Gilmore, Lexington, attorney for Appellant.\\nOffice of the Attorney General by Deirdre McCrory, attorney for Appellee.\\nBefore KING, P.J., BRIDGES, and CHANDLER, JJ.\", \"word_count\": \"1798\", \"char_count\": \"10351\", \"text\": \"KING, P.J.,\\nfor the court.\\n\\u00b6 1. Terry Evans was convicted of possession of methamphetamine and marijuana by the Holmes County Circuit Court. Aggrieved by that conviction Evans has appealed and presented six issues for this Court's review.\\n\\u00b6 2. These issues may be stated as follows: (1) the failure of the trial court to exclude allegedly improperly seized evidence, (2) the failure of the trial court to allow an interlocutory appeal on the failure to suppress evidence, (3) the failure of the trial court to dismiss the charge, when the State allegedly did not prove its case beyond a reasonable doubt, and (4) the alleg edly repeated prejudicial remarks of the prosecutor.\\n\\u00b6 3. Finding no reversible error, this Court affirms Evans' convictions and sentences.\\nFACTS\\n\\u00b6 4. Evans was a commercial truck driver. According to Evans, he and Debra Smith were leaving Ontario, California, headed east. They were accompanied by a hitchhiker named \\\"Cindy\\\".\\n\\u00b6 5. According to Evans, as they neared Monroe, Louisiana, he became aware that Cindy had illegal drugs in her luggage. Upon his arrival at a truck stop in Jackson, Mississippi, Evans claims to have evicted Cindy from his truck, because he did not allow illegal drugs in it.\\n\\u00b6 6. Evans and Ms. Smith ate at the truck stop and then headed north on Interstate 55.\\n\\u00b6 7. Officer Bruce Gresham, of the Mississippi Public Service Commission, was doing random stops and safety inspections of commercial vehicles in Holmes County. Evans was among the persons stopped by Gresham. Evans was requested to exit the vehicle and produce his log book.\\n\\u00b6 8. Upon presentation of the book, Gresham noticed that Evans had failed to make entries in his book for several days. Gresham then inquired whether Smith was authorized to ride as a passenger in the truck, and requested permission to search the truck.\\n\\u00b6 9. When Evans refused to give written consent to search the truck, Gresham ordered Evans and Smith out of the truck, and placed Evans under arrest for failure to properly maintain his log book.\\n\\u00b6 10. After the arrest Evans and Smith were frisked for weapons, after which Gresham searched the seat area of the truck cab. He allowed Smith to return to the passenger seat, and then searched the sleeping area of the cab. There he discovered a blue zippered bag, which upon being opened contained what Gresham believed to be marijuana.\\n\\u00b6 11. Evans and Smith were then placed in the patrol car, and given the Miranda warnings. Ms. Smith stated that she had an \\\"eight ball of crank\\\" in her purse which had been purchased at the Jackson truck stop.\\n\\u00b6 12. Evans denied knowledge of any of the drugs.\\nISSUES ON APPEAL AND ANALYSIS\\n1. Failure, to suppress evidence.\\n\\u00b6 13. Evans argues that the search of his vehicle cab and seizure of the illegal drugs therein was impermissible. He contends that the search and seizure were beyond the scope of an officer's search incident to an arrest, or a protective search because the blue bag was neither in plain view nor within his arm's reach.\\n\\u00b6 14. The warrantless search and seizure of personal property by law enforcement officers is prohibited by the Fourth Amendment to the United States Constitution, and Art. 3, Section 23 of the Mississippi Constitution of 1890. There are exceptions to this rule. An officer may conduct a warrantless search (1) if granted permission, Loper v. State, 330 So.2d 265, 266 (Miss.1976), (2) under exigent circumstances, if probable cause exists, Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and (3) of a vehicle when making a lawful contemporaneous arrest. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).\\n\\u00b6 15. The right to search incident to a lawful arrest extends to any container, opened or unopened within the arrestee's immediate control. Rankin v. State, 636 So.2d 652, 657 (Miss.1994).\\n\\u00b6 16. At the suppression hearing, Officer Gresham testified:\\nI got him out of the truck, walked him around there, had him empty his pockets out, make sure there's no weapons, patted him down. I had Mrs. Smith empty her pockets out and pull her clothing tight in places I didn't want to touch and made sure she didn't have any weapons. I told them to stand where I could see them. At this point, he's under arrest. The search on the vehicle incident to an arrest, make sure there's no weapons or anything there. I get up in front, looked, didn't see anything. On the back sleeper birth [sic], I saw a small blue bag with Looney Tunes on it, picked it up, unzipped it, and I saw a green leafy substance that I believed to be marijuana.\\nWell, after I searched the front \\u2014 let me go back. It was cold that day.... Both of these people had on shirts and they were about to freeze. So I felt like I could let them sit up there in the seats because you can't \\u2014 in that particular style 18 wheeler, you can't really stand up in the cab.... So, I told them they could come sit inside the warm, because it was bitterly cold. And after I got them seated, I sat down on the bed and that's when I found the little blue plastic zipper bag, Looney Tunes on it, and inside I found \\u2014 I just looked at it and it was a green leafy substance that appeared to be marijuana and some small plastic baggies.\\n\\u00b6 17. The trial court then ruled:\\nThe Court finds that in that Mr. Evans \\u2014 a Class A license, that he was subject to the random check and therefore, the stop was legal. The Court also finds that the arrest of Mr. Evans that the officer had probable cause for the arrest. The question is whether or not there was probable cause for the search. The court finds from the testimony of the officer that consent, once he was requested to give written consent, the consent to search was withdrawn. However, the search \\u2014 the consent to search by Ms. Smith was not.withdrawn. Therefore, the Court finds that the search was not a consensual search as it relates to Mr. Evans.\\nWhether or not the officer had a right to search incident to arrest, in that \\u2014 Mr. Evans had been taken from the truck at that point, the Court finds that the officer was not in any danger of Mr. Evans grabbing a weapon or anything which is the reasons for the search incident to arrest.\\nAnother question, whether or not it was reasonable for the officer to place the defendants, Mr. Evans and Mrs. [Smith] back into the truck and by placing them back into the truck if he then \\u2014 if a search incident to arrest became necessary at that point.\\nBased on the circumstances and the testimony of the officer about the conditions and how they were dressed as to why he placed them back into the truck, he was there by himself with no other officers there, as opposed to placing them back into the truck or in his car, whether that was reasonable. The Court finds that under the circumstances that [it] was reasonable to place them back into the truck and, therefore, the search at that point incident to the arrest became necessary to search the sleeper area of the truck, and therefore, the items found at that point, the Court finds cannot be suppressed.\\n\\u00b6 18. In reviewing the denial of a motion to suppress, this Court looks to determine whether the trial court's findings, considering the totality of the circumstances, are supported by substantial credible evidence. Where supported by substantial credible evidence, this Court will not disturb those findings. Price v. State, 752 So.2d 1070 (119) (Miss.Ct.App.1999).\\n\\u00b6 19. Officer Gresham's testimony provided a substantial and credible basis for the trial court's denial of the suppression motion.\\n2. Failure to allow an Interlocutory appeal\\n\\u00b6 20. After the trial court declined to suppress the drug evidence, Evans requested a continuance, to pursue an interlocutory appeal. This request was denied. He now argues that that denial was error.\\n\\u00b6 21. As noted by the State, the decision to grant or deny a continuance is left to the sound discretion of the trial court. Kelly v. State, 778 So.2d 149(\\u00b6 15) (Miss.Ct.App.2000). Unless that discretion has been abused, this Court will not reverse the trial court's decision. Gooden v. State, 806 So.2d 322(\\u00b6 5) (Miss.Ct.App.2001).\\n\\u00b6 22. Evans has failed to demonstrate that the denial of his motion was an abuse of discretion.\\n3. Failure to dismiss\\n\\u00b6 23. Evans argues that the State failed to prove beyond a reasonable doubt that he had knowledge and possession of the drugs found in his vehicle. This argument is unsupported by any authority and appears to be, at best, a request to have this Court determine the weight and credibility to be accorded testimony. This Court declines to do so, as that is a matter within the province of the trier of fact, the jury. Smith v. State, 800 So.2d 535(\\u00b6 5) (Miss.Ct.App.2001). Unless this Court is convinced that the decision of the jury was not supported by substantial credible evidence, and to allow it to stand would sanction an unconscionable injustice, it will not set aside a jury verdict. Id. at (\\u00b6 4).\\n\\u00b6 24. The record clearly contains substantial and credible evidence upon which the jury, could, and did find Evans guilty. This Court sees no reason to disturb that decision.\\n4.Prejudicial remarks by the prosecutor\\n\\u00b6 25. Evans also uses this issue to argue the weight and credibility accorded testimony. That again is a matter for the trier of fact, and this Court declines to interfere with it.\\n\\u00b6 26. THE JUDGMENT OF THE CIRCUIT COURT OF HOLMES COUNTY OF CONVICTION OF COUNT I, POSSESSION OF METHAMPHETAMINE AND SENTENCE OF TEN YEARS, SEVEN YEARS SUSPENDED AND CONVICTION OF COUNT II, POSSESSION OF MARIJUANA, MORE THAN ONE OUNCE, AND SENTENCE OF THREE YEARS TO RUN CONCURRENTLY WITH THE SENTENCE IN COUNT I, AND SAID SENTENCES TO BE SERVED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HOLMES COUNTY.\\nMcMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR. IRVING, J., DISSENTS WITHOUT SEPARATE OPINION.\\n. \\\"Crank\\\" is the street name for a type of methamphetamine.\"}" \ No newline at end of file diff --git a/miss/11455630.json b/miss/11455630.json new file mode 100644 index 0000000000000000000000000000000000000000..88dd632f774fce1cc5b316b52fcd1c595d637e44 --- /dev/null +++ b/miss/11455630.json @@ -0,0 +1 @@ +"{\"id\": \"11455630\", \"name\": \"Dora Jean KOLIKAS, Appellant, v. James Richard KOLIKAS, Appellee\", \"name_abbreviation\": \"Kolikas v. Kolikas\", \"decision_date\": \"2002-04-16\", \"docket_number\": \"No. 2000-CA-01615-COA\", \"first_page\": \"874\", \"last_page\": \"883\", \"citations\": \"821 So. 2d 874\", \"volume\": \"821\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T01:06:52.082100+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before KING, P.J., THOMAS, and MYERS, JJ.\", \"parties\": \"Dora Jean KOLIKAS, Appellant, v. James Richard KOLIKAS, Appellee.\", \"head_matter\": \"Dora Jean KOLIKAS, Appellant, v. James Richard KOLIKAS, Appellee.\\nNo. 2000-CA-01615-COA.\\nCourt of Appeals of Mississippi.\\nApril 16, 2002.\\nRehearing Denied July 16, 2002.\\nPat Donald, Madison, attorney for ap-pebant.\\nRonald Louis Taylor, Southaven, attorney for appellee.\\nBefore KING, P.J., THOMAS, and MYERS, JJ.\", \"word_count\": \"4530\", \"char_count\": \"27053\", \"text\": \"KING, P.J.,\\nfor the court.\\n\\u00b6 1. On May 7, 1998, James Richard Kolikas obtained a decree of divorce from Dora Jean Kolikas in Marshall County, Mississippi. On January 8,1999, Ms. Koli-kas obtained a decree of divorce from Mr. Kolikas in North Carolina. Ms. Kolikas has appealed the order of the Marshall County Chancery Court which held that the divorce obtained by Mr. Kolikas in Mississippi was valid and the North Carolina decree was not entitled to full faith and credit, and asserts the following issues, which we quote verbatim from her brief: \\\"(1) Did the trial court commit reversible error in holding that the judgment of divorce entered by the Chancery Court of Marshall County, Mississippi is valid and binding on Dora J\\u00e9an Kolikas, even though the judgment was obtained without any process ever being served upon Dora Jean Kolikas, either personally or by publication? (2) Did the trial court commit reversible error in holding that the North Carolina divorce judgment was not entitled to full faith in the State of Mississippi, and by failing to decree the registration of such North Carolina divorce judgment?\\\"\\nFACTS\\n\\u00b6 2. Dora Jean Kolikas and James Richard Kolikas were married on March 26, 1971, in Fairfax, Virginia. The parties had one child, James Kolikas, born January 6, 1973, who is now an adult. In 1992, the parties resided in Wilmington, North Carolina. In July 1997, the parties separated. Mr. Kolikas left the marital home in North Carolina and moved to Byhalia, Mississippi.\\n\\u00b6 3. On February 20, 1998, Mr. Kolikas filed a complaint for divorce in the Chancery Court of Marshall County, Mississippi on the grounds of habitual cruel and inhuman treatment, and alternatively, irreconcilable differences. In the complaint, Mr. Kolikas asserted that Ms. Kolikas was a non-resident of Mississippi who resided at 7308 Chase Lane, Wilmington, North Carolina 28405. Mr. Kolikas published a summons to Ms. Kolikas in a Marshall County newspaper, but provided no further notice to her.\\n\\u00b6 4. In March 1998, Mr. Kolikas signed an authorization to disburse to Ms. Kolikas the proceeds from the sale of their North Carolina home.\\n\\u00b6 5. On April 6, 1998, Ms. Kolikas filed a complaint for divorce in the General Court of Justice District Court Division of New Hanover County, North Carolina. Mr. Kolikas took no action to defend the case in North Carolina.\\n\\u00b6 6. On May 7, 1998, Mr. Kolikas was granted a divorce in the Chancery Court of Marshall County, Mississippi. Mr. Kolikas testified that a copy of the divorce decree was faxed to Ms. Kolikas' attorney the following day. Mr. Kolikas stated that he mailed a copy of the divorce decree to Ms. Kolikas. Ms. Kolikas immediately responded by sending the document back saying \\\"it wasn't worth the paper it was written on.\\\"\\n\\u00b6 7. On May 11, 1998, the North Carolina court ordered Mr. Kolikas to pay $2,644 per month as post-separation support and attorney's fees in the amount of $360. A copy of this order is listed on the sheriffs return of service as having been served on Mr. Kolikas on May 18, 1998.\\n\\u00b6 8. On July 18, 1998, Mr. Kolikas married Reba (his first wife). Ms. Kolikas sent a card to the couple acknowledging their re-marriage.\\n\\u00b6 9. In August 1998, a contempt order and order for the arrest of Mr. Kolikas was entered for failure to pay the amounts ordered by the North Carolina court. The sheriffs return attached to this document listed it as having been served on Mr. Kolikas on June 30,1998.\\n\\u00b6 10. On January 8, 1999, Ms. Kolikas was granted a judgment of divorce in North Carolina. Under the North Carolina judgment, Mr. Kolikas was ordered to pay Ms. Kolikas $2,000 per month as permanent alimony to begin on February 1,1999 and $500 in attorney's fees.\\n\\u00b6 11. On December 7, 1999, Ms. Kolikas filed a petition with the Marshall County Chancery Court for registration of a foreign decree. On December 23, 1999, Mr. Kolikas filed his response to the petition and filed a motion for relief from judgment pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure. On January 10, 2000, Ms. Kolikas responded to this motion. The chancellor heard testimony on those matters in February of 2000. At the close of the hearing, the chancellor requested that both parties submit briefs to the court for further review of the matter.\\n\\u00b6 12. After receipt of the additional briefs on June 16, 2000, the chancellor sustained Ms. Kolikas' petition for registration of a foreign order, after which Mr. Kolikas filed a motion to alter or amend findings of fact and a motion for stay on June 26, 2000. On July 5, 2000, Mr. Koli-kas supplemented this petition with an affidavit by Tracy Russell (Ms. Kolikas' natural daughter) which stated that Ms.. Kolikas was informed of the pending divorce proceeding in Mississippi. That as a result of that knowledge, she had requested that Mr. Kolikas insure that her maiden name was restored. On July 10, 2000, Ms. Kolikas moved to strike the affidavit as improper and for failure to file within ten days of judgment pursuant to M.R.C.P. 59(e).\\n\\u00b6 13. The chancellor heard the various motions on August 11, 2000, and on August 22, 2000, entered an order which set aside the court's prior order dated June 16, 2000, sustaining the petition for registration of a foreign decree, and found that Ms. Kolikas was estoppel from questioning the validity of the Mississippi divorce. The chancellor denied Ms. Kolikas' motion for relief from judgment pursuant to M.R.C.P. 60(b), and the motion to strike the affidavit of Tracy Russell. The order declined to give full faith and credit to the North Carolina decree, and relieved Mr. Kolikas of the burden of complying with the North Carolina divorce decree.\\nISSUES AND ANALYSIS\\nSTANDARD OF REVIEW\\n\\u00b6 14. In reviewing a domestic relations case, a chancellor's factual findings will not be disturbed unless the court's actions were manifestly wrong, the court abused its discretion, or applied an erroneous legal standard. Wright v. Wright, 737 So.2d 408(\\u00b65) (Miss.Ct.App.1998). For questions of law, our standard of review is de novo. McCubbin v. Seay, 749 So.2d 1127(\\u00b6 5) (Miss.Ct.App.1999).\\nI.\\nDid the trial court commit reversible error in holding that the judgment of divorce entered by the Chancery Court of Marshall County, Mississippi is valid and binding on Dora Jean Kolikas, even though the judgment was obtained without any process ever being served upon Dora Jean Kolikas, either personally or by publication?\\n\\u00b6 15. Ms. Kolikas contends that the chancery court committed reversible error by holding that the divorce judgment in Mississippi was valid and binding on her even though it was obtained without proper service of process. Ms. Kolikas was a non-resident of Mississippi, upon whom service of process was attempted pursuant to Rule 4(c)(3)(A) & (C) of the Mississippi Rules of Civil Procedure. Rule 4(c)(3)(A) & (C) of the Mississippi Rules of Civil Procedure requires the following:\\n(A) If the defendant in any proceeding in a chancery court, or in any proceeding in any other court where process by publication is authorized, by statute, be shown by sworn complaint or sworn petition, or by a filed affidavit, to be a nonresident of this state or not to be found therein on diligent inquiry and the post office address of such defendant be stated in the complaint, petition, or affi davit, or if it be stated in such sworn complaint or petition that the post office address of the defendant is not known to the plaintiff or petitioner after diligent inquiry, or if the affidavit be made by another for the plaintiff or petitioner, that such post office address is unknown to the affiant after diligent inquiry and he believes it is unknown to the plaintiff or petitioner after diligent inquiry by the plaintiff or petitioner, the clerk, upon filing the complaint or petition, account or other commencement of a proceeding, shall promptly prepare and publish a summons to the defendant to appear and defend the suit. The summons shall be substantially in the form set forth in Form 1-C.\\n(C) It shall be the duty of the clerk to hand the summons to the plaintiff or petitioner to be published, or, at his request, and at his expense, to hand it to the publisher of the proper newspaper for publication. Where the post office address of the absent defendant is stated, it shall be the duty of the clerk to send by mail (first class mail, postage prepaid) to the address of the defendant, at his post office, a copy of the summons and complaint and to note the fact of issuing the same and mailing the copy, on the general docket, and this shall be the evidence of the summons having been mailed to the defendant, (emphasis added)\\n\\u00b6 16. The rules on service of process are to be strictly construed. Birindelli v. Egelston, 404 So.2d 322, 323-24 (Miss.1981). If they have not been complied with, the court is without jurisdiction unless the defendant appears of his own volition. American Cable Corp. v. Trilogy Communications, Inc., 754 So.2d 545(\\u00b6 7) (Miss.Ct.App.2000).\\n\\u00b6 17. If a defendant does not voluntarily appear to a cause against him, he cannot be gotten into court except in the manner laid down by law. He is under no obligation to notice what is going on in a cause in court against him, unless the court has gotten jurisdiction of him in some manner recognized by law. Burns v. Burns, 133 Miss. 485, 491, 97 So. 814, 815 (1923). Mr. Kolikas published a summons by publication in Mississippi, but neither he nor the chancery clerk attempted to provide Ms. Kolikas any further notice of the complaint for divorce. Mr. Kolikas listed Ms. Kolikas' physical address in his complaint. He contends that, because he listed her address in the complaint, he complied with the requirements of the above mentioned rules.\\n\\u00b6 18. The chancellor properly determined that service of process had not been effected under Rule 4(c)(3)(A) & - (C). While finding a lack of process, the chancellor, in reliance on Scribner v. Scribner, 556 So.2d 350 (Miss.1990), held that Ms. Kolikas was estopped from challenging the court's jurisdiction.\\n\\u00b6 19. The chancellor's reliance on Scribner was misplaced. While it is true that the Mississippi Supreme Court estopped Patsy Scribner from contesting the issue of jurisdiction, it did so because she had taken an affirmative action in reliance on the validity of the divorce decree. That affirmative action was to get married. Scribner, 556 So.2d at 353.\\n\\u00b6 20. There is nothing in the record before this Court which shows any affirmative action taken by Ms. Kolikas in reliance on the validity of the Mississippi divorce. This reason is therefore an insufficient basis upon which to estop her from contesting jurisdiction.\\n\\u00b6 21. Likewise, there is nothing in the record which suggests that Ms. Kolikas caused Mr. Kolikas to rely on the Mississippi divorce to his detriment. Mr. Koli- kas was the moving force behind the Mississippi divorce and was accordingly responsible for its proper prosecution.\\n\\u00b6 22. The record does reflect that, upon receipt of a copy of the divorce decree, Ms. Kolikas immediately expressed to Mr. Ko-likas her belief that the Mississippi decree was invalid.\\n\\u00b6 23. Estoppel requires that the party to be estopped (1) have acted affirmatively in reliance on the validity of the decree, and (2) to have caused the other party to detrimentally rely upon the validity of the decree. Kelly v. Shoemake, 460 So.2d 811, 823 (Miss.1984). Neither of those things is present in this case.\\n\\u00b6 24. The dissent suggests that Mr. Ko-likas' bigamous marriage is the fault of Ms. Kolikas and should therefore preclude her attack upon the validity of the Mississippi decree. Such a suggestion has no basis in fact or reason. Mr. Kolikas, in consultation with his attorney, chose what actions to take in pursuit of a divorce. As such, it was his obligation, not that of Ms. Kolikas, to ensure that his actions complied with the appropriate statutes and court rules. He did not do so, and cannot place the blame for this failure upon Ms. Kolikas.\\n\\u00b6 25. Nor has Mr. Kolikas presented substantial credible evidence that Ms. Ko-likas benefitted in reliance upon the divorce decree.\\n\\u00b6 26. There is some suggestion that Ms. Kolikas obtained property as a result of the Mississippi decree. However, nowhere in the Mississippi decree does it specifically identify any property to be received by Ms. Kolikas as a result of the Mississippi decree, nor is there any written documentation of any benefit agreed to in anticipation of divorce.\\n\\u00b6 27. The lack of written documentation of benefits agreed to in anticipation of divorce cannot be discounted. One of the grounds for divorce cited by Mr. Kolikas was irreconcilable differences, pursuant to \\u00a7 93-5-2 of the Mississippi Code Annotated (Rev.1994). There are several requirements of \\u00a7 93-5-2 which touch upon the suggestion of an agreed benefit accruing to Ms. Kolikas as a result of the divorce.\\n\\u00b6 28. First, \\u00a7 93-5-2 requires personal service or a written waiver of process.\\n\\u00b6 29. Second, it requires that the parties execute a written agreement as to property division, or in its absence, they by written agreement consent to a division of property by the court.\\n\\u00b6 30. There is nothing in the record to document the existence of any of these required written agreements. At all times Mr. Kolikas was represented by counsel. There is no reason to believe that Mr. Kolikas' counsel was unaware of the requirement for a written property division agreement.\\n\\u00b6 31. The failure to obtain such an agreement, would tend to belie the suggestion that there was an agreed division of property in anticipation of divorce, and render infirm, the suggested basis for es-toppel.\\n\\u00b6 32. Proper service upon a non-resident defendant requires that notice be published and, a copy of the summons and complaint mailed to the defendant's last known address. While there was publication there was no mailing. Process is not complete until a copy has been mailed. Williams v. Kilgore, 618 So.2d 51, 56 (Miss.1992). The chancery court had not acquired personal jurisdiction over Ms. Kolikas due to lack of proper service of process based on the Mississippi Rules of Civil Procedure previously mentioned. Accordingly, we reverse and remand this case to the Marshall County Chancery Court for further proceedings consistent with this holding.\\nII.\\nDid the trial court commit reversible error in holding that the North Carolina divorce judgment was not entitled to full faith in the State of Mississippi, and by failing to decree the registration of such North Carolina divorce judgment?\\n\\u00b6 38. Ms. Kolikas contends that the chancery court committed reversible error by holding that the North Carolina divorce judgment was not entitled to full faith and credit in Mississippi and by failing to decree the registration of the North Carolina divorce judgment. In the court's order on rehearing denying petition for registration of foreign order, the chancellor determined that:\\n\\\"[T]he evidence shows that Dora Jean was certainly aware of the divorce proceedings in Mississippi and even relied upon them to obtain the proceeds from the sale of the couple's home as well as all other property in North Carolina. Therefore, based on the case of Scribner v. Scribner, 556 So.2d 350 (Miss.1990), Dora is estopped from asserting that the Mississippi Divorce Decree is invalid since she relied upon it . [T]his Court must find that Dora, having relied upon the Mississippi divorce decree to obtain North Carolina marital property and the restoration of her maiden name, is es-topped to deny the validity of the Mississippi Divorce Decree.\\\"\\nThe chancellor further determined that the North Carolina court was not advised about the Mississippi divorce decree nor the fact that Ms. Kolikas had received in excess of $19,000 from the sale of the North Carolina marital property prior to entering its orders and judgments. The chancellor found that \\\"the North Carolina orders and judgment for post separation support and alimony were based on, at best, incomplete representations to the North Carolina court and thus are not entitled to full faith and credit in the State of Mississippi....\\\"\\n\\u00b6 34. Article IV, \\u00a7 1 of the United States Constitution requires that full faith and credit be given to the judicial proceedings of sister states. However, those proceedings are only entitled to full faith and credit where the rendering court properly has subject matter and personal jurisdiction. Cappaert v. Walker, Bordelon, Hamlin, Theriot and Hardy, 680 So.2d 831, 834 (Miss.1996).\\n\\u00b6 35. Mr. Kolikas raised the issue of lack of jurisdiction by the North Carolina court. The chancellor did not address this issue, finding it by inference to be unnecessary. However, our disposition of this case requires that a determination be made as to the existence of proper jurisdiction by the North Carolina court.\\n\\u00b6 36. There is evidence in the record that Ms. Kolikas attempted to have Mr. Kolikas served with the complaint and summons for the North Carolina divorce action. The summons with attached complaint was issued on April 14, 1998, and sent to the Marshall County Sheriffs Department by Ms. Kolikas' attorney with a request that it be served upon Mr. Kolikas. It appears that Ms. Kolikas may have attempted service pursuant to North Carolina Rule of Civil Procedure 4(j)(l)(a), which provides:\\n(j) Process \\u2014 Manner of Service to Exercise Personal Jurisdiction. In any action commenced in a court of this State having jurisdiction of the subject matter and grounds for personal jurisdiction as provided .in G.S. 1-75.4, the manner of service of process within or without the State shall be as follows:\\n(1) Natural Person. Except as provided in subsection (2) below, upon a natural person by one of the following:\\n(a) By delivering a copy of the summons and of the complaint to him or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.\\n\\u00b6 37. The testimony regarding service of process is murky. Marshall County Deputy Sheriff Walter Bell, whose signature appears upon the proof of service, indicated he was unable to say that he had served notice of the North Carolina divorce proceedings upon Mr. Kolikas. He indicated that it was possible he might have given the documents to someone other than Mr. Kolikas.\\n\\u00b6 38. Mr. Kolikas testified that his job kept him away from home, and Deputy Bell had not served him with notice of the North Carolina divorce. He did acknowledge that Deputy Bell had arrested him suggesting this to be his only official contact with Deputy Bell.\\n\\u00b6 39. Mr. Kolikas' grandson testified that while visiting the home one day when his grandparents were away, he was served some papers by the Marshall County Sheriffs office for Mr. Kolikas, his grandfather. While uncertain as to the year, he recalls that it was in the spring of the year, which is when the North Carolina divorce papers were supposedly served. He also noted that these papers were not given to Mr. Kolikas.\\n\\u00b6 40. If in fact the summons and complaint were served upon the grandson, process was improper because North Carolina Rules of Civil Procedure allow process to be left with a resident of the.home, but not a visitor.\\n\\u00b6 41. Because this Court finds that the Chancery Court of Marshall County lacked sufficient process to grant Mr. Kolikas' divorce and the issue of the jurisdiction of the North Carolina court was not addressed, it deems it appropriate to reverse and remand this issue.\\n\\u00b6 42. Upon remand, Mr. Kolikas can have the opportunity to attain proper service upon Ms. Kolikas, or if necessary, establish the lack of jurisdiction of the North Carolina court.\\n\\u00b6 43. THE JUDGMENT OF THE CHANCERY COURT OF MARSHALL COUNTY IS REVERSED AND REMANDED FOR SUCH FURTHER PROCEEDINGS AS ARE CONSISTENT WITH THE TERMS OF THIS OPINION. COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE APPELLEE.\\nBRIDGES, THOMAS, LEE, IRVING, AND MYERS, JJ., CONCUR. CHANDLER, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J., AND BRANTLEY, J. McMILLIN, C.J., NOT PARTICIPATING.\"}" \ No newline at end of file diff --git a/miss/11536838.json b/miss/11536838.json new file mode 100644 index 0000000000000000000000000000000000000000..cdaeffa3c21eec51b4b9370012bf31c5eaadbbef --- /dev/null +++ b/miss/11536838.json @@ -0,0 +1 @@ +"{\"id\": \"11536838\", \"name\": \"Jeffrey JONES a/k/a Jeffrey Earl Jones a/k/a Jeff Jones, Appellant, v. STATE of Mississippi, Appellee\", \"name_abbreviation\": \"Jones v. State\", \"decision_date\": \"1999-07-20\", \"docket_number\": \"No. 97-KA-00781-COA\", \"first_page\": \"476\", \"last_page\": \"486\", \"citations\": \"754 So. 2d 476\", \"volume\": \"754\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T18:46:09.482754+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE KING, P.J., BRIDGES, AND LEE, JJ.\", \"parties\": \"Jeffrey JONES a/k/a Jeffrey Earl Jones a/k/a Jeff Jones, Appellant, v. STATE of Mississippi, Appellee.\", \"head_matter\": \"Jeffrey JONES a/k/a Jeffrey Earl Jones a/k/a Jeff Jones, Appellant, v. STATE of Mississippi, Appellee.\\nNo. 97-KA-00781-COA.\\nCourt of Appeals of Mississippi.\\nJuly 20, 1999.\\nRehearing Denied Oct. 26, 1999.\\nCertiorari Denied Jan. 27, 2000.\\nThomas M. Fortner, Robert M. Ryan, Andre\\u2019 De Gruy, Jackson, Attorneys for Appellant.\\nOffice of the Attorney General by Charles W. Maris, Jr., Attorney for Appel-lee.\\nBEFORE KING, P.J., BRIDGES, AND LEE, JJ.\", \"word_count\": \"5440\", \"char_count\": \"32901\", \"text\": \"BRIDGES, J.,\\nfor the Court:\\n\\u00b6 1. Appellant Jeffrey Jones and his co-defendant, Daryl L. Naylor, were indicted for \\\"wilfully, unlawfully, feloniously and knowingly possessing] cocaine with intent to distribute same\\\" by a Hinds County grand jury. The indictment was later amended to reflect an enhancement to the crime charged because Jones had three firearms in his possession at the time of the alleged offense. A jury in the Circuit Court of the First Judicial District of Hinds County found Jones guilty as charged, and the judge sentenced him to fifteen years in the custody of the Mississippi Department of Corrections, with twelve years suspended, three years to serve, and three years of supervised probation.\\n\\u00b6 2. Jones appeals, presenting for our review three assignments of error:\\n1. THE TRIAL COURT COMMITTED PLAIN AND REVERSIBLE ERROR BY ALLOWING DETECTIVE STEVE RENFROE TO RENDER EXPERT TESTIMONY BEFORE THE TRIAL- JURY WITHOUT HAVING BEEN OFFERED, TENDERED OR ACCEPTED AS AN EXPERT IN ANY FIELD IN VIOLATION OF RULE 702, MISSISSIPPI RULES OF EVIDENCE.\\n2. THE TRIAL COURT ERRED IN REFUSING TO QUASH THE JURY VENIRE WHERE EIGHTEEN OF THE THIRTY-EIGHT MEMBERS HAD CLOSE TIES TO THE PROSECUTION.\\n3. THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUSTAIN A CONVICTION FOR POSSESSION WITH INTENT TO DISTRIBUTE.\\n\\u00b6 3. We resolve these issues adversely to Jones and affirm the jury's verdict.\\nI. FACTS\\n\\u00b64. We recite the facts from the perspective consistent with the verdict.\\n\\u00b6 5. On December 19, 1995, police entered Jones's home at 2311 Woodlawn Street for the purpose of executing a search warrant for controlled substances. As officers approached the house intending to surprise the occupants and prevent disposal of evidence, they noticed a person peering from the window and realized that they had been observed. Four officers charged through the back door at the same time that four officers entered the front door, and the officers loudly identified themselves as police officers.\\n\\u00b6 6. Upon entering, officers at the rear of the house heard the sound of a toilet flushing. Detective Steve Wilson entered the bathroom where he found Naylor, fully clothed, standing in the bathtub. Jones, wearing only underwear, seemed to be trying to flush the contents of a plastic bag in the toilet. As Detective Wilson attempted to move Jones away from the toilet, Jones jumped toward a window above the tub. Detective Wilson stepped into the bathtub to try to prevent Jones from tossing the plastic bag out of the window. He then instructed Officer Steve Renfroe to go outside and retrieve the bag. Meanwhile, Officer Richard Nations entered the bathroom and assisted Detective Wilson in securing the suspects. At some time during that effort, the shower was activated, and the four men in the bathtub were drenched with water.\\n\\u00b6 7. From the ground outside the window, Sergeant Renfroe recovered a soggy plastic bag containing a white substance. During a thorough search of the residence, officers recovered a cable bill confirming Jones as the occupant of the residence; two loaded handguns; a shotgun; ammunition for the three weapons; two sets of walkie talkies; a metal detector; cash money; and scales. The substance in the plastic bag recovered by Sergeant Renfroe was determined to be crack cocaine.\\nII. TRIAL\\nA. PRE-TRIAL MOTIONS\\n\\u00b6 8. Prior to trial, the defendants moved to dismiss the indictment, asserting that the enhancement language resulted from prosecutorial vindictiveness after the defendants refused to accept a plea bargain, and a motion in limine to prevent the prosecution from mentioning that officers recovered guns from the residence. The motions were overruled. The defense moved to prohibit the prosecution from presenting evidence about a confidential informant, and the court overruled the motion but reserved further ruling on the issue until the prosecution sought to adduce that evidence.\\n\\u00b6 9. The co-defendants requested additional peremptory challenges, asserting that requiring them to agree upon only six was unconstitutional. The court overruled that motion as well as Jones's motion to sever. The court sustained Jones's motion in limine to exclude evidence of other alleged crimes regarding a possibly stolen weapon and possession of drug paraphernalia by an unnamed occupant of Jones's house at the time of the search. However, the court noted that the State might be allowed to present such evidence if it became an integral part of the proof.\\nB. JURY SELECTION\\n\\u00b6 10. In a bench conference after the court's initial voir dire, Jones moved to quash the jury panel on the grounds that the potential jurors might be confused by one venire member's statement that her brother was convicted of a similar crime and sentenced to two years' incarceration. Noting that the defendants could be sentenced to as long as sixty years, Jones asserted that the jurors might not take their responsibility seriously enough. The motion was overruled.\\n\\u00b6 11. During voir dire, the defense asked the venire about connections to law enforcement. Five potential jurors were previously or currently law enforcement officers. Five others had close relatives who were in law enforcement. Several members of the venire noted that they knew people in the police department, sheriffs office, the Federal Bureau of Investigation, or the Internal Revenue Service. One venire member explained that, as a city official, she voted on the salaries of all employees of the City of Jackson. When asked whether they could be fair in the case in spite of law enforcement connections, the venire members collectively indicated that they could be fair.\\n\\u00b6 12. The defense also asked whether any potential jurors were related to someone in the field of prosecution. One person had a cousin in a district attorney's office, and one person had a daughter who interned in a district attorney's office in Georgia. One venire member was a lawyer but not a prosecutor, and several others were employed by, or related to, non-prosecutor lawyers.\\n\\u00b6 13. Citing Mhoon v. State, 464 So.2d 77 (Miss.1985), Jones moved to have the veni-re quashed because he estimated that eighteen of the thirty-eight potential jurors had close ties to law enforcement. The court overruled the motion and proceeded with jury selection. The defendants objected that they should not be required to agree on peremptory challenges. After the court noted that the defendants only used five of the six peremptory challenges allowed, Jones explained that using the sixth strike would have brought up another juror whom they wanted to challenge.\\n\\u00b6 14. The court consulted the attorneys to be sure that the defendants were informed of the plea bargain offer, the maximum sentence of sixty years, and the requirement that they serve eighty-five per cent (85%) of the sentence. The jury was seated. During the State's opening argument, the defense objected on the grounds of relevancy to the State's reference to the firearms and drug paraphernalia recovered inside Jones's house. Because the drug paraphernalia supposedly did not belong to either defendant, Jones moved for a mistrial. The motion was overruled.\\nC. THE STATE'S CASE\\n\\u00b6 15. Officer Steve Wilson, a detective with the Jackson Police Department assigned to the Jackson-Hinds Drug Enforcement Unit, testified that a city search warrant was obtained based upon information that controlled substances could be found in Jones's residence. After a team was assembled to execute the warrant, the officers divided into two groups. Detective Wilson, Officer Richard Nations, Sergeant Steve Renfroe, and Officer John Norman were assigned to enter the house through the rear door while Officers Amundson, McGowan, Cox, and McCurley would enter the front door. The officers would try to take the inhabitants by surprise so that they would have no opportunity to destroy contraband or to arm themselves. By entering both doors simultaneously, the officers could secure the inhabitants quickly and prevent them from exiting the house.\\n\\u00b6 16. Detective Wilson said that the inhabitants of Jones's house became aware that the police were approaching when an individual looked out the front window. According to standard procedure, the officers announced their purpose upon entering the residence. As he entered, Detective Wilson heard \\\"what sounded like a toilet flushing\\\" and suspected that contraband was being destroyed. He pushed open the partially closed door to the bathroom and observed the suspects. Naylor, fully clothed, was jumping into the bathtub behind the partially drawn curtain, and Jones, wearing only his underwear, was kneeling on the floor in front of the toilet. Detective Wilson described the scene as follows:\\nHe [Jones] had his right hand in the toilet shaking a plastic bag. He had his left hand on the handle trying to make the toilet flush, and the toilet tank hadn't filled back up with water from when I heard it flush the time before, therefore, it wouldn't flush, and he was just shaking the handle and shaking the bag in the toilet like this.\\n\\u00b6 17. Detective Wilson said that he tried to pull Jones away from the toilet, but Jones \\\"continued to try to flush the commode and shake the bag.\\\" When Detective Wilson pushed him away from the toilet, Jones jumped into the bathtub toward the open window, and Detective Wilson tried to pull Jones away from the window by his necklace. Jones \\\"stuck his hand through the window and dropped the plastic bag out the window that he had been trying to shake [loose] in the toilet.\\\"\\n\\u00b6 18. As Officer Nations helped him restrain the subjects, Detective Wilson instructed Sergeant Renfroe to go outside and retrieve the plastic bag from under the window, which was seven or eight feet above the ground. Sergeant Renfroe yelled from outside when he recovered the bag and returned with the plastic bag which Detective Wilson described as \\\"full of water as if it had come out of the toilet.\\\" It contained a white substance that appeared to be soggy crack cocaine. Detective Wilson explained that while he, Officer Nations, and the two defendants were in the bathtub, \\\"water started pouring down out of the shower, but that was after the bag had been dropped out the window.\\\"\\n\\u00b6 19. Detective Wilson described the layout of the house and said that the officers secured three people in the house besides Jones and Naylor. Detective Wilson identified the .380 from Davis Industries, the .88 Taurus, and the 12-gauge Mossburg shotgun which were recovered from the bedroom during the search. Specifically, the shotgun was found under the bed, and the .38 caliber Taurus was under a roll-away bed mattress at the head of the bed. Detective Wilson identified the ammunition for the three guns and testified that the handguns were loaded. He found a wallet in the bedroom closet which included Naylor's identification, and other officers recovered identification from Jones. Detective Wilson identified the defendants as the two subjects who were apprehended.\\n\\u00b6 20. On cross-examination, Detective Wilson said that the officers entered the house with their weapons drawn and that he aimed his gun at Naylor in the bathtub as he was trying to prevent Jones from dropping the plastic bag out of the window. He did not recall seeing Mr. Naylor holding any hair clippers. He clarified that the ammunition for the shotgun was recovered from a car outside the house. In response to Jones's inquiry, Detective Wilson stated that he had been working in narcotics \\\"[o]ff and on for about twelve years.\\\" After Jones asked Detective Wilson's to answer, based upon his experience, questions about crack cocaine, Detective Wilson explained that crack can be sold by rock size or by weight.\\n\\u00b6 21. Detective Wilson detailed that the officers conducted the search about 12:30 p.m. when there was plenty of light. He noted that the inventory list of items recovered from the house did not include any hair clippers. He testified that the scales removed from the house were commonly used by narcotics users and dealers and that other items recovered could also be characterized as \\\"tools of the narcotics trade.\\\"\\n\\u00b6 22. The State called Sergeant Steve Renfroe. He stated that he had been with the Jackson Police Department for almost twenty years and that he spent the last six years as a narcotics officer. His testimony regarding the approach to the house was substantially similar to Detective Wilson's account, and he also identified the defendants as the individuals secured in the bathroom. He recalled recovering the plastic \\\"bag of what appeared to be crack cocaine dripping with water, and he identified the bag. He described the area under the window where he located the bag as \\\"packed down, raw dirt\\\" like a path with heavy foot traffic.\\n\\u00b6 23. Sergeant Renfroe explained that he recorded each item recovered, where it was found, and which officer found it. He identified two Motorola walkie-talkies and two Radio Shack walkie-talkies found in a bedroom dresser and explained that they are common items used by narcotics vendors to allow a \\\"lookout\\\" to communicate with the dealer as he is selling drugs. Sergeant Renfroe identified the scales recovered from the kitchen and described the scales as \\\"the most elementary, basic, essential tool of narcotics transactions.\\\"\\n\\u00b6 24. Sergeant Renfroe identified a cable bill addressed to Jones at the address that was searched. He identified the Garrett metal detector that was recovered from Jones's home and testified that such devices are commonly used to detect weapons by waving it over the body and that drug dealers use such devices to screen people for weapons or communications devices as they enter a drug sale location. He specified that the particular metal detector in evidence was on the couch in the front room of the house. During cross-examination, Sergeant Renfroe noted that they only recovered things that might be connected with possession or trafficking of drugs and that he would not have recovered hair clippers or anything that does not have evidentiary value.\\n\\u00b6 25. Detective Richard Nations testified about his role in serving the search warrant. His account was substantially similar to those of the two officers who testified previously, and he also identified the defendants as the two suspects in the bathroom. He identified the $748 removed from Naylor's pocket at the police station, and he said that he also recovered $85 from a pair of jeans in the bedroom of the house, noting that it is common to find large sums of money when serving warrants like the one the officers served at Jones's residence. He testified that he did not think that the shower was running before he got into the bathtub with Detective Wilson and the two suspects.\\n\\u00b6 26. Finally, John Dial, a criminalist for the Jackson Police Department crime laboratory, testified regarding his testing of the white substance in the plastic bag. After being qualified as an expert, Dial explained his testing methods and described the difference between crack cocaine and powdered cocaine hydrochloride. He utilized a modified Scott test, infrared spectrometry, and an ion trap detector to determine that the sample was cocaine with a high moisture content.\\n\\u00b627. The State rested its case-in-chief. Naylor's motion for a directed verdict was overruled. Jones moved for a directed verdict asserting an absence of proof of intent to distribute and claiming that the State proved no more than simple possession. The court overruled the motion.\\nD. THE DEFENSE'S CASE\\n\\u00b628. Naylor's co-defendant presented one witness, Naylor's aunt, who testified that she asked Naylor to hold $750 for her the day before the search. Naylor did not testify.\\n\\u00b6 29. After Naylor rested his case, Jones presented his own testimony in his defense. According to Jones, he was in the bathroom getting a haircut, and Naylor was holding the hair clippers when an officer came in, grabbed Jones, and threw him to the floor. Jones said that an officer kept instructing him to \\\"spit it out,\\\" hitting him, and kicking him. He claimed that the beating resulted in a damaged nerve in his mouth and that he and Naylor were never in the bathtub.\\n\\u00b6 30. Jones explained that he used the scales that were confiscated to weigh jewelry when he worked at a pawn shop, and he said that a friend who was a security guard, Anthony Adams, left the metal detector at Jones's house after he stayed with him for a while. Jones testified that he bought the Mossburg shotgun at a pawn shop two or three months prior to the search and that it was still in the box with no butt assembled to the gun when officers recovered it. He bought the Radio Shack walkie-talkie set at the mall just \\\"for fun,\\\" and he found the non-functional Motorola walkie-talkies in the other side of his duplex with no battery pack.\\n\\u00b6 31. On cross-examination, Jones explained that he did not present Anthony Adams as a witness because he \\\"didn't know they were going to try to bring it up like that.\\\" He testified that he bought the Mossburg for self-defense and that the receipt was in the box which the officers confiscated. Jones admitted that he had no evidence of the beating except that Naylor saw it occur and that his lip was swollen at the time. After acknowledging that his lip did not appear to be swollen in the photograph taken at the police station, Jones said that he adjusted his mouth so that the swelling was not obvious in the picture. He never filed a complaint about the beating or sought treatment for his alleged injury.\\n\\u00b6 32. Jones asserted that the officers testified falsely because they found no evidence in his home. He said that the officers actually took the plastic bag, which contained only salt, from his kitchen cabinet. When pressed on the question of whether the officers lied, Jones responded, 'Well, they were wrong. They were wrong. They told me . not to just say police officers are lying, so, you know, I don't want to say that.\\\" He explained that \\\"they\\\" meant his family and his lawyer.\\n\\u00b6 33. The defense rested. The defendants renewed their motions for directed verdicts which were again denied. After instructions were read to the jury, the parties presented closing arguments, during which Jones addressed the jury.\\nE. THE VERDICT AND POST-TRIAL MOTIONS\\n\\u00b6 34. The jury found both defendants guilty as charged with possession of cocaine with intent to distribute. The judge rendered sentences after reviewing pre-sentence reports and hearing character witnesses. Jones was sentenced to fifteen years, with twelve years suspended, three years to serve in the custody of the Mississippi Department of Corrections, and three years of supervised probation.\\nIII. REVIEW, ANALYSIS, AND RESOLUTION OF THE ISSUES\\n\\u00b6 35. We will address Jones's issues in the order in which they arose during the proceedings below.\\nA. Did the trial court err in refusing to quash the jury venire where members had ties to the prosecution?\\n\\u00b6 36. Jones relies on the decision of Mhoon v. State, 464 So.2d 77 (Miss.1985), in asserting that the venire presented a \\\"statistical aberration\\\" requiring reversal. In Mhoon, twelve of the thirty-nine potential jurors were policemen or were related by blood or marriage to a current or former police officer. Id. at 80. Of those twelve, six sat on the jury after, and the jury foreman was a uniformed policeman. Id. at 82. The Mhoon court noted that the judge could have allowed additional peremptory challenges, increased the size of the venire, or sustained challenges for cause in order to diminish the prejudicial effect of a venire with so many ties to law enforcement. Id. at 81.\\n\\u00b6 37. Although Jones asserts in his statement of this issue that many of the potential jurors had close ties to the prosecution, he argues that many jurors had ties to law enforcement. By Jones's count, eighteen members of the venire claimed close ties with law enforcement; however, we find in the record only ten potential jurors who were in law enforcement or were related to law enforcement officers. Some venire members mentioned that they knew someone in the police department or the sheriffs office, but they were not related. The potential jurors collectively affirmed that they could be fair in this case in spite of connections to law enforcement.\\n\\u00b6 38. The case at hand is further distinguishable from Mhoon. Of the ten potential jurors with \\\"close ties\\\" to law enforcement, only two served on the jury, as opposed to six in Mhoon. Id. at 80. One juror in the present ease had a brother who was a police officer in another state, and one worked for the Mississippi Department of Corrections. Also, the defense used only five of its six peremptory challenges, whereas the defense in Mhoon used every peremptory challenge. Id.\\n\\u00b6 39. The term \\\"law enforcement\\\" was applied in the present case to police officers, corrections officers, campus police officers, security guards, sheriffs deputies, highway patrol officers, volunteer sheriffs, FBI agents, and IRS agents. Given the breadth of the term \\\"law enforcement\\\" as it was applied during voir dire in the case sub judice, it would be difficult to find a venire without several close ties to \\\"law enforcement.\\\" As noted in Shell v. State, 554 So.2d 887, 891 (Miss.1989) rev'd on other grounds in Shell v. Mississippi 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990), \\\"The [Mhoon ] Court was careful to point out . that the mere presence of law enforcement officials in a jury pool was not per se improper, provided the prospective juror was otherwise qualified and was not peremptorily struck by either party.\\\"\\n\\u00b6 40. Distinguishing this case from Mhoon v. State and opining that Jones was not .denied an impartial jury, we affirm the trial court as to this issue.\\nB. Did the trial court commit reversible error by allowing Detective Steve Renfroe to render expert testimony without having been tendered or accepted as an expert in violation of Rule 702, Mississippi Rules of Evidence?\\n1. Standard of Review\\n\\u00b6 41. Rulings regarding the admission or suppression of evidence are within the broad discretion of the trial judge and will not be reversed absent an abuse of that discretion. Sumrall v. Mississippi Power Co., 693 So.2d 359, 365 (Miss.1997).\\n2. Analysis\\n\\u00b6 42. Typically, if a defendant fails to timely object to an issue at trial, the issue is waived for appeal. Cavett v. State, 717 So.2d 722 (\\u00b6 21) (Miss.1998); Hall v. State, 691 So.2d 415, 418 (Miss.1997); McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). The trial court will not be held in error on a legal point that was never presented for its consideration. Chase v. State, 645 So.2d 829, 846 (Miss.1994). Jones failed to object at trial, but he raised this issue in his motion for j.n.o.v. the verdict or for new trial. He now seeks review of this issue as \\\"plain error.\\\"\\n\\u00b6 43. Although Jones asserts that Detective Renfroe presented expert testimony, we note that Detective Renfroe did not give an opinion as contemplated in Mississippi Rule of Evidence 702. Instead, he answered the questions based upon his experience as a narcotics officer. Detective Renfroe explained his determinations that certain evidence was relevant to the charges against the defendants and should be recovered during the search. He explained why the scales, the walkie-talkies, and the metal detector had evidentiary value. Similarly, Detective Wilson answered Jones's questions during cross-examination based upon his experience:\\nJONES'S ATTORNEY: How long have you been working in narcotics?\\nDETECTIVE WILSON: Off and on for about twelve years.\\nJONES'S ATTORNEY: Your experience in dealing with crack cocaine, the sale of crack cocaine, can you tell us crack cocaine is sold by the rock or the piece; is that correct?\\nJones also asked Detective Wilson whether, in his experience, he had observed instances in which crack cocaine was sold by weight.\\n\\u00b6 44. Detective Renfroe did not have to be qualified as an expert to testify regarding his personal knowledge. He testified about the walkie-talkies based upon his experience:\\nPROSECUTOR: Detective, during the course of your employment as a narcotics officer have you ever seen items like what's been marked State's Exhibits 10 and 11 [walkie-talkies] before?\\nDETECTIVE RENFROE: Many times.\\nPROSECUTOR: Do you have personal knowledge as to how those particular items are used in the furtherance of drug or narcotics distribution activities?\\nDETECTIVE RENFROE: Yes, I do. Most of the time these radios are used for communicating devices for lookout to the main body of the narcotics vendors.\\nPROSECUTOR: Would you characterize it as common or uncommon finding these types of items in a particular house where narcotics activity is present?\\nDETECTIVE RENFROE: I would say that these are very common items for the more sophisticated narcotics vendors.\\nDetective Renfroe responded to similar questions about hand-held scales and metal detectors, testifying regarding the personal knowledge which he gleaned from working as a narcotics officer.\\n\\u00b6 45. Discerning no plain error, we refrain from reversing the trial court, and we decide this issue adversely to Jones.\\nC. Was the evidence presented at trial insufficient to sustain a conviction for possession with intent to distribute?\\n1. Standard of Review\\n\\u00b6 46. On review, reversal on the issue of sufficiency of the evidence will only be permitted \\\"where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.\\\" Wetz v. State, 503 So.2d 803, 808 (Miss.1987). The reviewing court should review the trial court's ruling on the last occasion that the sufficiency of the evidence was challenged before the trial court. Id. at 808 n. 3. All credible evidence must be appraised in the light most favorable to the verdict and must be accepted as true. Id. at 808.\\n2. Analysis\\n\\u00b647. In the present case, Jones challenged the sufficiency of the evidence in his motions for a directed verdict and in his motion for judgment notwithstanding the verdict. On appeal, Jones asserts that the following standard of review applies:\\nTaking all of the credible substantive evidence as true, it cannot be said with any degree of certainty that a reasonable, fair minded and properly charged jury would not have acquitted Jones on the charge of possession of a controlled substance with the intent to distribute. The State failed to meet its burden of proof by proving each and every element of the charged offense beyond a reasonable doubt. Tait v. State, 669 So.2d 85, 88 (Miss.1996); Smith v. State, 646 So.2d 538, 542 (Miss.1994); May v. State, 460 So.2d 778, 781 (Miss.194[1984]); Glass v. State, 278 So.2d 384, 386 (Miss.1973).\\n\\u00b6 48. The appropriate standard requires that the court view all credible evidence in the light most favorable to the verdict and consider such evidence as true. Wetz, 503 So.2d at 808. (emphasis added). In contrast, Jones's purported standard would require the court to examine the evidence in the light most favorable to the defendant.\\n\\u00b649. In the record, we find evidence in the law enforcement officers' testimony which contradicts Jones's version of events during the execution of the search warrant and which contradicts Jones's explanation for the physical evidence recovered from his house. The Mississippi Supreme Court has explained that \\\"the testimony of a single witness is sufficient to sustain a conviction though there may be more than one witness testifying to the contrary.\\\" Nash v. State, 278 So.2d 779, 780 (Miss.1973); see Ragland v. State, 403 So.2d 146, 147 (Miss.1981). It is the function of the jury to resolve any conflicts in the evidence presented and to decide which witnesses seem more credible. Melton v. State, 723 So.2d 1156 (\\u00b6 30) (Miss.1998); Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979). As for the sufficiency of the evidence, \\\"[i]t is enough that the conflicting evidence presented a factual dispute for jury resolution.\\\" Id.\\n\\u00b6 50. Because the testimony in this case presented a factual dispute, and because the credible evidence viewed in the light most favorable to the verdict was sufficient to raise a jury question, we find that the evidence was sufficient to overcome the motions for directed verdict and judgment notwithstanding the verdict. Furthermore, we opine that reasonable and fair-minded jurors would not be required to find Jones not guilty.\\n2. Weight of the evidence\\n\\u00b6 51. Although Jones does not precisely address the weight of the evidence in stating his assertion of error, he suggests in his argument that the verdict was against the weight of the evidence. Therefore, we review the weight as well as the sufficiency of the evidence.\\n\\u00b6 52. After assessing the weight of the evidence, the trial court may, in its discretion, grant a new trial if it determines that a new trial is required in the interest of justice or if the verdict is contrary to law or the weight of the evidence. URCCC 10.05; Wetz, 503 So.2d at 812. The reviewing court will uphold the trial judge's decision unless convinced that the trial court abused its discretion. Wetz, 503 So.2d at 812. As the trial court evaluates whether the verdict is contrary to the overwhelming weight of the evidence, it must accept as true all evidence favorable to the verdict for the State. Turner v. State, 726 So.2d 117 (\\u00b629) (Miss.1998); Van Buren v. State, 498 So.2d 1224, 1229 (Miss.1986). Only if the jury's verdict is \\\"so contrary to the overwhelming weight of the evidence that to allow it to stand would be to sanction an unconscionable injustice\\\" should a new trial be granted. Wetz, 503 So.2d at 812; Malone v. State, 486 So.2d 360, 366 (Miss.1986); Groseclose v. State, 440 So.2d 297, 300 (Miss.1983); Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983).\\n\\u00b6 53. The State presented evidence that Jones was in the process of disposing of cocaine when the officers entered his home to serve the search warrant. Officers testified that Jones had a particular variety of items typically used in the drug trade and frequently recovered from narcotics dealers. The officers gave substantially similar accounts of the search, and the only testimony which contradicted the charge in the indictment was Jones's own testimony.\\n\\u00b6 54. On review, this Court finds that the verdict was not so contrary to the applicable law or the weight of the evidence that it results in \\\"unconscionable injustice.\\\" Therefore, we affirm the trial court's denial of the motion for new trial.\\nIV. CONCLUSION\\n\\u00b6 55. This Court observes that Jones was not denied an impartial jury and that the venire and jury in this case were distinguishable from that in Mhoon v. State upon which Jones relies. Furthermore, we detect no plain error in allowing Detective Renfroe to testify based upon his personal knowledge.\\n\\u00b6 56. Because the evidence presented a factual dispute for the jury to resolve, directed verdict and JNOV were properly denied. Likewise, the jury's verdict was not against the overwhelming weight of the evidence to such an extent that reversal was required to avoid unconscionable injustice, and the circuit court appropriately denied Jones's motion for new trial.\\n\\u00b6 57. Finding no merit to Jones's assignments of error, we affirm the verdict and sentence of the circuit court.\\n\\u00b6 58. THE JUDGMENT OF THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY OF CONVICTION OF POSSESSION OF COCAINE WITH INTENT TO DISTRIBUTE AND SENTENCE TO FIFTEEN YEARS, WITH TWELVE YEARS SUSPENDED, THREE YEARS TO SERVE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND THREE YEARS OF SUPERVISED PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO HINDS COUNTY.\\nMcMILLIN, C.J., KING AND SOUTHWICK, P.JJ., DIAZ, IRVING, LEE, PAYNE, AND THOMAS, JJ., CONCUR.\\nMOORE, J., NOT PARTICIPATING.\\n. Jones testified in his defense that Naylor was using hair clippers to cut Jones's hair in the bathroom when the police entered the house.\\n. Only two potential jurors had arguably close ties to a prosecutor.\\n. The question of whether a verdict is against the overwhelming weight of the evidence arises when the party asserts that error in a motion for new trial. In his motion for JNOV, Jones contended, \\\"The verdict is decidedly and strongly against the weight of the evidence and is contrary to law and the principles of justice and equity.''\"}" \ No newline at end of file diff --git a/miss/11754666.json b/miss/11754666.json new file mode 100644 index 0000000000000000000000000000000000000000..313c90b2fa42737a5763e9d321a9aaf9bb2672fe --- /dev/null +++ b/miss/11754666.json @@ -0,0 +1 @@ +"{\"id\": \"11754666\", \"name\": \"Corwin TURNER a/k/a Corky Turner v. STATE of Mississippi\", \"name_abbreviation\": \"Turner v. State\", \"decision_date\": \"1998-08-06\", \"docket_number\": \"No. 96-KA-00957-SCT\", \"first_page\": \"117\", \"last_page\": \"132\", \"citations\": \"726 So. 2d 117\", \"volume\": \"726\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:37:55.575273+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before PITTMAN, P.J., and BANKS and WALLER, JJ.\", \"parties\": \"Corwin TURNER a/k/a Corky Turner v. STATE of Mississippi.\", \"head_matter\": \"Corwin TURNER a/k/a Corky Turner v. STATE of Mississippi.\\nNo. 96-KA-00957-SCT.\\nSupreme Court of Mississippi.\\nAug. 6, 1998.\\nRehearing Denied Jan. 7, 1999.\\nRoy J. Farrell, Tupelo, for Appellant.\\nOffice of the Attorney General by Dewitt T. Allred, III, for Appellee.\\nBefore PITTMAN, P.J., and BANKS and WALLER, JJ.\", \"word_count\": \"8898\", \"char_count\": \"51272\", \"text\": \"PITTMAN, Presiding Justice,\\nfor the Court:\\n\\u00b6 1. Corwin \\\"Corky\\\" Turner was convicted by a jury in the Circuit Court of Lee County on August 22, 1996, of the crime of DUI resulting in death. On September 3, 1996, the trial judge sentenced Turner to a term of twenty years imprisonment. On September 5, 1996 Turner timely filed his Notice of Appeal after the trial court's denial of his Motion for JNOV or in the alternative for a new trial.\\nSTATEMENT OF THE FACTS\\n\\u00b6 2. The record reveals that on the morning of July 2, 1995, Rodney Sheffield and his wife, Sherrie, were traveling on Highway 6 toward Tupelo around 10:30 a.m. when they came upon a green pick-up truck weaving along the highway in such a manner that the Sheffields suspected the driver was impaired. Rodney followed the truck closely enough to take down the license plate number and to observe the three occupants of the truck. Rodney described the driver of the pick-up as having long, shoulder-length hair. He described the person seated in the middle of the pick-up as smaller than the driver. He thought this middle occupant could possibly be a child. Rodney gave no description of the third occupant who was seated in the passenger seat. Rodney testified that July 2, 1995 was a beautiful, clear day. Rodney followed the pick-up truck until it turned right onto Richmond Road, where it almost ran off the road. Rodney stopped at a small grocery store adjacent to Richmond Road where he saw a police car. He reported what he had seen to the officer. Rodney was unable to identify Turner, in court, as the driver of the pick-up truck.\\n\\u00b6 3. Sherrie Sheffield, Rodney's wife, also testified at trial. She testified that the driver of the pick-up appeared to be impaired, and that she saw the driver take a drink from a bottle as he drove. Sherrie described the driver as a \\\"white male\\\" with \\\"long hair that was unkempt, real wild-looking.\\\" She testified that she could only see the top of the head of the middle occupant, and that she did not remember anything unusual about the passenger side occupant. Sherrie was unable to identify Turner, in court, as the driver of the pick-up truck.\\n\\u00b6 4. James Stuard was the officer at the grocery store that the Sheffields spoke to. He was an officer with the Plantersville Police Department. Stuard got into his patrol car and advised the Lee County Sheriffs Department of the situation. The sheriffs department advised Stuard that they had no officers in the area, and asked him to leave his city limits and stop the vehicle. Stuard left in pursuit of the green pick-up truck. He testified that just as he got about four miles out of Plantersville, he saw dust flying in a curve. As he approached, he noticed that the vehicle matched the description given to him by the Sheffields. He also noticed that the green pick-up had collided with another vehicle. Stuard testified that he arrived on the scene of the accident at approximately 10:30 a.m.\\n\\u00b6 5. When Stuard arrived the pick-up was lying on the passenger side with the three occupants stacked on top of one another. One person was on bottom which was on the passenger side door, the second person was on top of him, and the third person was on top of the second. The individuals were not able to get out of the truck. Stuard testified that the three individuals in the pick-up were elbowing each other and shoving around. They could move their hands, but not their bodies. He described them as \\\"crammed in like sardines\\\", and stated there was very little room in the cab. The person in the middle of the stack was yelling, \\\"Get off of me, Corky.\\\" Stuard described the man with the \\\"scraggly hair and a beard\\\" as being on top of the pile, and closest to the steering wheel. Stuard recognized the individual who was closest to the steering wheel as Corky Turner. Stuard described Turner on that day as having shoulder length hair that was scraggly and unclean looking. He was unable to identify Turner in court saying, \\\"I couldn't recognize him right now. He would have to have his beard and his hair back to the way he had it that day for appearance. I cannot recognize him.\\\" Stuard testified that the top of the pick-up had to be cut off in order to remove the three individuals. Stuard noticed several beer cans in the cab and the back of the pick-up, as well as an opened bottle of vodka. When Stuard ran the tag number, he found that the green pick-up belonged to Terry Moore, who was one of the three individuals in the pick-up at the time of the accident.\\n116. Stuard checked on the occupants of the second vehicle and found that the passenger was conscious, but the driver was not. He checked the driver's pulse and found that he did not have one, nor was he breathing. The driver of the second vehicle was Randy West and the passenger was Betty West. Stuard was relieved at the scene as soon as the Lee County Sheriffs Department arrived.\\n\\u00b6 7. David Payne, who at the time was the fire chief of the Plantersville Fire Department, went to the scene of the wreck after hearing it reported on his radio. When he arrived at the scene, someone was doing chest compressions on Mr. West. Payne proceeded to the pick-up. He saw three individuals in the pick-up. He described their positions saying that, \\\"there was one halfway in, halfway out, and then there was two on\\u2014 completely on the inside of it.\\\" He described the individual that was halfway out of the truck as partially baldheaded. The one on top of him had darkish hair with a mustache, and the person on top had \\\"long, kind of light-colored hair and kind of a thin beard, kind of long.\\\" He had learned the names of the occupants of the truck. Payne testified that Leon was under the truck, Terry was in the middle, and Corky was on top. He stated that Terry kept talking to Corky. He was shouting, \\\"Corky, get off of me.\\\" Payne described Corky Turner as being the person closest to the steering wheel. Payne testified that the three individuals could not have rearranged themselves in the truck because they could barely move. Payne was unable to recognize Turner in court. Payne noticed several cans of beer, both full and empty, at the scene as well as an opened bottle of vodka.\\n\\u00b68. Sherry Riner, a volunteer with the Plantersville fire department, arrived on the scene at approximately 10:30 a.m. She testified that she went to the West's vehicle to help. Mr. West was unresponsive, and someone was performing CPR on him. She assisted with the CPR. When the medics arrived, she went to the pick-up truck where David Payne was working. She noticed that the three occupants of the truck were stacked on top of one another. She did not think that it would have been possible for the individuals to swap positions. She testified that the person on the bottom was bald, the one in the middle had dark hair, and the person on top \\\"was a tall, slender guy, sort of longish hair, scraggly beard, grayish hair .\\\" She also said that the guy in the middle kept calling the one on top of the stack \\\"Corky\\\". The person on top of the stack was closest to the steering wheel. Riner could not identify Turner in court.\\n\\u00b6 9. Vicki Westmoreland was a paramedic who responded to the scene at approximately 10:30 a.m. She saw two vehicles. One was off the road and one was turned up on its side. Vicki went to the white car to help out. Other personnel were working on the driver, Mr. West, so Vicki proceeded to the truck to determine if a helicopter or other backup help was needed. Backup was called including a helicopter. Vicki returned to the white car to help with Mr. West. She determined that he had very serious injuries. As emergency personnel worked on him, he died. Vicki then returned to the truck. She described the occupant that was trapped between the truck and the ground as balding. She described the person on top of the stack as having \\\"long, scraggly hair and a beard.\\\" The person in the middle had dark hair and a mustache, and was smaller than the other two occupants. The person on top of the stack with the long scraggly hair and beard was closest to the steering wheel. Vicki stepped on a vodka bottle by the truck, and noticed the odor of alcohol from the three people in the truck. She also saw beer cans in the area. Vicki testified that the top of the truck had to be cut off in order to rescue the three occupants. Vicki stated that the three men could move their arms around, but they could not move their bodies. She did not witness any of them swapping positions, and did not think that it would be possible. Vicki learned that the person closest to the steering wheel was named Corky Turner. She was unable to identify Turner in court.\\n\\u00b6 10. Tommy Owens was another paramedic at the scene. When he arrived at the pickup truck, he noticed the positions of the individuals in the truck. He testified that the person on the bottom was bald or slightly bald. He described a black headed person with a black beard as being in the middle. He stated that the person on top was tall and thin with stringy hair and a shaggy beard. The person on top was the closest to the steering wheel. Corky was the person closest to the steering wheel.. Owens rode in the ambulance to the hospital with Corky Turner and Terry Moore. Owens asked them if they had been drinking. Turner said that he had and that he was an alcoholic. Owens also asked who had been driving the pick-up. Turner gave no response. Owens testified that the occupants were moving their aims and legs, but not their complete bodies.\\n\\u00b6 11. Terry Moore, one of the occupants of the truck, testified at trial. Moore had known Turner for about three and one half years. He identified Turner in court. Moore said that he had never seen Turner without a beard or long hair prior to trial. Moore testified that he was with Turner and Leon Umfress on Sunday, July 2, 1995. Moore testified that on the Wednesday prior to that Sunday, he had gotten off work and had started drinking. On Thursday, he got up and decided not to go to work. He went to Turner's house and picked him up. Then, they picked up Leon Umfress. The three rode around drinking: On Friday, Moore was also with Turner and Umfress. The three men went to Fulton to pick up Moore's paycheck. Afterwards, they went to the bank. Approximately two blocks from the bank, Moore was pulled over by a policeman, and charged with DUI. Moore spent the night in jail. Umfress drove Moore's pick-up home. On Saturday morning, Umfress and his father picked Moore up' at the Itawamba County Jail. That afternoon, Moore and Um-fress picked up Turner. Moore was driving. Turner did some of the driving on that Saturday afternoon. After picking up Turner, the three proceeded to Dago's store, where Turner cashed his check and bought a ease of beer. They left from Dago's and went to Tupelo, where Turner got some groceries. They then stopped at a liquor store where Turner bought a fifth of vodka. Later that afternoon, Turner was driving when the three returned to Dago's to purchase three more cases of beer. Moore testified that he, Umfress, and Turner got drunk that night. He did not recall where they spent the night. On Sunday morning, Moore, Turner, and Umfress went to Moore's home around 6:30 or 7:00 a.m. While there, Moore changed clothes and spoke with his mother. When the three left Moore's home sometime around 7:00 a.m., Moore was driving. From there, he drove to the BP station near his home. Moore bought some gas, cigarettes, and ice. There was beer in the truck so Moore bought the ice to cool it down. When the three left the BP station, Moore was driving. He drove toward Tupelo. The last place Moore remembered being on Sunday morning was at the BP station. Moore, Turner, and Umfress were drinking in the truck. The next thing Moore remembered was waking up right before the wreck. He testified that he was seated in the middle of the truck. When he awoke he saw that they were about to hit the Wests' vehicle, and he reached over and grabbed the steering wheel in an attempt to pull the truck out of the way of the Wests' car. He was not sure whether he had actually turned the steering wheel or not. The next thing Moore remembered was Turner lying on top of him. Moore testified-that he asked Turner to raise up so he could get from underneath Turner, but Turner said he could not move. Moore was then taken to the hospital, where he refused consent to allow his blood to be drawn. He testified that he told the nurse that he was not driving and there was no need for her to draw his blood. Moore testified that he did not remember stopping and turning the driving over to Turner. Moore testified that he was not driving when the accident occurred. Moore testified that Turner was the driver. He testified that he is 5'6\\\" or 5'7\\\". Moore testified that on the day of the accident, Turner had long grayish hair and a full beard.\\n\\u00b6 12. William Putt was a deputy sheriff with the Lee County Sheriffs Department at the time of the accident. He was called to the scene of the accident and arrived there at approximately 11:27 a.m. Later he went to the hospital to talk to Turner and Moore. Putt asked Turner to consent to a blood test, and Turner refused. At that point, Putt returned to the sheriffs office and started working on getting a search warrant for the blood test of Turner. During that time, the hospital called and said that Turner had agreed to take the blood test. Putt returned to the hospital. He and Gwen Judon went in to talk to Turner. Putt did not remember anyone else being present in the room during this conversation except Turner, Judon, and himself. Putt again asked Turner to consent to the blood test, and Turner consented. Ju-don then drew Turner's blood. Putt testified that Turner did not sign a consent form. Turner told Putt and Judon that he could not write. He gave verbal consent. The consent form was signed by Putt and Judon. The form stated that \\\"[t]he patient is unable to consent because . states unable to write at this time but given verbal consent.\\\" Putt described Turner's appearance at the hospital. He stated that Turner had long, shoulder-length, bushy hair and a beard. Putt was unable to identify Turner in court.\\n\\u00b6 13. Sam Howell with the Mississippi Crime Lab testified that he analyzed Turner's blood and that the blood alcohol level was 0.23%.\\n\\u00b6 14. Wanda Shumpert, a defense witness, testified that she is a neighbor of Turner's. In the early morning of July 2, 1995, she was outside of her house when Turner, Moore and Umfress drove by. She did not know the other two men, but she knew Turner. She testified that at that time, Turner was seated in the middle of the truck. On cross-examination, Shumpert testified that she saw Turner and the others between 7:00 a.m. and 9:00 a.m. Turner had a beard and his hair was fairly long.\\n\\u00b6 15. Amy Linton testified that she is a neighbor of Turner's. On July 2, 1995, between 8:00 a.m. and 9:00 a.m., she saw Turner and two other men that she did not know driving down the road. She testified that Turner was seated in the middle of the truck. Linton testified on cross-examination that she was positive that it was Turner that she saw in the middle because she recognized his beard and long hair.\\n\\u00b6 16. John Gardner testified that he knew Turner, Moore, and Umfress. He saw them at the BP station on July 2, 1995 between 7:00 a.m. and 7:15 a.m. Gardner testified that Moore was driving the truck.\\n\\u00b6 17. Richard Dobbins testified that he knew Turner. He testified that between 7:00 a.m. and 8:00 a.m. on July 2, 1995, he saw Turner and two other men at Leslie's grocery. Turner was sitting in the middle of the truck.\\n\\u00b6 18. Frank Carroll Leslie testified that between 7:00 a.m. and 8:00 a.m., Turner and two other men came to his store. When the vehicle left his store, Turner was seated in the middle.\\n\\u00b6 19. Faye Willis testified that she saw Turner and two other men at the R & R Cash and Carry on July 2, 1995 around 9:30 a.m. or 10:00 a.m. Turner was seated in the middle of the truck with the other men on either side of him. The other men were wearing caps.\\n\\u00b6 20. Lamon Griggs testified as an expert in accident reconstruction for the defense. He testified that the pick-up was on the' wrong side of the road when it collided with the Wests' vehicle. He saw no evidence of anyone jerking the steering wheel to try to avoid impact. Griggs testified that there was plenty of room within the cab of the pick-up for one or two people to move around.\\n\\u00b6 21. The State called Nancy Hammond as a rebuttal witness. She testified that she had known Turner all her life. She identified Turner in court. Hammond testified that on July 1, 1995, Turner and Umfress came into her store, Dago's. She described Turner as having a \\\"long, stringy hair, beard down to here, real rough looking.\\\" Turner left driving the truck.\\n\\u00b6 22. The State also called Doris McCullar on rebuttal. She had known Turner for several years. She identified Turner in court. McCullar was working at Dago's on July 1, 1995 when Turner came in. Turner did not look the same in court as he did on that day. McCullar testified that on July 1, 1995, Turner had a long beard and long hair. When the, three men left the store, Turner was driving the truck.\\n\\u00b6 23. Turner appeals from the jury verdict convicting him of DUI resulting in death. He assigns as error the following issues for this Court's review:\\nI. WHETHER SUFFICIENT EVIDENCE WAS PRESENTED TO CONVICT TURNER ON THE INDICTED CHARGE.\\nII. THE COURT ERRED IN ALLOWING THE INTRODUCTION OF THE BLOOD ALCOHOL REPORT OVER THE OBJECTION OF THE DEFENDANT WHERE THE PROSECUTION DID NOT LAY THE PROPER FOUNDATION FOR INTRODUCTION AND VIOLATIVE OF THE FOURTH AMENDMENT.\\nIII. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR DIRECTED VERDICT, BOTH AT THE CLOSE OF THE STATE'S CASE AND AT THE CLOSE OF THE ENTIRE CASE, AND IN DENYING MOTION FOR JNOV, OR IN THE ALTERNATIVE, A NEW TRIAL.\\nIV. THE COURT ERRED IN NOT GIVING A CIRCUMSTANTIAL EVIDENCE INSTRUCTION.\\nV. THE EVIDENCE PRESENTED PROVED TO BE INSUFFICIENT WHERE GREAT RELIANCE WAS PLACED ON THE UNCORROBORATED INCREDIBLE TESTIMONY OF TERRY MOORE.\\nVI. WHETHER THE TRIAL COURT ERRED IN CHARGING THE JURY TO RESUME DELIBERATIONS ON TWO SEPARATE OCCASIONS WHERE THEY EXPRESSED THAT THEY WERE DEADLOCKED.\\nVII. THE COURT ERRED CONCERNING THE OVERRULING OF MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF OFFICER CONCERNING THE POSITION OF OCCUPANTS AND ERRED IN NOT GRANTING MOTION FOR CONTINUANCE.\\nVIII. THE COURT ERRED BY NOT ALLOWING DEFENDANT TO PRESENT ITS THEORY THROUGH THE OPINION TESTIMONY OF ACCIDENT RE-CONSTRUCTIONIST EXPERT AND ERRED IN NOT GRANTING CONTINUANCE.\\nIX. THE COURT ERRED IN FAILING TO SUSTAIN DEFENDANT'S MOTION TO DISMISS INDICTMENT BASED ON CONSTITUTIONAL INFIRMITIES.\\nANALYSIS\\nISSUES I, III, & V\\n\\u00b6 24. Turner's contends in Issue I that the evidence was legally insufficient on the issue of whether Turner was driving the pick-up at the time of the accident. In Issue III, Turner asserts that the trial court erred in denying his motions for directed verdict, his motion for j.n.o.v., and his motion for new trial. . In Issue V, Turner contends that the evidence was legally insufficient because Terry Moore's testimony was not credible. As the State points out in its brief, it appears that Turner's contention goes more to the weight and credibility of Moore's testimony than to the legal sufficiency.\\n\\u00b6 25. In summary, Turner is contesting both the legal sufficiency and the weight of the evidence at trial. The legal sufficiency argument is an assignment of error to the trial court's denial of Turner's motions for directed verdict, which were renewed post-trial in his motion for j.n.o.v. The weight of the evidence argument is an assignment of error to the trial court's denial of the motion for new trial. Both the legal sufficiency and weight of the evidence arguments involve the same factual issue which is who was driving the pick-up when the wreck occurred. Therefore, we will address Turner's Issues I, III, and V in conjunction with one another.\\n1. Legal Sufficiency\\n\\u00b6 26. Miss.Code Ann. \\u00a7 63-11-30(4) (1996) provides that:\\nEvery person who operates any motor vehicle in violation of the provisions of subsection (1) of this section and who in a negligent manner causes the death of another or mutilates, disfigures, permanently disables or destroys the tongue, eye, lip, nose, or any other limb, organ or member of another shall, upon conviction, be guilty of a felony and shall be committed to the custody of the State Department of Corrections for a period of time not to exceed twenty-five (25) years.\\n\\u00b6 27. Subsection (1) of Miss.Code Ann. \\u00a7 63-11-30 (1996) provides, in pertinent part, that:\\nIt is unlawful for any person to drive or otherwise operate a vehicle within this state who (a) is under the influence of intoxicating liquor; . (c) has ten one-hundredths percent (.10%) or more .\\nThe elements of the crime of DUI resulting in death are therefore, (1) operating a vehicle while under the influence of intoxicating liquor or with a blood alcohol level of .10% or more; and (2) causing the death of another in a negligent manner. Hedrick v. State, 637 So.2d 834, 837-38 (Miss.1994).\\n\\u00b6 28. Turner's contention is that the State failed to prove beyond a reasonable doubt that he was the driver of the pick-up when the accident occurred. The standard of review for Turner's legal sufficiency argument, wherein he argues the trial court erred in denying his motions for directed verdict and his motion for j.n.o.v., is:\\nWhere a defendant has requested a peremptory instruction in a criminal case or after conviction moved for a judgment of acquittal notwithstanding the verdict, the trial judge must consider all of the evidence \\u2014 not just the evidence which supports the State's case.... The evidence which supports the case of the State must be taken as true . The State must be given the benefit of all favorable inferences that may reasonable be drawn from the evidence . If the facts and inferences so considered point in favor of the defendant with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, granting the peremptory instruction or judgment n.o.v. is required. On the other hand, if there is substantial evidence opposed to the request or motion \\u2014 that is, evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair minded men in the exercise of impartial judgment might reach different conclusions the request or motion should be denied.\\nWeefcs v. State, 493 So.2d 1280, 1282 (Miss.1986)(citing Gavin v. State, 473 So.2d 952, 956 (Miss.1985)). The facts of this case were discussed fully at the outset of this opinion. Terry Moore testified that Turner was driving the vehicle at the time of the accident. Numerous rescue workers testified that Turner was located on top of the stack, closest to the steering wheel, and that the occupants of the truck were not able to move around inside the truck. We hold that trial court did not err in denying Turner's motions for directed verdict and his motion for j.n.o.v. The State presented substantial evidence that Turner was the driver of the pick-up at the time of the accident such that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions. This is all that is required of the State, and the trial court was not in error. Additionally, Turner waived the trial court's consideration of the denial of his motions for directed verdict when he presented evidence in his own behalf. Ruffin v. State, 481 So.2d 312, 316 (Miss.1985).\\n2. Weight of the Evidence\\n\\u00b6 29. Turner contends that the jury verdict was against the overwhelming weight of the evidence. \\\"In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports- the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.\\\" Herring v. State, 691 So.2d 948, 957 (Miss.1997)(citing Thornhill v. State, 561 So.2d 1025, 1030 (Miss.1989)). \\\"Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.\\\" Herring, 691 So.2d at 957(citing Benson v. State, 551 So.2d 188, 193 (Miss.1989)). \\\"In reviewing this claim, this Court must accept as true the evidence favorable to the State.\\\" Wetz v. State, 503 So.2d 803, 812 (Miss.1987)(citing Van Buren v. State, 498 So.2d 1224, 1228 (Miss.1986)). \\\"[W]here there is conflicting testimony, the jury is the judge of the credibility of the witnesses.\\\" Wetz, 503 So.2d at 812 (citations omitted).\\n\\u00b6 30. As the State notes in its brief, Turner focuses on the testimony of Terry Moore and the defense witnesses that Terry Moore had been driving the pick-up truck on the morning of the accident. As the State argues, even if those facts are true, they do not impel the conclusion that Terry Moore was driving when the accident occurred. The latest that any witness saw Terry Moore driving the truck was at 9:30 a.m. or 10:00 a.m. Each of those witnesses agreed with the State that he had no idea who was driving the truck at the time of the wreck. The accident occurred at 10:30 a.m. Terry Moore testified that he was not driving the pick-up when the accident occurred. The Sheffields testified that the person driving had long* scraggly, unkempt hair. Numerous rescue workers testified that the person on top of the stack and closest to the steering wheel was the person with long hair and a beard, and that the person in the middle of the stack kept calling the person on top of him, \\\"Corky.\\\"\\n\\u00b6 31. We hold that the trial court did not err in denying Turner's motion for a new trial and that the verdict in this case was not against the overwhelming weight of the evidence. Accepting all of the evidence favorable to the State as true, it cannot be said that the trial court abused its discretion in this case. Turner's assignments of error as to the legal sufficiency of the evidence and the weight of the evidence in Issues I, III, and V are meritless.\\nISSUE 2\\nError in admitting blood alcohol report\\n\\u00b6 32. Turner contends that it was error for the trial court to admit into evidence the blood alcohol report which showed that Turner had a blood alcohol level of .23 sever al hours after the wreck. Turner asserts that the report was more prejudicial than probative. He also asserts that his Fourth Amendment right against unreasonable searches and seizures was violated because he did not sign a consent form, and therefore there was no consent..\\n\\u00b6 33. Turner cites to this Court's decision in Wade v. State, 683 So.2d 965, 967 (Miss.1991) to support his position that \\\"[w]hen the introduction of evidence prejudices defendant, it constitutes reversible error.\\\" This is a misstatement of the law.. Reversible error occurs only where , the improper introduction of evidence prejudices the defendant. Wade, 583 So.2d at 967 (emphasis added). The question for this Court is whether the blood alcohol report was improperly admitted, i.e., was there consent for the blood to be drawn? The results of the blood test are clearly admissible at trial under Miss.R.Evid. 401, so long as Turner was not subjected to an unreasonable search without his consent. Whitehurst v. State, 540 So.2d 1319, 1322-23 (Miss.1989).\\n\\u00b6 34. Turner cites no authority whatsoever to support his position that his verbal consent to the drawing of his blood was insufficient. This Court is under no obligation to consider this assignment of error. Brown v. State, 534 So.2d 1019, 1023 (Miss.1988).\\n\\u00b6 35. The trial court conducted a hearing on Turner's motion to suppress the blood alcohol test. Elizabeth Jordan, Turner's sister, testified that she was present when Turner's blood was drawn for the blood test and that she never heard anyone talk to Turner about consent. Officer Putt testified that he was present with Gwen Judon when Turner gave verbal consent to the blood test. He also testified that Elizabeth Jordan was not in the room when Turner gave consent. The trial court overruled the motion to suppress. At least part of the trial court's ruling was based on Miss.Code Ann. \\u00a7 63-11-8 (1996) which mandates that the operator of any motor vehicle involved in an accident that results in a death shall be tested for his blood alcohol content, and that those results may be used as evidence in any court without the consent of the person tested. Miss.Code Ann. \\u00a7 63-11-8(1) & (3) (1996). However, that statute did not become effective until July 2, 1996. The accident and death occurred in this case on July 2,1995.\\n\\u00b6 36. We find that the trial court in its discretion, determined that Turner had consented to the blood alcohol test. This Court gives deference to that ruling. Moreover, the results of the test were admissible at trial under Rules 401 and 403 of the Mississippi Rules of Evidence. This Court, in Ashley v. State, 423 So.2d 1311 (Miss.1982), explained this Court's interpretation of search and seizure law as it applies to blood alcohol searches.\\nWe first address appellant's Fourth Amendment claims. The United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) held that taking blood samples from a defendant who had been lawfully arrested did not violate his Fourth Amendment rights. In Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) the Court held that taking fingernail scrapings from one detained did not violate his Fourth Amendment rights where probable cause for his arrest existed. The Cupp rationale has been extended in some jurisdictions to include the warrantless taking of a suspect's blood for analysis prior to arrest where probable cause existed and the circumstances dictated that the blood should be taken for a test. Aliff v. State, 627 S.W.2d 166 (Tex.Cr.App.1982); State v. Campbell, 189 Mont. 107, 615 P.2d 190 (Mont.1980); State v. Oevering, 268 N.W.2d 68 (Minn.1978).\\nWe find appellant had not been lawfully arrested when his blood was withdrawn for testing. However, our examination of the facts must not stop here. We must determine whether Officer Santacruz had probable cause to detain appellant and order a blood test after he went to the hospital. The facts in possession of the officer at that time were that Ashley was driving an automobile which had run into the rear end of another automobile which was stopped at a traffic signal, that an occupant of the stopped automobile had been killed in the accident, and in the opinion of the officer appellant was intoxicated. Under these facts the officer could then have arrested appellant on a charge of manslaughter and required appellant to submit to a test to determine the alcoholic content of his blood. At that time there existed probable cause for arrest and also probable cause to search appellant by requiring him to submit to the withdrawal of blood from his body to be tested.\\nThe United States Supreme Court recognized in Schmerber, supra, that extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol. It also recognized, as this Court did in Jackson v. State, 310 So.2d 898 (Miss.1975), that the percentage of alcohol in the blood begins to diminish shortly after drinking stops as the body functions to eliminate alcohol from the system.\\nInformation gathered at the accident scene and later at the hospital not only provided probable cause for appellant's arrest, but also indicated that appellant was probably intoxicated; hence, the need for a blood test. Under the facts of this case, we hold that appellant's Fourth Amendment rights were not violated, and the result of the blood test administered at the direction of Dr. Wiggins was admissible in evidence. We hold that, where the state is justified in requiring a blood test to determine the alcoholic content in a suspect's blood, and such test has in fact been performed, although for diagnostic and not law enforcement purposes, the state is entitled to the benefit of the test results....\\nAshley v. State, 423 So.2d 1311, 1313-14 (Miss.1982). In the case sub judice, Officer Putt certainly had probable cause to arrest Turner at the hospital. Under Ashley, he could have taken Turner's blood for testing even without consent. We hold that there was no error in the trial court's denial of Turner's motion to suppress.\\nISSUE TV\\nError not to give circumstantial evidence instruction\\n\\u00b6 37. Turner argues that it was error for the trial court to refuse to give a cireum-stantial evidence instruction in this case. He contends that there was no eyewitness or direct evidence identifying him as the driver of the truck.\\n\\u00b6 38. Clearly, Terry Moore was an eyewitness. Turner argues that Moore was drunk and could not remember certain events on the day of the accident. As the State argues, these were factors for the jury to consider in assessing the weight and worth of Moore's testimony, but they do not change the fact that Moore was an eyewitness. Moore testified that Turner was driving the truck.\\n\\u00b6 39. \\\"The rule in Mississippi is that a circumstantial evidence instruction should be given only when the prosecution can produce neither eyewitnesses or a confession to the offense charged.\\\" Stringfellow v. State, 595 So.2d 1320, 1322 (Miss.1992). This assignment of error is meritless.\\nISSUE VI\\nError in requiring the jury to continue deliberations\\n\\u00b6 40. The jury in this case retired to deliberate its verdict at 10:55 a.m. The jury returned to the courtroom at 2:02 p.m. At that point, the court asked for the numerical division of the jury and instructed the jury to not tell him which way it was divided. The jury announced that it was divided 8 to 4. The court asked, \\\"Is there a possibility that you all can reconcile your differences and resolve this matter if you had additional time?\\\" One juror responded, Wes, sir.\\\" The trial court then read verbatim to the jury the Sharplin charge, and the jury returned to deliberate at 2:05 p.m. Sharplin v. State, 330 So.2d 591, 596 (Miss.1976). At 3:10 p.m., the jury again returned to the courtroom and announced that it was divided by a vote of 9 to 3. The court again asked the jury, \\\"Is there any possibility of you reconciling your differences and reaching a decision in this case?\\\" All jurors responded with affirmative nods. The court then said, \\\"If you all feel that you can resolve it, I'm going to ask that you continue your deliberations.\\\" The jury returned to deliberate at 3:14 p.m. The jury returned to the courtroom at 4:43 p.m. and announced its verdict of guilty.\\n\\u00b641. It appears that Turner is arguing that the court erred the second time he sent the jurors back to deliberate because he did not recharge the jury.\\n\\u00b6 42. The trial court committed no error here. There is no error in asking the jury for its numerical division without reference to guilt or innocence. Sharplin, 330 So.2d at 596. Additionally, the first time the trial court sent the jury back to deliberate, he read the approved charge verbatim from Sharplin. The second time the trial court sent the jury back, he did not reread the Sharplin charge. However, this was not error. In Sharplin, this Court said,\\nIf the trial judge feels that there is a likelihood that the jury might reach a verdict, he may return the jury for further deliberations by simply stating to the jurors: 'Please continue your deliberations,' or he may give the following instruction\\nId. at 596(emphasis added). Although the trial court did not recharge the jury with the Sharplin charge, he only asked them to continue their deliberations, which is sufficient under Sharplin. This assignment of error is meritless.\\nISSUE VII\\nError in overruling motion in limine\\n\\u00b643. Turner assigns as error the trial court's denial of his oral motion in limine to prohibit the investigating police officers from stating their opinions as to who was driving the pick-up truck. Before the start of the trial, the State moved in limine to exclude the testimony of the defense's expert accident reconstructionist from giving an opinion as to who the driver of the truck was. That motion was granted. Subsequently, the defense moved in limine to exclude any investigating police officers from stating their opinions as to who was driving the truck. The following exchange occurred:\\nMR. FARRELL: Your Honor, in that connection, then, will the Court permit police officers to testify as to their opinion as to who was closest to the steering wheel or who was driving or anything of that nature?\\nMR. FARRIS: Your Honor, that's just pure fact, who was closest to the steering wheel and who was on top of the pile.\\nTHE COURT: They can testify what they visually observed. They were there. I'm going to allow them to testify as to that.\\nMR. FARRELL: Will any statements or any testimony be allowed, Your Honor, with regard to their opinion as to who was driving?\\nTHE COURT: Any statement about the opinion?\\nMR. FARRELL: Whether the Court will permit testimony from the police officers with regard to their opinion as to who was driving.\\nTHE COURT: Did they investigate?\\nMR. FARRELL: Pardon me?\\nTHE COURT: Did they investigate?\\nMR. FARRELL: Yes, Your Honor.\\nTHE COURT: If they investigated, I'm going to allow them to make reasonable opinions associated with the investigation if they were out there. I'm going to allow them to do that.\\nTHE COURT: If they took a statement along those lines, I'm going to allow them to do it. You are asking me just carte blanche just say that I'm not going to allow them to do it, and I don't know th\\u00e9 entire circumstances behind it, Mr. Thorne. If they get on there and they've got sufficient background information to substantiate that they can make a determination as to who was driving, I'm going to allow them to do it, but if it has no basis and they are just speculating, then that's an entirely different story. I can't carte blanche say that I'm not going to let them do it now, because I don't know the facts or circumstances from what they are going to testify to, and that's what you are asking me to do. You are asking me to say at this point that they are not going to be able to give an opinion, and I don't know what they are going to testify to. But I do know that based upon his motion in limine that what you are asking me to allow your expert to do is to say that this expert can come into this courtroom and give an opinion as to where everybody was seated in that truck based upon what the injuries were and based upon what the doctor's report was, and I'm not going\\u2014\\nMR. THORNE: No, sir, not based strictly on the doctors reports. It's based on all of the information that has been accumulated and provided to us through discovery and his own investigation, looking at the scene, looking at the vehicles and the doctors' reports in addition to that.\\nTHE COURT: Okay. Well, at this time if you were making an oral motion in limine to exclude any testimony from the police officers, that motion will be overruled at this time. Basically because I don't know what they are going to testify to, if they have an opinion....\\n\\u00b644. This assignment of error by Turner focuses on the testimony of Officer William Putt. Turner does not point to any specific objectionable testimony in his brief. The State assumes, as does this Court, that Turner complains of the following testimony;\\nQ Now, Mr.' Putt, at that point in time was it your opinion that Corky was the driver of that vehicle?\\nA Yes, sir, it was.\\nMR. THORNE: Your Honor, object to that. Calls for his opinion. He's not qualified to give that type of opinion.\\nTHE COURT: The objection is overruled.\\nQ And what did you base your conclusion on?\\nA The statements from the EMTs.\\nTurner argues that Putt was a lay witness and not an expert, and that therefore he could not testify as to the cause of the accident or who was driving at the time of the accident. Turner also argues that Putt's testimony does not satisfy the requirements of Miss.R.Evid. 701 for lay witness opinion testimony.\\n\\u00b645. The State counters that it is clear from a reading of the record that Putt was not testifying as an expert. The record reveals that Putt was being questioned by the State as to his belief that he had probable cause to obtain a search warrant for Turner's blood after Turner refused to submit to a blood alcohol test. The questions leading up to this statement by Putt all dealt with the facts supporting Putt's determination that there was probable cause for a search warrant for Turner's blood, but not for Terry Moore's. Turner insists that Putt was really giving expert testimony in the form of accident reconstruction. The record belies that assertion.\\n\\u00b646. The question is whether this statement was proper lay witness opinion testimony. Rule 701 of the Miss.R.Evid. provides that:\\nIf the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to the clear understanding of his testimony or the determination of a fact in issue.\\nPutt's statement does not appear to meet the requirements of the rule. First, his opinion was based on the perceptions of the EMTs, and not his own. Second, his opinion invaded the province of the jury to determine who was the driver of the truck. However, the opinion did help the jury to understand why Putt believed he had probable cause to obtain a search warrant for Turner's blood, and why he did not believe that he had probable cause to obtain a search warrant for Moore's blood.\\n\\u00b6 47. Although the trial court erred in allowing this testimony, this Court holds the error harmless. In Whittington v. State, 523 So.2d 966, 974-75 (Miss.1988), a lay witness police officer was permitted to express his opinion that at the time of his investigation, he did not think the victim died in the car wreck. Although this was the defendant's theory of defense, this Court held that the error was harmless because the Court found that the officer's statement was no more than an expression that his suspicion was aroused following his investigation at the scene. Whittington, 523 So.2d at 975. The Court reasoned that the jurors already knew that the investigating officers were suspicious, or else the investigation would not have continued. The Court found that it would have been a much more serious ques tion if the officer had been asked and permitted to testify that, at the time of trial, he did not believe the victim was killed in the wreck. Id. Finally, the Court found the error cured by the fact that an expert testified after the officer and, in great detail, explained why in his opinion he did not believe the victim was killed in the accident. Id.\\n\\u00b6 48. In the case sub judice, as in Whit-tington, the jurors already knew that Putt suspected Turner to be the driver because he did not pursue an effort to obtain Moore's blood. Additionally, Putt's testimony was followed by Terry Moore's testimony in which he testified directly that Turner was the driver. Therefore, we hold that any error was cured, as it was in Whittington.\\nISSUE VIII\\nError in limiting opinion of defense expert witness\\n\\u00b6 49. Turner argues that it was error for the trial court not to allow his expert accident reconstruction witness, Lamon Griggs, to testify as to the position of the occupants in the truck. The trial court, after reviewing Griggs' curriculum vitae, ruled that he would not be allowed to testify as to the positions of the occupants in the truck or to who was driving the truck. The court found that Griggs had no expertise in that area. After Griggs' testimony at trial, the defense proffered his opinion as to the positions of the occupants in the truck and as to who was driving. He opined that Terry Moore was driving the truck at the time of the accident. The trial court stated;\\nLet the record reflect that the Court refused to allow this testimony, that the Court accepted this witness as a witness in the field of accident reconstruction, that based upon that \\u2014 allowing him to do that, the Court was of the opinion that to allow this testimony was outside his area of expertise and that I would not allow that testimony, because I was of the opinion that he was not a physicist. And because he was not qualified in the area to establish who was the driver of the automobile, I would not allow that in evidence.\\nIn addition, the Court did not allow him to testify as to injuries received by the occupants of the vehicle based upon the fact that he's not a medical doctor.\\n\\u00b6 50. This Court has said that, \\\"[t]he admission of expert testimony is addressed to the sound discretion of the trial judge. Unless we conclude that the decision was arbitrary and clearly erroneous, amounting to an abuse of discretion, that decision will stand.\\\" Seal v. Miller, 605 So.2d 240, 243 (Miss.1992)(citing Hooten v. State, 492 So.2d 948, 950-51 (Miss.1986)(citing Weiss v. Louisville, N.O. & T. Ry. Co., 7 So. 390 (1890))). Turner does not assert in his brief that the trial court erred in ruling that his expert was unqualified to testify as to the driver of the truck. Rather, he asserts that because William Putt was allowed to give his \\\"expert\\\" opinion as to the driver of the truck, Turner should have been allowed to have his expert rebut Putt's opinion. Turner claims his case was prejudiced in that he was not allowed to present his theory of defense.\\n\\u00b6 51. The trial court was completely within its discretion to determine that Griggs was not qualified to give this opinion. First, as discussed in Issue VII, Putt was not giving expert testimony in the form of accident reconstruction testimony. Second, Turner has cited no authority nor made any argument in support of his quid pro quo argument. Turner argues that defendants are allowed to present every lawful defense available to them, and that his right in this area was restricted. While this basic premise may be true, the trial court was not required to allow Turner's expert to testify in areas that the court found him lacking in expertise. Turner could have and did present his theory through other witnesses. The jury was well aware that Turner's contention was that he was not the driver of the truck, and that Moore was. This assignment of error is meritless, and Turner suffered no prejudice.\\nISSUE IX\\nConstitutionality of Miss.Code Ann. \\u00a7 63-11-30(4)\\n\\u00b6 52. Turner assigns error to the trial court's denial of his motion to dismiss the indictment, contending that Miss.Code Ann. \\u00a7 63-11-30(4) is unconstitutional. He argues that the statute is vague, ambiguous, and overbroad because it does not define a degree of negligence necessary to be guilty of the felony, whereby the statute provides insufficient notice of the prohibited conduct. Turner also argues that the statute is unconstitutional because it does not provide that contributory or comparative negligence is a defense to a criminal prosecution. Finally, he argues that the statute is unconstitutional because it provides for a more severe penalty than that provided for culpable negligence manslaughter.\\nVagueness\\n\\u00b6 53. Turner argues that Miss.Code Ann. \\u00a7 63-11-30(4) is vague because it does not define the degree of negligence necessary to violate the statute. He argues that negligence is defined in many different ways, and that therefore the statute gives inadequate notice.\\n\\u00b6 54. This Court has said that simple negligence is sufficient for a conviction under Miss.Code Ann. \\u00a7 63-11-30(4). Holloman v. State, 656 So.2d 1134, 1140 (Miss.1995). Also in Holloman, we said that only simple negligence is required by the statute, not culpable or gross negligence. Holloman, 656 So.2d at 1140(simple negligence jury instruction was appropriate.) Negligence is defined as \\\"failure to exercise reasonable care under the circumstances.\\\" Smith v. City of W. Point, 475 So.2d 816, 818 (Miss.1985)(citing Cole v. Delchamps, Inc., 246 Miss. 846, 152 So.2d 911, 913 (1963)).\\n\\u00b6 55. In Mayfield v. State, 612 So.2d 1120, 1128 (Miss.1992), this Court rejected a similar argument concerning Miss.Code Ann. \\u00a7 97-3-47 (1994). The appellant in that case argued that the culpable negligence manslaughter statute was vague because it did not set out what activities constituted culpable negligence. This Court found that the appellant's argument was meritless in view of the numerous decisions defining culpable negligence. Similarly, this Court rejects Turner's argument that Miss.Code Ann. \\u00a7 63-11-30(4) is vague in view of the numerous decisions of this Court defining negligence.\\nContributory or comparative negligence as a defense\\n\\u00b6 56. Turner asserts that the statute is unconstitutional because it does not provide for a defense of contributory or comparative negligence. However, Turner cites no authority for his contention and fails to make any argument whatsoever. This Court is not required to consider this assignment of error. Brown v. State, 534 So.2d 1019, 1023 (Miss.1988). Furthermore, Turner has no standing to make this argument as there was absolutely no proof at trial that Mr. West was in any manner contributorily negligent.\\nPunishment\\n\\u00b6 57. Finally, Turner argues that the statute is unconstitutional because it provides for a more severe penalty than that provided for culpable negligence manslaughter. Turner focuses his argument on the contention that negligence is less condemnable than culpable negligence. Turner ignores the fact that Miss.Code Ann. \\u00a7 63-11-30(4) requires proof of intoxication in addition to negligence.\\n\\u00b6 58. This Court has said, \\\"[t]he power to determine appropriate punishment for criminal acts lies in the legislative branch.\\\" Fisher v. State, 690 So.2d 268, 275 (Miss.1996). The State correctly points out that when the Legislature increased the penalty for DUI causing death to a maximum of twenty-five years, DUI resulting in death ceased to be a lesser-included offense of manslaughter. This assignment of error is unsupported by authority or argument. Furthermore, it is meritless.\\nCONCLUSION\\n\\u00b6 59. This Court holds that no reversible error occurred in this case, and we affirm the verdict of the jury finding Turner guilty of DUI resulting in death.\\n\\u00b6 60. CONVICTION OF DUI-DEATH AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED. APPELLANT SHALL PAY COURT COSTS AND MAKE RESTITUTION OF $7,415.00 FOR FUNERAL EXPENSES.\\nPRATHER, C.J., SULLIVAN, P.J., and BANKS, JAMES L. ROBERTS, Jr., SMITH, MILLS and WALLER, JJ., concur.\\nMcRAE, J., not participating.\"}" \ No newline at end of file diff --git a/miss/12141475.json b/miss/12141475.json new file mode 100644 index 0000000000000000000000000000000000000000..044c838f2f09290df7630179342c6a465b5d4b87 --- /dev/null +++ b/miss/12141475.json @@ -0,0 +1 @@ +"{\"id\": \"12141475\", \"name\": \"Phillip FREDENBURG a/k/a Phillip C. Fredenburg Appellant v. STATE of Mississippi, Appellee\", \"name_abbreviation\": \"Fredenburg v. State\", \"decision_date\": \"2016-10-25\", \"docket_number\": \"No. 2015-CP-01072-COA\", \"first_page\": \"638\", \"last_page\": \"645\", \"citations\": \"203 So. 3d 638\", \"volume\": \"203\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T02:13:13.896156+00:00\", \"provenance\": \"CAP\", \"judges\": \"BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.\", \"parties\": \"Phillip FREDENBURG a/k/a Phillip C. Fredenburg Appellant v. STATE of Mississippi, Appellee\", \"head_matter\": \"Phillip FREDENBURG a/k/a Phillip C. Fredenburg Appellant v. STATE of Mississippi, Appellee\\nNo. 2015-CP-01072-COA\\nCourt of Appeals of Mississippi.\\n10/25/2016\\nPHILLIP FREDENBURG (PRO SE), ATTORNEY FOR APPELLANT\\nOFFICE OF THE ATTORNEY GENERAL BY: LADO\\u00d1NA C. HOLLAND, ATTORNEY FOR APPELLEE\\nBEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.\", \"word_count\": \"2953\", \"char_count\": \"18453\", \"text\": \"CARLTON, J.,\\nFOR THE COURT:\\n\\u00b6 1. On August 11, 2008, Phillip Freden-burg pleaded guilty to armed robbery. The trial court sentenced him to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended. On June 11, 2015, Fredenburg filed a motion for postconviction relief (PCR), claiming: (1) his plea was involuntarily and unknowingly entered; (2) ineffective assistance of counsel; and (3) a Brady violation. The trial court summarily denied Fredenburg's motion. Freden-burg now appeals. Finding no error, we affirm.\\nFACTS\\n\\u00b6 2. On October 3, 2007, Elsie Echols reported an armed robbery outside of the Star Food Market on Bailey Avenue in Jackson, Mississippi Echols alerted the police and provided a description of the three men who held her up at gunpoint and stole her purse. Officers with the Jackson Police Department (JPD) then spotted two men matching Echols's description. JPD officers eventually apprehended the two men, Fredenburg and Cage Wright, and took them into custody. Fredenburg declined to give a statement, but Wright provided the police with a statement implicating Fredenburg in the robbery. Wright also told police that he did not know that Fredenburg was planning to commit an armed robbery.\\n\\u00b6 3. Echols later identified Fredenburg and Wright from a photo lineup as two of the three men who robbed her. Echols specifically identified Fredenburg as the male who held the gun and grabbed her purse.\\n\\u00b6 4. At his August 11, 2008 plea hearing, Fredenburg affirmed under oath that his defense counsel had explained to him all of the facts and circumstances of the offense charged and discussed any potential defenses. Fredenburg also swore that he had read and understood his plea petition. The transcript of the plea hearing reflects that the State recited into the record the underlying facts it would prove to support an armed-robbery conviction in the event Fredenburg elected to proceed to trial. Fredenburg testified that he did not disagree with the State's factual basis. At the plea hearing, Fredenburg also denied being on any medication or having any mental illness that would impair his ability to plead guilty.\\n\\u00b65. The trial court accepted Freden-burg's guilty plea and advised Fredenburg of the minimum and maximum sentences for armed robbery. The trial court also advised Fredenburg of the rights he would waive by entering a guilty plea. The trial court then determined that Fredenburg entered his plea freely, intelligently, and voluntarily, and sentenced Fredenburg to serve twenty years in the custody of the MDOC, with five years suspended.'\\n\\u00b6 6. On June 11, 2015, nearly seven years after pleading guilty to armed robbery, Fredenburg filed a PCR motion in the trial court. The trial court summarily denied the PCR motion on June 22, 2015. Fredenburg now appeals.\\nSTANDARD OF REVIEW\\n\\u00b67. \\\"We review a circuit court's denial of a PCR motion under a clearly-erroneous standard of review.\\\" Vanwey v. State, 147 So.3d 367, 369 (\\u00b6 8) (Miss. Ct. App. 2014) (citing McLaurin v. State, 114 So.3d 811, 813 (\\u00b6 4) (Miss. Ct. App. 2013)).\\nDISCUSSION\\n\\u00b6 8. Fredenburg acknowledges that he filed his PCR motion outside of the three-year statute of limitations. However, to explain his delay, Fredenburg claims that he only recently became stabilized on his medication, and he maintains that this resulted in the delay in perfecting his appeal.\\n\\u00b6 9. Fredenburg also raises other claims in support of his PCR motion. Fredenburg claims that he only pleaded guilty because he was threatened by his co-indictees, Cage Wright and Eric James, Fredenburg further alleges that his constitutional rights were violated when he learned after pleading guilty that his co-indictees entered pleas to lesser charges \\\"only minutes\\\" after Fredenburg entered his plea. Fredenburg states that prior to entering his guilty plea, he was entitled to know of any leniency agreement entered into by his co-indictees. He also claims that if the trial court would have required the State to establish a factual basis for his plea, the trial court would have determined that Fredenburg did not commit the crime of armed robbery. Finally, Fredenburg argues that he was denied effective assistance of counsel, in violation of his constitutional rights.\\n\\u00b6 10. In applying the applicable law to this case, we find Fredenburg's claims barred by the three-year statute of limitations of the Mississippi Uniform Postcon-viction Collateral Relief Act (UPCCRA). The record reflects that Fredenburg pleaded guilty to armed robbery on August 11, 2008, yet failed to file a PCR motion until June 11, 2015. Mississippi Code Annotated section 99-39-5(2) (Rev. 2015) provides that in the case of guilty plea, \\\"[a] motion for relief under this article shall be made . within three (3) years after entry of the judgment of conviction.\\\" We acknowledge that the UP-CCRA has provided certain exceptions from this three-year statute of limitations in cases where the petitioner can demonstrate the following:\\n(a)(i) That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence; or\\n(ii) That, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.\\n(b) Likewise excepted are those eases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.\\nMiss, Code Ann. \\u00a7 99-39-5(2). We further acknowledge errors affecting a defendant's fundamental constitutional rights are also exceptions to this time-bar. Blount v. State, 126 So.3d 927, 931 (\\u00b6 13) (Miss. Ct. App. 2013).\\n\\u00b6 11. In evaluating the application of the statute of limitations to this case, we note that the record reflects that the trial court entered its judgment of conviction in 2008, and Fredenburg failed to, file his PCR motion until 2015. As a result, Freden-burg's PCR motion is clearly untimely. However, Fredenburg asserts that his counsel's assistance was ineffective and violated his fundamental constitutional rights. Fredenburg claims that based on this assertion, his motion is thus excepted from the three-year statute of limitations under the UPCCRA.\\n\\u00b6 12. We recognize that the Mississippi Supreme Court has held that claims of ineffective assistance of counsel are subject to the procedural bars of the UP-CCRA. Salter v. State, 64 So.3d 514, 518 (\\u00b6 14) (Miss. Ct. App. 2010) (citing Kirk v. State, 798 So.2d 345, 346 (\\u00b6 6) (Miss. 2000)). Jurisprudence reflects that \\\"merely raising the claim of ineffective assistance of counsel is insufficient to surmount the procedural bar[.]\\\" Thomas v. State, 933 So.2d 995, 997 (\\u00b6 5) (Miss. Ct. App. 2006). Accordingly, this Court must review Fre-denburg's ineffective-assistanee-of-counsel claim to determine whether it is sufficient to invoke the fundamental-rights exception. We recognize that \\\"[t]he burden is on the PCR movant to show he . is entitled to relief by a preponderance of the evidence.\\\" Smith v. State, 129 So.3d 243, 245 (\\u00b6 5) (Miss. Ct. App. 2013). .\\n\\u00b6 13. The supreme court has explained that in order to prevail on a claim of ineffective assistance of counsel, a petitioner \\\"must demonstrate two things: (1) that his counsel's representation fell below an objective standard of reasonableness; and (2) that but for counsel's errors, there is a reasonable probability that the outcome of the proceeding would have been different.\\\" Avery v. State, 179 So.3d 1182, 1188 (\\u00b6 13) (Miss. Ct. App. 2015) (internal quotation marks omitted) (citing Hannah v. State, 943 So.2d 20, 24 (\\u00b66) (Miss. 2006)); see Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).\\n\\u00b6 14. In Avery, 179. So.3d at 1188 (\\u00b6 13), this Court recognized that with regard to guilty pleas, a petitioner \\\"must show that there is a reasonable probability that, but for counsel's errors, [he] would not have pleaded guilty, would have insisted on going to trial, and the outcome would have been different.\\\" We further acknowledged that \\\"a defendant must plead cl\\u00e1ims of ineffective assistance of counsel with specificity, and the claim must be supported by affidavits other than his own.\\\" Id. at 1188-89 (\\u00b613). \\\"When a movant fails to attach any supporting affidavits and relies solely on his own sworn motion, his ineffective-assistance claim must fail.\\\" Id. at 1189 (\\u00b6 13).\\n\\u00b6 15. In support of his claim of ineffective assistance, Fredenburg claims that his attorney should have used Fredenburg's alleged mental illness as a defense for the charges against him. Fredenburg asserts that he informed his counsel of his history of mental illness. Fredenburg suggests that a psychiatric assessment would have shed light on his \\\"capacity to appreciate the criminality' of his conduct as well as his competency to enter a guilty plea. Fre-denburg further claims that his counsel also filled out his plea petition for him and asserted \\\"complete falsities.\\\"\\n\\u00b6 16. Fredenburg also argues that his counsel failed to interview various witnesses who could have corroborated Fre-denburg's story that he was framed. Fre-denburg claims that his defense counsel could have interviewed the employees and customers at the supermarket at the time of the robbery, claiming that \\\"their testimony could have been highly probative of my innocence.\\\" In his brief, Fredenburg also mentions a man named \\\"Frank,\\\" whom he alleges his co-indictee, Eric James, mentioned in his statement to the police. Fredenburg alleges that Frank told James's sister that he observed police \\\"beating up\\\" on a white boy who Frank thought was James. Fredenburg claims that \\\"Frank witnessed me getting beat up by the police. [Frank's] testimony would have been very persuasive evidence of me being framed for the armed robbery.\\\"\\n\\u00b6 17. After our review of the record, we find that Fredenburg's claims lack sufficient evidentiary support. Fredenburg provides only his own assertions to support his claims. Moreover, the record reflects that Fredenburg submitted his plea to the trial court under oath wherein he acknowledged that he understood the meaning and effect of his guilty plea, as well as the offenses to which he pleaded guilty. Fre-denburg also stated under oath that he was satisfied with his defense counsel's service. Thus, Fredenburg has not sufficiently alleged that his counsel's performance fell below an objective standard of reasonableness. Accordingly, Fredenburg failed to prove the first part of the Strickland analysis.\\n\\u00b6 18. Additionally, the record reflects that at his plea hearing, Fredenburg swore under oath that his defense counsel had advised him of the nature of the offense and discussed possible defenses. The record also shows that Fredenburg failed to provide any other information about Frank, including how to contact him. We find that Fredenburg failed to demonstrate a reasonable probability that the outcome of the proceeding would have been different if his, defense counsel had interviewed Frank or the employees and customers at the supermarket. See Avery, 179 So.3d at 1188 (\\u00b6 13).\\n\\u00b6 19. Regarding Fredenburg's claim of mental incapacity that impaired his ability to make a knowing, voluntary, and intelligent plea, we recognize that \\\"it is the petitioner, not the State, who bears the burden of proving by a preponderance of evidence that the guilty plea was involuntary.\\\" Timmons v. State, 176 So.3d 168, 171-72 (\\u00b6 9) (Miss. Ct. App. 2015). Despite Fredenburg's claim to the contrary, the record reflects that the trial court found that the.guilty-plea colloquy herein reflects that Fredenburg's guilty plea was knowing, intelligent, a,nd voluntary. No lack-of-competency issues arose before the trial court upon accepting Fredenburg's plea, and Fredenburg has failed to provide evidence to support a showing of any subsequent onset of mental incapacity upon submission of his PCR- motion - herein. The trial court's order denying Fredenburg's PCR motion reflects that the trial court reviewed the guilty-plea transcript, which shows that Fredenburg denied under oath being on any medications or having mental illness that would impair his, ability to enter his guilty plea.\\n\\u00b6 20. The trial court also found that the medical records submitted by Fredenburg with his PCR motion were inapplicable and insufficient to support his claim for relief. The record shows that, in support of his claim that his plea was involuntary and unknowing, Fredenburg submitted medical records showing his prior diagnosis for attention deficit hyperactivity disorder (ADHD) and conduct disorder. In its order denying PCR, the trial court stated that none of the medical records provided by Fredenburg indicated that he did not understand right from wrong or lacked competency to enter a guilty plea. Specifically, the trial court recognized that\\n[Fredenburg] states, and medical records confirm, he suffered from ADHD and conduct disorder with \\\"sociopathic and psychopathic personality traits.\\\" Different records describe him as antisocial with impulse control issues. However, the last medical records provided were in 2005, two years prior to the crime. Further, no medical records indicate [Fredenburg] did not understand right from wrong or would be impaired to enter a guilty plea. He states he was in \\\"delusional states of mind\\\" when he met with his attorney; however, his attorney's notes, which he attached to his petition, do not indicate this and no medical records from 2008 have been submitted. His attorney did note he was prescribed Ritalin.\\n(Emphasis added). The trial court also found that Fredenburg \\\"failed to attach an affidavit from his former attorney or from anyone else that could verify his illness at the time of the crime and plea.\\\" The trial court observed that the attorney's notes reflected that Fredenburg confessed to his attorney.\\n\\u00b621. Fredenburg also alleges that his constitutional rights were violated when he learned after pleading guilty that his co-indictees entered pleas to lesser charges \\\"only minutes\\\" after Fredenburg entered his plea. Fredenburg states that he was entitled to know of any leniency agreement entered into by his co-indictees. In Brady v. Maryland, 873 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court held \\\"that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.\\\" In order to establish a Brady violation, Fredenburg must show: \\\"(1) the evidence at issue is favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) the State suppressed the evidence, either willfully or inadvertently; and (3) prejudice ensued.\\\" Davis v. State, 174 So.3d 299, 306 (\\u00b622) (Miss. Ct. App. 2015) (citing Skinner v. Switzer, 562 U.S. 521, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011)). We find, however, that Fredenburg's guilty plea precludes him from now asserting a Brady violation. See United States v. Ruiz, 536 U.S. 622, 628, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002); United States v. Conroy, 567 F.3d 174, 178 (5th Cir. 2009); Matthew v. Johnson, 201 F.3d 353, 362-64 (5th Cir. 2000); Walton v. State, 165 So.3d 516, 524-25 (\\u00b6\\u00b6 30-33) (Miss. Ct. App. 2015). See also URCCC 8.04. Further more, Fredenburg provided no evidence in the record regarding any leniency agreement between the State and his co-indict-ees. We find that Fredenburg \\\"failed to show the. evidence was favorable to his defense or that the outcome of the proceedings would have been different had he been shown the evidence.\\\" Davis, 174 So.3d at 306 (\\u00b6 23).\\n\\u00b6 22. We find no abuse of discretion in the trial court's denial of Fredenburg's PCR motion. The record reflects that Fre-denburg's claims are time-barred pursuant to section 99-39-5(2). Based on our review of the record, we find no error in the trial court's finding that Fredenburg failed to present sufficient evidence in support of his claims to overcome the procedural bar. We therefore affirm.\\n\\u00b6 23. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, DENYING THE MOTION FOR POSTCON-VICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.\\nLEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.\\n. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963),\\n.- Uniform Rule of Circuit and County Court 8.04(A)(4)(c) provides in pertinent part:\\nWhen the defendant is arraigned and wishes to plead guilty to the offense charged, it is the duty of the trial court to address the defendant personally and to inquire and determine:\\nc. That the accused understands that by pleading guilty (s)he waives his/her constitutional rights of trial by jury, the right to confront and cross-examine adverse witnesses, and the right against self-incrimination; if the accused is not represented by an attorney, that (s)he is aware of his/her right to an attorney at every stage of the proceeding and that one will be appointed to represent him/her if (s)he is indigent.\"}" \ No newline at end of file diff --git a/miss/12353770.json b/miss/12353770.json new file mode 100644 index 0000000000000000000000000000000000000000..b148a11b9637203effa5aaed1d36fcee68ade205 --- /dev/null +++ b/miss/12353770.json @@ -0,0 +1 @@ +"{\"id\": \"12353770\", \"name\": \"ESTATE OF Richard B. DAVIS, BY AND THROUGH Its Executrix, Janice Y. DAVIS v. Darrell N. BLAYLOCK, MD d/b/a Blaylock Medical Clinic, LLC; Estate of Richard B. Davis By and Through Its Executrix Janice Y. Davis v. Delta Regional Medical Center; Estate of Richard B. Davis, By and Through Its Executrix, Janice Y. Davis v. Delta Regional Medical Center\", \"name_abbreviation\": \"Estate ex rel. Davis v. Blaylock\", \"decision_date\": \"2017-01-05\", \"docket_number\": \"NO. 2015-CA-01423-SCT CONSOLIDATED WITH NO. 2015-CA-01425-SCT, CONSOLIDATED WITH NO. 2015-CA-01427-SCT\", \"first_page\": \"755\", \"last_page\": \"762\", \"citations\": \"212 So. 3d 755\", \"volume\": \"212\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T18:35:42.246752+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALLER, C.J., DICKINSON, P.J., KITCHENS, COLEMAN AND BEAM, JJ., CONCUR. RANDOLPH, P.J., KING AND CHAMBERLIN, JJ., NOT PARTICIPATING.\", \"parties\": \"ESTATE OF Richard B. DAVIS, BY AND THROUGH Its Executrix, Janice Y. DAVIS v. Darrell N. BLAYLOCK, MD d/b/a Blaylock Medical Clinic, LLC Estate of Richard B. Davis By and Through Its Executrix Janice Y. Davis v. Delta Regional Medical Center Estate of Richard B. Davis, By and Through Its Executrix, Janice Y. Davis v. Delta Regional Medical Center\", \"head_matter\": \"ESTATE OF Richard B. DAVIS, BY AND THROUGH Its Executrix, Janice Y. DAVIS v. Darrell N. BLAYLOCK, MD d/b/a Blaylock Medical Clinic, LLC Estate of Richard B. Davis By and Through Its Executrix Janice Y. Davis v. Delta Regional Medical Center Estate of Richard B. Davis, By and Through Its Executrix, Janice Y. Davis v. Delta Regional Medical Center\\nNO. 2015-CA-01423-SCT CONSOLIDATED WITH NO. 2015-CA-01425-SCT, CONSOLIDATED WITH NO. 2015-CA-01427-SCT\\nSupreme Court of Mississippi.\\n01/05/2017\\nRehearing Denied March 23, 2017\\nATTORNEYS FOR APPELLANT: LEVI BOONE, III, KELVIN CEDELL PULLEY\\nATTORNEYS FOR APPELLEE: JACOB O. MALATESTA, L. CARL HAG-WOOD\\nATTORNEYS FOR APPELLEE: P. SCOTT PHILLIPS, GREGORY WEATHERS VIRDEN, JR.\", \"word_count\": \"3537\", \"char_count\": \"21297\", \"text\": \"MAXWELL, JUSTICE,\\nFOR THE COURT:\\n\\u00b61. This Court has held \\\"that the first court to properly take jurisdiction of a wrongful death action in our state courts shall, so long as the action is pending, have exclusive jurisdiction, and any other subsequently-filed action for the same death shall be of no effect.\\\" Despite this clear holding, Janice Y. Davis (Davis)\\u2014after filing an action for the wrongful death of her father, Richard B. Davis, and while that action was pending\\u2014filed three additional, separate wrongful-death actions, two of which were against the same defendant. Because these three subsequent actions were of \\\"no effect,\\\" they were properly dismissed. Thus, we affirm the judgments dismissing the three subsequently filed wrongful-death actions.\\nBackground Facts and Procedural History\\n\\u00b62. This appeal is a consolidation of three appeals, one from each of the subsequently filed wrongful-death lawsuits that was dismissed by the circuit court.\\nI. Davis's Four Suits\\nA.Lawsuit 1 versus Dr. Barber\\n\\u00b63. Davis filed her first wrongful-death suit against William H. Barber, M.D., on November 4, 2014, in the Washington County Circuit Court. Estate of Richard B. Davis v. William H. Barber, MD, Washington County Cause No. 2014-0134 (Lawsuit 1). She claimed Dr. Barber's medical negligence caused her father Richard's death on September 21, 2013. Lawsuit 1 is not part of this appeal.\\nB.Lawsuit 2 versus Dr. Blaylock\\n\\u00b64. Fifteen days later, on November 19, 2014, she filed another suit based on her father's wrongful death. Estate of Richard B. Davis v. Darrell N. Blaylock, MD d/b/a Blaylock Med. Clinic, Washington County Cause No. 2014-0139 (Lawsuit 2). This time she sued Darrell N. Blaylock, M.D., alleging his medical negligence caused her father's death.\\nC. Latosuit 3 versus DRMC\\n\\u00b65. The same day she filed Lawsuit 2, she filed a third wrongful-death lawsuit against Delta Regional Medical Center (DRMC) \\\"based upon the separate negligence committed by Delta Regional Medical Center.\\\" Estate of Richard B. Davis v. Delta Reg'l Med. Ctr., Washington County Cause No. 2014-0140 (Lawsuit 3).\\nD. Lawsuit 4 versus DRMC\\n\\u00b66. Then on December 10, 2014, she filed a fourth wrongful-death suit, also against DRMC, \\\"arising from alleged medical and nursing negligence relating to care provided to Richard B. Davis, Sr.[,] by Darrell N. Blaylock, M.D. and the nursing staff of Delta Regional Medical Center.\\\" Estate of Richard B. Davis v. Delta Reg'l Med. Ctr., Washington County Cause No. 2014-0146 (Lawsuit 4).\\nII. Motions to Dismiss\\n\\u00b67. Simultaneously with its answers, DRMC filed motions to dismiss both Lawsuit 3 and Lawsuit 4. Because Davis already had filed Lawsuit 1, which was still pending, DRMC argued Lawsuits 3 and 4 had to be dismissed.\\n\\u00b68. Davis responded by filing a \\\"Motion to Combine and Amend Complaint\\\" in both Lawsuit 3 and Lawsuit 4. In her motions, Davis acknowledged she had filed four separate wrongful-death lawsuits. And she attached to her motions a proposed First Amended Complaint that named Dr. Barber, Dr. Blaylock, and DRMC as defendants.\\n\\u00b69. While DRMC's and Davis's motions were pending, Dr. Blaylock moved to dismiss Lawsuit 2. Like DRMC, Dr. Blaylock cited the still-pending Lawsuit 1. WMe Davis filed a response, she did not file a motion to combine and amend in Lawsuit 2. Nor, apparently, did she file a motion to combine and amend in Lawsuit 1\\u2014the first-filed suit.\\n\\u00b610. The motions to dismiss for all three actions were heard on June 23, 2015. On August 12, 2015, the trial court entered three separate orders dismissing Lawsuit 2, 3, and 4. Each order gave the same reason for dismissal\\u2014\\nBased on the decision in Long, this Court finds that the first wrongful death action filed for the death of Mr. Davis, Davis v. Barber, Washington County cause no. 2014-0134 [(Lawsuit 1)], is the only valid wrongful death case filed. The remaining three cases that were subsequently filed have no effect and shall be dismissed.\\nSee Long v. McKinney, 897 So.2d 160, 173 (Miss. 2004).\\n\\u00b611. Within ten days of the orders, Davis filed a Motion to Modify Orders and/or for Reconsideration in all three dismissed actions, tolling the time to appeal. See M.R.C.P. 59, M.R.A.P. 4(d). In each motion, Davis cited her motions to combine and amend. While she acknowledged these motions had been denied implicitly when the three actions were dismissed, she asked the court to deny them expressly, so she could appeal the denials. Alternatively, she asked the court to reconsider granting her motions to combine the lawsuits instead of dismissing them.\\n\\u00b612. The trial court entered a second order in each case on August 31, 2015. The orders in Lawsuits 3 and 4 expressly denied the motions to combine and amend as moot. The orders further stated that, because Long held all subsequently filed wrongful-death suits were of \\\"no effect,\\\" the motions filed in these subsequently filed wrongful-death suits also were of no effect. See Long, 897 So.2d at 173. In Lawsuit 2, the court pointed out that no motion to combine and amend had been filed, so there was no pending motion to deny expressly.\\nIII. Notices of Appeal\\n\\u00b613. Davis timely appealed the final orders in all three eases. We consolidated the three appeals. In each, Davis the raises the same two issues\\u2014\\nI. Whether the trial court erred by failing to grant Plaintiffs Motion to Combine four separate wrongful death lawsuits that were filed by the same Plaintiffs against different Defendants at different times due to the different noticing requirements of Miss. Code Ann. \\u00a7 15-1-36 and Miss. Code Ann. \\u00a7 11-46-1.\\nII. Whether the trial court erred in its August 31, 2015 order in ruling that Plaintiffs Motion to Combine and Amend Complaint was moot.\\nDiscussion\\nI. The circuit court followed this Court's clear directive in Long when it dismissed the subsequently filed wrongful-death suits.\\n\\u00b614. We begin with Davis's second issue. She claims the trial court erred when it found in its August 31 orders that Davis's Motion to Combine and Amend Complaint was moot,\\n1\\u00cd15. To be \\\"moot\\\" is to \\\"hav[e] no practical significance.\\\" Moot, Black's Law Dictionary 1099 (9th ed. 2009). And here, Davis's motions to combine and amend had no practical significance because they were filed only in subsequently filed wrongful-death suits that were \\\"of no effect.\\\" Long, 897 So.2d at 173, 174.\\nA. Under Long, any subsequently filed lorongful-death lawsuit \\\"shall be of no effect\\\" while the first action is pending.\\n\\u00b616. Long also dealt with multiple wrongful-death suits. There, two sets of wrongful-death beneficiaries filed two different lawsuits based on the death of the same decedent. Id. at 164. The second set of beneficiaries moved to consolidate their subsequently filed action with the first. Id. at 165. When their motion was denied, this Court granted an interlocutory appeal. Id. at 167-68.\\n\\u00b617. On appeal, we applied \\\"the general rule of priority jurisdiction\\\" to uphold the \\\"one-suit\\\" rule expressed in Mississippi's wrongful-death statute. Id. at 172; see Miss. Code Ann. \\u00a7 11-7-13 (Supp. 2016). Under the rule of priority jurisdiction, \\\"[i]t is fundamental that a plaintiff is not authorized simply to ignore a prior action and bring a second, independent action on the same state of facts while the original action is pending.\\\" Id. at 172. Stated differently, \\\"the principle of priority jurisdiction is that where two suits between the same parties over the same controversy are brought in courts of concurrent jurisdiction, the court which first acquires jurisdiction retains jurisdiction over the whole controversy to the exclusion or abatement of the second suit.\\\" Id.\\n\\u00b618. We found \\\"that a logical extension of the principle of priority jurisdiction requires that all claims for the wrongful death of a person be litigated in the same suit and in the same court.\\\" Id. at 172. Thus, we held \\\"that the first court to properly take jurisdiction of a wrongful death action in our state courts shall, so long as the action is pending, have exclusive jurisdiction, and any other subsequently-filed action for the same death shall be of no effect.\\\" Id. at 173.\\n\\u00b619. In this case, the trial court took jurisdiction over Lawsuit 1\\u2014to the exclusion of Lawsuits 2, 3, and 4. Thus, we find the trial court properly applied Long's principle to hold those three subsequently filed actions were \\\"of no effect.\\\"\\n\\u00b620. On appeal, Davis tries to distinguish Long by pointing out that Long dealt with multiple plaintiffs, while here the same plaintiff brought lawsuits against multiple defendants. But we have made no such distinction, enforcing Long's one-suit rule when the same plaintiff has multiple wrongful-death suits pending. Sauvage v. Meadowcrest Living Ctr., LLC, 28 So.3d 589 (Miss. 2010) (dismissing second-filed wrongful-death suit because same plaintiff had another action pending in Louisiana involving the same death); Rose v. Bologna, 942 So.2d 1287 (Miss. 2006) (reversing the trial court's decision to sever plaintiff's wrongful-death suit against multiple care providers into three lawsuits); cf. also Briere v. S. Cent. Reg'l Med. Ctr., 3 So.3d 126 (Miss. 2009) (holding second wrongful-death lawsuit filed by the same plaintiff did not have to be dismissed because her first wrongful-death action against a different defendant was not currently pending).\\n1121. In fact, in Rose, we reversed the trial court for splitting the wrongful-death action into three suits. Rose, 942 So.2d at 1290. In that case, the administratrix had filed only one wrongful-death suit against multiple healthcare providers. But the trial court granted two of the defendant doctors' motions to sever and transfer venue, creating three wrongful-death actions. On interlocutory appeal, we reversed. In doing so, we found Long controlled. \\\"Adhering to the precedent of Long and determining that Section 11-7-13 applies,\\\" this Court \\\"conclude[d] that there cannot be three separate lawsuits for the wrongful death of Kimberly Rose.\\\" Rose, 942 So.2d at 1290 (emphasis added). And if there could not be three lawsuits in Rose, there cannot be four lawsuits here.\\n\\u00b622. So long as Lawsuit 1 was pending\\u2014 which Davis conceded it was\\u2014Davis's \\\"subsequently filed action[s] for the same death shall be of no effect.\\\" Long, 897 So.2d at 173; see also Briere, 3 So.3d at 129 (clarifying that Long requires subsequent suits be dismissed when the first suit is still pending).\\nB. Under Long, there was nothing to combine.\\n\\u00b623. Still, Davis contends the proper course was to consolidate her multiple actions. But when faced with a similar request to consolidate in Long, we clearly held that, because any subsequently filed actions are \\\"of no effect and should be dismissed,\\\" they cannot be consolidated with the first action. Id. at 174. \\\"Consolidation of suits presupposes that there are two suits to consolidate.\\\" Id. And because a wrongful-death claim \\\"must be brought in a single suit, there cannot be two suits to consolidate.\\\" Id.\\n\\u00b624. In Long, this meant the second set of beneficiaries could not consolidate their action with the first-filed. But they could join the first action. See id. Here, this means Davis could not \\\"combine\\\" all four lawsuits, for that would presuppose there were four suits to combine. But as the trial court correctly found, Lawsuits 2, 3, and 4 were \\\"of no effect and [had to] be dismissed.\\\" Id. So there was nothing to combine. See id.\\n\\u00b625. Instead, any claims against Dr. Blaylock and DRMC had to be brought in Lawsuit 1, which Davis's counsel acknowledged was still pending. But Lawsuit 1 is not part of this appeal. So the issue of whether Davis could amend her complaint in Lawsuit 1 to add her claims against Blaylock and DRMC is not before this Court.\\n\\u00b626. All that is before us in this consolidated appeal is the decision by the trial court to dismiss Lawsuits 2, 3, and 4. Because the trial court properly relied on Long, we find no error in that decision.\\nII. Despite the different notice requirements in Section 15-1-36 and Section 11-46-11, Davis did not have to file different lawsuits at different times.\\n\\u00b627. Alternatively, Davis tries to get around Long's clear holding by asserting she was \\\"legally obligated to file four separate lawsuits.\\\" This obligation to file multiple suits, she claims, was due to the fact her claims against DRMC, a community hospital, were subject to a different statute of limitations and presuit-notice requirement than her claims against private physicians Dr. Barber and Dr. Blaylock.\\n\\u00b628. For wrongful-death actions, the statute of limitations for the alleged cause of death applies\\u2014in this case medical negligence. See Jenkins v. Pensacola Health Trust, Inc., 933 So.2d 923, 926 (Miss. 2006), as modified by Said ex rel. Heirs of Cook v. S. Cent. Reg'l Med. Ctr., Inc., 25 So.3d 1037 (Miss. 2010). Mississippi Code Section 16-1-36 governs medical negligence claims. It provides a two-year statute of limitations but requires written notice of the intent to sue at least sixty days in advance. Miss. Code Ann. \\u00a7 15\\u20141\\u2014 36(2), (16) (Rev. 2012). But medical-negligence claims against a state-sponsored hospital like DRMC are governed by the Mississippi Tort Claims Act (MTCA). And the MTCA has a shorter, one-year statute of limitations and requires presuit notice to be given at least ninety days before filing suit. Miss. Code Ann. \\u00a7 11-46-11(3)(a), (b) (Rev. 2012). So Davis's claims against private physicians Dr. Barber and Dr. Blay-lock had a longer, two-year statute of limitations but a shorter, sixty-day presuit-notice period. And Davis's claims against DRMC had a shorter, one-year statute of limitations\\u2014subject to tolling under Section 11-46-11(3) (a) and (b) \\u2014but a longer, ninety-day presuit-notice period.\\n\\u00b629. While the application of two different statutes of limitations and presuit-no-tice periods made calculating the window in which to file her lawsuit more complicated, it did not prevent Davis from filing all her claims at the same time in one wrongful-death lawsuit. And by no means was she \\\"obligated\\\" to file four separate suit for the same alleged wrongful death. Instead, based on when Richard died and when Davis filed her presuit-notice letters, Davis had a three-and-a-half-month period\\u2014from December 10, 2014, to March 25, 2016\\u2014in which she could have filed all her claims in one lawsuit.\\n\\u00b630. Davis did not wait for this window to open. Instead, Davis chose to go ahead and file Lawsuit 1 on November 4, 2014\\u2014 the day after the notice period for her claims against Dr. Barber had ended\\u2014 even though the presuit-notices period had not expired for Dr. Blaylock or DRMC. But contrary to Davis's contention, nothing in Section 15-1-36 obligated her to file her complaint against Dr. Barber as soon as the sixty-day notice period ended. Instead, the statute required her to give \\\"at least sixty (60) days' notice.\\\" Miss. Code Ann. \\u00a7 15-1-36(15) (emphasis added). So Davis could have waited until December 10, 2014\\u2014the earliest she could have filed all her claims\\u2014and still have been in compliance with both Section 15\\u20141\\u201436(15)'s pre-suit-notice requirement and Section 15-1-36(l)'s two-year statute of limitations.\\n\\u00b631. The same is true for Lawsuit 2. While the earliest she could file was on November 18, 2014, she was not obligated under Section 15-1-36 to file her second lawsuit the next day, on November 19, 2014. Nor did Section 15-1-36 prevent her from amending her complaint in Lawsuit I\\u2014an issue outside the scope of this appeal.\\n\\u00b632. Neither did Section 11-46-11 compel Davis to file Lawsuit 3 on November 19, 2014, the same day she filed Lawsuit 2. Like Section 15-1-36, notice under Section II-46-11 must be given \\\"at lead ninety (90) days before initiating suit.\\\" Miss. Code Ann. \\u00a7 11\\u201446\\u201411(1) (emphasis added). But Davis's notice served to toll the statute of limitations ninety-five days\\u2014or until December 25, 2014. Miss. Code Ann. \\u00a7 ll-46-ll(3)(a). And then, by operation of Section ll-46-ll(3)(b), she had an additional ninety days\\u2014or until March 25, 2015\\u2014to file suit. See Buckner, 61 So.3d at 169. So Davis could have waited to file all her claims on December 10, 2014, and fully complied with both statutes.\\n\\u00b633. In other words, there is no conflict between Long's clear holding that Davis could have only one pending wrongful-death lawsuit and Sections 15-1-36's and 11-46-11's differing statute of limitations and presuit-notice requirements.\\nConclusion\\n\\u00b634. Because Long clearly holds that Lawsuits 2, 3, and 4 were \\\"of no effect\\\" while Lawsuit 1 was still pending, the trial court did not err in dismissing each of these subsequently filed wrongful-death suits. Nor did it err in finding Davis's motion to amend and combine was moot, as it had been filed in the ineffective Lawsuits 3 and 4. Thus, we affirm the judgments of the trial courts, which dismissed the three subsequently filed wrongful-death suits.\\n\\u00b635. AFFIRMED.\\nWALLER, C.J., DICKINSON, P.J., KITCHENS, COLEMAN AND BEAM, JJ., CONCUR. RANDOLPH, P.J., KING AND CHAMBERLIN, JJ., NOT PARTICIPATING.\\n. Long v. McKinney, 897 So.2d 160, 173 (Miss. 2004).\\n. Davis filed a copy of her proposed First Amended Complaint in Lawsuit 2, But this filing was not accompanied by any motion to amend or combine.\\n. Technically, this issue arises only in Davis's appeal in Lawsuits 3 and 4. The trial court did not deny the motion to combine and amend as moot in Lawsuit 2 because, as the court rightly acknowledged, Davis never filed such motion in the action against Dr. Blay-lock. But as this issue goes to the trial court's underlying August 12, 2015 orders dismissing all three suits based on Long, the resolution of this issue also affects Davis's appeal of the dismissal of Lawsuit 2.\\n. See Copiah Cty. Sch. Dist. v. Buckner, 61 So.3d 162, 169 (Miss. 2011) (citing Page v. Univ. of S. Miss., 878 So.2d 1003, 1005 (Miss. 2004) (explaining how to calculate MTCA's statute of limitations based on Section 11-46-11(3)'s tolling provisions).\\n. Richard's death on September 21, 2013, triggered both Section 11-46-11(3)'s one-year statute of limitations and Section 15\\u20141\\u201436(2)'s two-year statute of limitations. See Saul, 25 So.3d at 1046 (holding that \\\"the statute of limitations for the single cause of action that may be brought pursuant to the wrongful death statute cannot begin to run until the date of death\\\").\\nThe first presuit notice Davis sent was to DRMC on August 18, 2014. Because she had to wait at least ninety days to tile an action based on the claims in her presuit notice letter, the earliest she could sue DRMC was November 18, 2014. See Miss. Code Ann. \\u00a7 11-46-11(1). Davis filed Lawsuit 3 the next day, on November 19, 2014. But due to the tolling provisions of Section 11\\u201446\\u201411(3)(a) and(b), the statute of limitations for these claims did not ran until March 25, 2015. See Miss. Code Ann. \\u00a7 11-46-11(3); see also Buckner, 61 So.3d at 169 (explaining how tolling provisions apply).\\nDavis next sent a presuit-notice letter to Dr. Barber on September 2, 2014. Because under Section 15-1-36 she had to wait at least sixty days before filing suit, the earliest she could sue him was November 3, 2014. See Miss. Code Ann. \\u00a7 15-1-36(15). Davis filed Lawsuit 1 against Dr. Barber on November 4, 2014-even though the two-year statute of limitations would not run until September 21, 2015. See Miss. Code Ann. \\u00a7 15-1-36(2).\\nDavis then sent another presuit-notice letter to DRMC on September 11, 2014. To the extent this letter made different allegations than her first, she had to wait until December 10, 2014, to tile these claims. Davis filed Lawsuit 4 on December 10, 2014. But as with her other claims against DRMC, the statute of limitations would not run until March 24, 2015.\\nFinally, Davis sent her fourth presuit-notice letter to Dr. Blaylock on September 19, 2014, This meant she had between November 18, 2014, and September 21, 2015, to file her claims against him. Davis filed Lawsuit 2 on November 19, 2014\\u2014the same day she filed Lawsuit 3.\\n. The only time a plaintiff bringing a medical-negligence claim must file her suit as soon as the sixty-day presuit notice window closes is when \\\"the notice is served within sixty (60) days prior to the expiration of the applicable statute of limitations.\\\" Miss. Code Ann. \\u00a7 15-1-36(15) (emphasis added). That is because, in such a scenario, the statute of limitations is tolled only for sixty days. Id. But here, Davis filed her presuit notice more than a year before the two-year statute of limitations expired, so Section 15\\u20141\\u201436(15)'s tolling provision did not come into play.\"}" \ No newline at end of file diff --git a/miss/12381389.json b/miss/12381389.json new file mode 100644 index 0000000000000000000000000000000000000000..eee3428b4df33588ee980822550033c1ccb55b24 --- /dev/null +++ b/miss/12381389.json @@ -0,0 +1 @@ +"{\"id\": \"12381389\", \"name\": \"Arlin George HATFIELD, III v. DEER HAVEN HOMEOWNERS ASSOCIATION, INC.\", \"name_abbreviation\": \"Hatfield v. Deer Haven Homeowners Ass'n\", \"decision_date\": \"2017-09-14\", \"docket_number\": \"NO. 2016-CP-00820-SCT\", \"first_page\": \"1269\", \"last_page\": \"1278\", \"citations\": \"234 So. 3d 1269\", \"volume\": \"234\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T01:41:23.151590+00:00\", \"provenance\": \"CAP\", \"judges\": \"WALLER, C.J., KITCHENS, KING, MAXWELL AND BEAM, JJ\\u201e CONCUR. CHAMBERLIN, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., AND COLEMAN, J.\", \"parties\": \"Arlin George HATFIELD, III v. DEER HAVEN HOMEOWNERS ASSOCIATION, INC.\", \"head_matter\": \"Arlin George HATFIELD, III v. DEER HAVEN HOMEOWNERS ASSOCIATION, INC.\\nNO. 2016-CP-00820-SCT\\nSupreme Court of Mississippi.\\n09/14/2017\\nATTORNEY FOR APPELLANT: AR-LIN GEORGE HATFIELD, III (PRO SE)\\nATTORNEYS FOR APPELLEE: TIMOTHY JAMES ANZENBERGER, MICHAEL SCOTT JONES, JAMES L. MARTIN\", \"word_count\": \"3861\", \"char_count\": \"24029\", \"text\": \"DICKINSON, PRESIDING JUSTICE,\\nFOR THE COURT:\\n\\u00b6 1. A homeowner appeals an award of attorney fees associated with a complaint filed against him for injunctive relief to enforce a neighborhood's restrictive covenants. We affirm.\\nFACTS AND PROCEDURAL HISTORY\\n\\u00b6 2. On October 31, 2013, the Deer Haven Owners Association filed a Complaint for Mandatory Injunction and Other Relief against Arlin George Hatfield III in the Chancery Court of Madison County, claiming Hatfield \\u2014 a homeowner in the subdivision \\u2014 had violated the subdivision's restrictive covenants by erecting pens for various fowl without the covenants' required prior approval, and that Hatfield's fowl had violated the covenants' prohibition against noxious or offensive activities by roaming around the subdivision and making loud noises. The Association sought an injunction ordering Hatfield to comply with the covenants and an award of attorney fees.\\n\\u00b6 3. Hatfield answered and filed a counterclaim seeking a declaratory judgment. He asked the chancellor to declare that his birds were domestic animals which could be kept in Deer Haven consistent with the covenants and that the pens were not improvements within the meaning of the covenants. Hatfield also sought attorney fees.\\n\\u00b6 4. On June 29, 2015, the Association filed an amended complaint alleging that the Madison County Board of Supervisors had rendered a decision finding that \\\"Hatfield's keeping and raising of birds/fowl on his lot [was] a violation of the Madison County Zoning Ordinance.\\\" And according to the Association, Hatfield's failure to comply with county zoning ordinances also violated the covenants.\\n.\\u00b6 5. The parties' filed motions for summary judgment and the chancellor held a hearing, following which the chancellor granted the Association's* motion, found that Hatfield had violated the Madison County Zoning Ordinance, and concluded that the Association was entitled to an injunction ordering him to remove the fowl from his property. The chancellor also concluded the Association was entitled to recover attorney fees, but that.a hearing was necessary to determine the appropriate amount. Finally, the chancellor found that triable .issues of fact remained as to whether the pens were a improvement erected in violation of the covenants. But the parties later filed an agreed judgment stating any issues regarding the pens were moot because Hatfield had removed them from the property.\\n\\u00b6 6. On December 15, 2015, the chancellor held a hearing on the issue of attorney fees and later denied fees for either party. The Association moved for reconsideration, arguing a Mississippi Court of Appeals decision held it was an abuse of discretion to deny attorney fees when provided for in restrictive covenants. Hatfield responded, arguing that, while the covenants did provide for the prevailing party to recover attorney fees, the amount of those fees was left to the chancellor's discretion, and the chancellor was justified in awarding the Association no fees because a large portion of the fees were incurred before the Association filed its amended complaint to add the only ground upon which it prevailed. Hatfield also argued the Association had failed to present sufficient evidence to support an award of attorney fees because the billing statements were insufficiently definite to show which fees corresponded. with the prevailing claim.\\n\\u00b6 7. The chancellor held a hearing on the motion for reconsideration. After the hearing, the chancellor granted the motion and awarded the Association $50,250 in attorney fees. The chancellor rejected Hatfield's argument that the Association could not recover fees incurred before it filed the amended complaint. According t\\u00f3 the chancellor, the original complaint sought to have the fowl and pens removed for violations of the covenants, and the Association prevailed on that argument. Hatfield appealed.\\nANALYSIS\\n\\u00b6 8. On appeal, Hatfield primarily argues the chancellor erred by awarding the Association attorney fees. But Hatfield first devotes a significant portion of his brief to accusing the chancellor and the Association's attorneys of misconduct. In his record excepts, Hatfield has provided a \\\"Motion for Mistrial\\\" which he filed in the chancery court after this case already had been appealed to this Court. Attached to the motion is what appears to be a judicial performance complaint against the chancellor, bar complaints against the Association's attorneys, and a bar complaint against the Association's president, who also is an attorney. The argument in Hatfield's brief mirrors that in the judicial performance complaint.\\n\\u00b6 9. The Association has filed a motion to strike Hatfield's brief and record excerpts, arguing they should be struck because (1) they contain language disrespectful to the trial judge, (2) the \\\"Motion for Mistrial\\\" and its exhibits are not in the record on appeal, and (3) these arguments \\u2014 which are ethical complaints \\u2014 must be addressed through the Mississippi Bar 'Association and the Mississippi Commission on Judicial Performance. On March 21, 2017, Jus tice Chamberlin entered a single-justice order passing this motion for consideration with the merits.\\n\\u00b6 10. This Court 'finds that' the motion to strike should be granted. Mississippi Rule of Appellate Procedure 28(1) provides that \\\"[a]ny brief containing language showing disrespect or contempt for the trial court will be stricken from the files, and the appropriate appellate court will take such further action as it may deem proper.\\\" As the Association argues, Hatfield's brief is full of language disrespectful to the chancellor.\\n\\u00b6 11. Hatfield essentially argues that every time the chancellor ruled against him, the ruling was purely the result of the chancellor's'bias. Hatfield never identifies any particular conflict of interest or any evidence of bias. He also never provides any argument or citation to suggest any of the chancellor's rulings\\u2014except the award of attorney's fees\\u2014were legally incorrect. Further, nothing in the record reflects bias on the part of the chancellor. Instead, Hatfield simply lodges speculative claims of bias without foundation, often employing boldface and all-capital letters when describing the chancellor's \\\"prejudice.\\\"\\n\\u00b6 12.. Further, the Association correctly points out that this portion of Hatfield's brief and record excepts is based on matters outside the record on appeal. Mississippi Rule of Appellate Procedure 10(a) provides that \\\"[t]he parties shall designate the content of the record pursuant to this rule, and the record shall consist of designated papers and exhibits filed in the trial court, the transcript of proceedings, if-any, and in. all cases a. certified copy of the docket entries prepared by the clerk .of the trial court.\\\" Rule 30(a) then provides that \\\"[ajppeals. shall be on the record as designated pursuant to Rule 10.\\\" \\\"Mississippi appellate courts may not consider information that is outside the record.\\\"\\n\\u00b6 13. Here, Hatfield's \\\"Motion for Mistrial\\\" and its supporting documentation are not in the record. In fa'ct, the record was filed in this Court October 17, 2016. These documents- were not filed in the chancery court until February 6, 2017. They are not properly part of the record before this Court and cannot, be considered. Likewise, Hatfield's ethical complaints against the Association's attorneys are based on his belief that they threatened the chancellor in order to -persuade him to allow an amended complaint. But no such threat is reflected in the record.\\n\\u00b6 14. Finally, as noted above, Hatfield cites no authority- to show that any of the chancellor's rulings\\u2014attorney fees aside\\u2014was erroneous. \\\"It is the duty of the briefing party to cite to authority which supports Its argument. The Court 'considers assertions of error not supported by citation or authority to be abandoned.'\\\" Instead, Hatfield focuses this portion of his brief not on legal error, but on his belief that the chancellor violated the Canons of Judicial Conduct and that the attorneys violated the Rules of Professional Conduct. These matters, if at all, should be addressed through disciplinary proceedings, not a direct appeal.\\nAttorney Fees in the Trial Court\\n\\u00b6 15. This Court reviews an award of attorney fees for an abuse of discretion. The award must be supported by credible evidence, but determining a reasonable fee is left to the discretion of the trial judge.\\n\\u00b6 16. \\\"This Court has stated 'unless a statute or contract provides for the imposition of attorney fees, they are not recoverable.' \\\" Here, the chancellor based the award of attorney fees to the Association on Section 10.03 of the Declaration of Covenants, Conditions and Restrictions for Deer Haven, which provides:\\nIn any legal or equitable proceeding for the enforcement or to restrain the violation of this Declaration or any provisions hereof by reference or otherwise, the prevailing party or parties shall also be entitled to an award of reasonable attorney's fees, in such amount as may be fixed by the court in such proceeding.\\n\\u00b6 17. Hatfield does not argue this provision is unenforceable. In fact, Hatfield sought attorney fees under this provision in the trial court. Nor does Hatfield argue the Association's attorneys billed unreasonable rates or hours. Instead, Hatfield argues the chancellor erred for two other reasons.\\n11.18. First, Hatfield argues that the chancellor erred in his application of Section 10.03. Hatfield points out that Section 10.03 allows recovery by the prevailing party, but leaves the amount to be determined by the court. Hatfield argues that, under this provision, the Association could not recover any fees expended before it filed its amended complaint because the amended complaint alleged the only ground upon which the Association prevailed: Hatfield's failure to comply with county zoning ordinances. Further, Hatfield argues that the chancellor should have awarded no attorney fees at all because the Association failed to present sufficient evidence to prove which fees related particularly to the zoning ordinance theory.\\n\\u00b6 19. Hatfield relies on two Mississippi Court of Appeals opinions. A & F Proper ties, LLC v. Lake Caroline, Inc. concerned a dispute surrounding A & F's contract to build and run a golf course for the Lake Caroline subdivision. There, the suit involved three distinct matters. First, A & F claimed Lake Caroline failed to construct an adequate road into the golf course. Second, under the contract, Lake Caroline was to convey ten lots in the neighborhood to A & F. The parties, however, disputed the method of selecting those lots. Finally, the contract required A & F \\\"to execute a 'Maintenance Deed of Trust' in favor of Lake Caroline that would serve as a permanent lien on the golf course property.\\\" The parties had a third dispute concerning this obligation.\\n\\u00b6 20. Lake Caroline prevailed on- the lot-selection and deed-of-trust issues. But A & F prevailed on the road-construction issue. The contract at issue provided for an award of attorney fees:\\nIf it becomes necessary to insure the performance of the terms and conditions of this Contract by any party hereto having to employ an attorney, then the party admitting default, or the party adjudicated as the defaulting party by a court of competent jurisdiction, shall pay reasonable attorneys' fees and the court cost incurred, if any. ,\\n\\u00b621. On appeal, the Court of Appeals .held that, under this provision, A & F could recover only attorney fees expended in litigating the road-construction issue\\u2014 the only issue on which it prevailed. The Court of Appeals also held that no attorr ney fees could be awarded because the proof-presented at trial was insufficient to distinguish between .the awardable attorney fees expended for the road-construction claim and those expended for other claims.\\n\\u00b6 22. Likewise, Industrial and Mechanical Contractors of Memphis, Inc. v. Tim Mote Plumbing, LLC concerned a dispute based on Industrial's contract with Mote as plumbing subcontractor for a commercial building construction project. Industrial claimed that Mote had breached the contract in three ways. \\\"First, [Industrial] contended that Mote failed to properly 'tie-in' a water pipe, resulting in a leak beneath part of the parking lot.\\\" \\\"Second, evidence was also presented at trial alleging that Mote breached the contract by failing to properly compact the trenches in which Mote laid sewage and water pipes.\\\" \\\"Finally,[Industrial] asserted that Mote breached the contract when Mote employees punched holes in the sheetrock walls inside the building in an effort to locate water cutoff valves, requiring [Industrial] to repair the holes at [Industrial's] expense.\\\"\\n\\u00b6 23. The chancellor found for Industrial on the first claim only, and denied Industrial's request for attorney fees. The contract had a provision providing for the recovery of attorney fees: '\\nIf it becomes necessary for Contractor to employ an attorney to enforce its rights against Subcontractor, Subcontractor agrees to pay a reasonable attorney's fee to such attorney plus all costs of litigation incurred by Contractor.\\nOn appeal, the Court of Appeals applied the rule it articulated in A & F Properties, LLC and held, that Industrial could not recover attorney fees for work related to the two claims on which it did not prevail.\\n\\u00b624. Hatfield argues this case is analogous. According to Hatfield, the Association brought several claims against him: that he violated the restrictive covenant requiring prior approval to erect improvements, that he violated the restrictive covenant prohibiting noxious activities, and that he violated the restrictive covenant requiring compliance with all-zoning ordinances. Because the chancellor's ruling in the Association's favor was based on only one of the three \\u2014 compliance with zoning ordinances \\u2014 -Hatfield argues the Association was only entitled to recover only fees expended in advancing that argument. And because the proof does not show which fees corresponded with which theory, he believes no fees should have been awarded. We disagree.\\n\\u00b6 25. The covenant in question provides for the \\\"prevailing party\\\" to recover attorney fees \\\"[i]n any legal or equitable proceeding for the enforcement or to restrain the violation of this Declaration- or any provisions hereof by reference or otherwise.\\\" As. the chancellor reasoned, the Association filed an equitable action for in-junctive relief to enforce the covenants by having Hatfield's birds and pens removed from the property. -The Association prevailed because it had obtained that relief. So we find that the chancellor correctly applied the plain language of the attorney-fees provision.\\n\\u00b6 26. Hatfield next argues the chancellor erred by awarding attorney fees incurred by the attorney the Association's liability insurance carrier retained to defend against Hatfield's counterclaim. According to Hatfield, because the Association did not pay these sums \\u2014 the insurer did \\u2014 it cannot recover these sums.\\n\\u00b6 27. The chancellor awarded the Association $50,250 in attorney fees and costs. The proof adduced at trial showed the Association paid or owed the attorney it retained \\u2014 James L. Martin of Taggart, Rimes, & Graham \\u2014 $29,477.12. The proof also established that the Association paid a $2,500 deductible for the work performed by the attorney its insurer retained \\u2014 M. Scott Jones of Adams and Reese, LLP\\u2014 who accrued $36,684 in fees excluding that deductible. Finally, the president of' the Association testified that Jones's fees had been paid by the insurance company.\\n\\u00b6 28. Because the combined amount owed by the Association for Martin's fees and the deductible is $31,977.12, at least $18,272.88 of the fees the chancellor awarded represents fees incurred by Jones and paid by the insurer. Hatfield argues that the Association cannot be awarded these fees it did not pay.\\n\\u00b629. This Court will affirm if a trial judge's award of attorney fees is supported by credible evidence. Here, the covenants provided that \\\"the prevailing party or parties shall also he entitled to an award of reasonable attorney's fees,' in such amount as may be fixed by the court in such proceeding.\\\" The covenants do not restrict the entitlement to an award only of attorney fees that are paid by the Association. Hatfield cited no authority to the chancellor \\u2014 and he cites none here \\u2014 that would require a reduction in the award of attorney fees based on who paid the fees. Indeed, under the facts here, we know of no authority that would require a reduction of the fees, even if they had not been paid at all. The covenants' only requirement is that the fees be reasonable.\\nAttorney's Fees on Appeal\\n\\u00b6 30. The Association has filed a motion for this Court to award attorney fees incurred in litigating this .appeal. Where a contract provides for an award of attorney fees, fees are awarded in the trial court, and the appellee successfully defends that award on appeal, this Court has awarded fees incurred in litigating the appeal upon motion by the appellee. In Dixie Contractors, Inc. v. Ballard, this Court awarded \\\"a fee for the services of his- attorney on this appeal in the amount of one-half of that allowed by the trial court.\\\" The Association requests the same here; or $25,125.00. While allowing attorney fees on appeal in an amount equal to one-half of the fees allowed by the trial court may not be fair and equitable in all cases, we find doing so here to be appropriate. We think the better practice, however, would be for the party seeking attorney fees on appeal to file a motion in this Court, supported by affidavits and time records that' establish the actual fees expended on appeal.\\nCONCLUSION\\n\\u00b6 31. The judgment of the Chancery Court of Madison County is affirmed. And this Court grants the appellee's motions to strike and for attorney fees on appeal in the amount of $25,125.00; \\u00b632. AFFIRMED.\\nWALLER, C.J., KITCHENS, KING, MAXWELL AND BEAM, JJ\\\" CONCUR. CHAMBERLIN, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., AND COLEMAN, J.\\n. Section 10.03 of the Declaration of Covenants, Conditions and Restrictions for Deer Haven provides:\\nIn any legal or equitable proceeding for the enforcement or to restrain the violation of this Declaration or any provisions hereof by reference or otherwise, the prevailing party or parties shall also be entitled to an award of reasonable attorney's fees, in such amount as may be fixed by the court in such proceeding.\\n. Miss. R. App. P. 28(Z).\\n. Miss. R. App. P. 10(a).\\n. Miss. R. App. P. 30(a).\\n. Hardy v. Brock, 826 So.2d 71, 76 (Miss. 2002) (citing Dew v. Langford, 666 So.2d 739, 746 (Miss. 1995)).\\n.Russell Real Prop. Servs., LLC v. State, 200 So.3d 426, 430 (Miss. 2016) (citing Miss. R. App. P. 28(a)(6); quoting McNeil v. Hester, 753 So.2d 1057, 1075 (Miss. 2000)).\\n. Miss. Power & Light Co. v. Cook, 832 So.2d 474, 486 (Miss. 2002) (citing Regency Nissan, Inc. v. Jenkins, 678 So.2d 95, 103 (Miss. 1995)).\\n. Cook, 832 So.2d at 486 (citing Regency Nissan, Inc., 678 So.2d at 103; quoting Gilchrist Tractor Co. v. Stribling, 192 So.2d 409, 418 (Miss. 1966); Mauck v. Columbus Hotel Co., 741 So.2d 259, 269 (Miss. 1999)).\\n. Hearn v. Autumn Woods Office Park Prop. Owners Ass'n, 757 So.2d 155, 164 (Miss. 1999) (quoting Grisham v. Hinton, 490 So.2d 1201, 1205 (Miss. 1986)).\\n. See Cook, 832 So.2d at 486 (quoting Miss. R. Prof'l Conduct 1.5) (\\\" '(a) A lawyer's fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.' \\\").\\n.Hatfield argues that this makes the attorney fees provision permissive, rather than mandatory. That distinction, for purposes of this appeal, is irrelevant. The chancellor awarded attorney fees. Hatfield asks this Court to reverse the award. Whether the chancellor had to award them, or exercised his discretion to do so, is irrelevant because, to prevail on appeal, Hatfield must show that the chancellor could not do so.\\n. A & F Props., LLC v. Lake Caroline, Inc., 775 So.2d 1276, 1278 (Miss. Ct. App. 2000).\\n. Id.\\n. Id.\\n. Id.\\n. Id.\\n. Id.\\n. Id.\\n. Id.\\n. Id. at 1282-83.\\n. Id. at 1283.\\n. Id. at 1283-84.\\n. Indus. and Mech. Contractors of Memphis, Inc. v. Tim Mote Plumbing, LLC, 962 So.2d 632, 634 (Miss. Ct. App. 2007).\\n. Id. at 634-35.\\n. Id.\\n. Id. at 635.\\n. Id.\\n. Id.\\n. Id. at 638.\\n. Id. at 638-39 (citing A & F Props., LLC, 775 So.2d at 1282-83).\\n.Cook, 832 So.2d at 486 (citing Regency Nissan, Inc., 678 So.2d at 103; quoting Gilchrist Tractor Co., 192 So.2d at 418; Mauck, 741 So.2d at 269).\\n. See Knight v. McCain, 531 So.2d 590, 597 (Miss. 1988); Dixie Contractors, Inc. v. Ballard, 249 So.2d 653, 657 (Miss. 1971).\\n. Dixie Contractors, Inc., 249 So.2d at 657.\"}" \ No newline at end of file diff --git a/miss/12692461.json b/miss/12692461.json new file mode 100644 index 0000000000000000000000000000000000000000..4c4eb136f479994cdb50a14420882bc100fb5ee1 --- /dev/null +++ b/miss/12692461.json @@ -0,0 +1 @@ +"{\"id\": \"12692461\", \"name\": \"Victor L. MCBEATH a/k/a Victor McBeath, Appellant v. STATE of Mississippi, Appellee\", \"name_abbreviation\": \"McBeath v. State\", \"decision_date\": \"2018-11-13\", \"docket_number\": \"NO. 2017-KA-01090-COA\", \"first_page\": \"579\", \"last_page\": \"587\", \"citations\": \"271 So. 3d 579\", \"volume\": \"271\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Court of Appeals of Mississippi\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-27T21:07:30.510946+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"BEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.\", \"parties\": \"Victor L. MCBEATH a/k/a Victor McBeath, Appellant\\nv.\\nSTATE of Mississippi, Appellee\", \"head_matter\": \"Victor L. MCBEATH a/k/a Victor McBeath, Appellant\\nv.\\nSTATE of Mississippi, Appellee\\nNO. 2017-KA-01090-COA\\nCourt of Appeals of Mississippi.\\nNovember 13, 2018\\nATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF, CLARKSDALE\\nATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER, JACKSON\\nBEFORE LEE, C.J., WILSON AND WESTBROOKS, JJ.\", \"word_count\": \"4183\", \"char_count\": \"25052\", \"text\": \"WILSON, J., FOR THE COURT:\\n\\u00b6 1. Following a jury trial in the Neshoba County Circuit Court, Victor McBeath was convicted of first-degree murder and first-degree arson. On appeal, McBeath argues that his trial counsel provided ineffective assistance by failing to investigate or present an insanity defense and by failing to object to certain opinion testimony from law enforcement officers. We conclude that the present record is insufficient to address McBeath's claim. Therefore, we dismiss the claim without prejudice. McBeath may assert the claim in a properly filed motion for post-conviction relief. McBeath's convictions and sentences are affirmed.\\nFACTS AND PROCEDURAL HISTORY\\n\\u00b6 2. On the evening of November 25, 2015, McBeath and his brother Demonta were \\\"chilling\\\" with some friends at a house in Walnut Grove. Between 9 and 10 p.m., McBeath drove back to his father's house in Neshoba County, where he and Demonta lived. Fifteen to thirty minutes later, Demonta did the same. When Demonta arrived home, McBeath was on the couch in the living room, where he usually slept. Demonta testified that McBeath was \\\"acting delusional, psychotic, and he was talking out of his head.\\\" Demonta briefly talked to McBeath and then went to his bedroom, locked his door, and went to sleep. Demonta testified that when he went to bed, McBeath was still pacing in the living room and talking to himself. Their father, Ozie, was already asleep in his bedroom.\\n\\u00b6 3. Around 3:30 or 4 a.m., Demonta awoke to a gunshot and a scream. He jumped out of bed and ran into the hallway. He then saw McBeath walking toward him with a shotgun. McBeath did not say anything at first, but he seemed \\\"angry\\\"-\\\"[h]is eyes were bulged and he seemed dysfunctional.\\\" Demonta testified that McBeath then said to \\\"get the baby,\\\" although there was no baby in the house. When McBeath pointed the gun at him, Demonta \\\"tried to make a run for it.\\\" He knocked over a dresser, broke out a window, and tried to climb out. But McBeath still had the gun pointed at him. Demonta begged McBeath not to shoot him. When McBeath paused briefly, Demonta charged at him, knocked him down, and took the gun. Demonta asked McBeath what he had done, and McBeath said, \\\"Monta, I'm sorry.\\\"\\n\\u00b6 4. Demonta, now holding the shotgun, ran to Ozie's bedroom. He saw blood on a pillow but did not see Ozie, so he began searching other rooms. While Demonta looked for Ozie, McBeath found a rifle. Demonta and McBeath ran into each other outside Ozie's bedroom. Demonta hit McBeath with his shotgun, and a fight ensued. Demonta was able to take the rifle from McBeath, and he then continued his search for Ozie. Demonta finally found Ozie on a daybed in the living room. Ozie had been shot in the back of the head and appeared to be dead. Demonta then used a padlock to lock the shotgun and rifle in a bedroom, and he left the house in Ozie's Chevy Tahoe. As Demonta drove away, McBeath was pacing in the yard and still \\\"talking out of his head.\\\"\\n\\u00b6 5. Neshoba County deputy sheriffs Colby Clay and Greg Tubby went to the house to investigate. Clay knew McBeath because he had been called to the house several times on \\\"disturbance calls\\\" involving McBeath and Ozie. Clay and Tubby initially knocked on the door and waited, but after they saw fire coming out of a window, they kicked open the front door and entered the house. Once inside, they saw Ozie on the daybed. They tried to look for others, but there was too much smoke, so Tubby retrieved a fire extinguisher from their car and used it to put out the fire. Clay found a space heater in the dining room near the spot where the fire appeared to have started. Clay testified that he did not smell any accelerants at the time.\\n\\u00b6 6. Clay and Tubby then moved to the backyard. There was a tree line fifty feet or so behind the house, and Clay shined his flashlight into the trees and called, \\\"Victor, come out.\\\" After he called two or three times, McBeath responded, \\\"Mr. Clay, I'm coming out.\\\" McBeath then came out of the trees, and Clay handcuffed and arrested him. Clay testified that McBeath's \\\"demeanor was a bit spacey.\\\" McBeath was responsive as long as Clay could keep \\\"his attention,\\\" but he was also \\\"mumbling\\\" to himself incoherently. Clay testified that McBeath \\\"was acting different\\\" that night than during their prior encounters, but Clay did not smell any alcohol on McBeath. Clay said it was \\\"possible\\\" that McBeath was under the influence of drugs.\\n\\u00b6 7. Investigator Ralph Sciple determined that Ozie was shot in his bedroom while still lying down in his bed and then dragged through the house to the daybed. Sciple found the rifle and shotgun, a Winchester, in a locked bedroom and a pistol under Ozie's pillow. Sciple, who was also the arson investigator for Neshoba County, examined the dining room and the space heater and determined that the fire was set intentionally because \\\"[t]here was nothing else there that would . set it on fire.\\\" He testified that the space heater was not turned on at the time of the fire, so it could not have caused the fire.\\n\\u00b6 8. Sciple was unable to interview McBeath at the time of his arrest because he seemed to be \\\"under the influence of something.\\\" However, Sciple and Sheriff Tommy Waddell interviewed McBeath in jail a few days later. McBeath waived his Miranda rights and agreed to talk to Sciple and Waddell without an attorney. Sciple testified that McBeath did not appear to be under the influence of drugs or alcohol at the time of the interview. McBeath told Sciple and Waddell that he could not remember much about killing Ozie. McBeath said repeatedly that he was \\\"on some bad dope and went crazy.\\\" He told Sciple that the \\\"bad dope\\\" was methamphetamine.\\n\\u00b6 9. McBeath told Sciple that he remembered shooting Ozie, but he did not know why he did it. He said that he moved Ozie to the living room to try to get help. McBeath also admitted that he started the fire, but he said he could not remember what he used to start it. The interview was not recorded, and McBeath declined to make a written statement.\\n\\u00b6 10. McBeath was indicted for first-degree murder and first-degree arson. His attorney, James E. Smith III, filed a motion for a psychiatric evaluation to determine his competence to stand trial. In his motion, Smith stated that he believed that McBeath was mentally ill and unable to assist in his own defense. The court ordered an evaluation and directed the psychiatrist to assess McBeath's present ability to assist in his own defense and competence to stand trial. The court's order also directed the psychiatrist to assess McBeath's ability to know the difference between right and wrong at the time of the offense.\\n\\u00b6 11. Dr. Mark Webb evaluated McBeath. In his report, Webb noted that McBeath denied killing Ozie and claimed that \\\"they have the wrong person.\\\" McBeath told Webb that he had \\\"fired [Smith]\\\" and wanted a new attorney because Smith \\\"was not listening to [him].\\\" Webb noted that McBeath had no history of mental illness and was not taking any medications, although he claimed to have smoked \\\"a lot of marijuana\\\" prior to his arrest. Webb described McBeath as \\\"cooperative, logical and coherent, [and] fairly cheerful.\\\" McBeath told Webb that he had not experienced any hallucinations, delusions, or manic episodes. Webb found that McBeath's insight, judgment, memory, and concentration were all \\\"good.\\\" Webb further noted that \\\"McBeath laugh[ed] and joke[d] a good bit during the interview,\\\" and McBeath was adamant that he was \\\"not crazy.\\\" Webb's only diagnosis was \\\"Alcohol and Marijuana Use Disorder,\\\" which he based on McBeath's own descriptions of his alcohol and drug use. Webb concluded, \\\"McBeath is competent to stand trial and is not criminally insane.\\\"\\n\\u00b6 12. At a subsequent hearing, Webb reaffirmed the substance and conclusions of his report. Webb testified that McBeath understood his legal situation and the charges against him. Indeed, Webb testified that McBeath was \\\"actually a fairly intelligent person\\\" with no history of mental health issues. Webb testified that McBeath was competent to stand trial. He also testified that there was no evidence of any M'Naghten issue and that McBeath had no mental health issues other than alcohol and marijuana use. Webb testified that he found \\\"no reason to suggest that [McBeath] was insane at the time of the [offense].\\\" He found McBeath to be \\\"stone cold psychiatrically normal, except for his history of alcohol and drug abuse.\\\"\\n\\u00b6 13. McBeath did not testify or call any witnesses at his competency hearing. At the end of the hearing, the trial judge ruled that McBeath was competent to stand trial.\\n\\u00b6 14. Smith also filed a pretrial motion to withdraw as McBeath's counsel on the ground that McBeath had refused to cooperate or discuss the facts of the case. According to Smith's motion, McBeath also claimed during one meeting that Sheriff Waddell had \\\"stolen his mind.\\\" The circuit court held a hearing on Smith's motion to withdraw on the same day as McBeath's competency hearing. Two lawyers testified. Both had accompanied Smith to meet with McBeath and corroborated the substance of Smith's motion. One confirmed that McBeath had said something to the effect that the sheriff had stolen his mind.\\nMcBeath declined to testify during the hearing on Smith's motion to withdraw. At the conclusion of the hearing, the trial judge found-based on Dr. Webb's report and testimony-that McBeath clearly had the ability to cooperate with counsel. The judge then admonished McBeath to start cooperating with Smith, and he denied Smith's motion to withdraw.\\n\\u00b6 15. McBeath's case proceeded to trial on July 5-6, 2017. Demonta, Clay, Sciple, and three expert witnesses testified in the State's case-in-chief. Expert testimony established, among other things, that Ozie's DNA was on the shirt that McBeath wore on the night of the murder; that shotgun hulls found in Ozie's bedroom matched the Winchester shotgun; that Ozie died from a single shot to the back of the head; and that the shotgun was in direct contact with Ozie's head when it was fired. After the State rested, McBeath declined to testify and rested without calling any witnesses. The jury found McBeath guilty of first-degree murder and first-degree arson. The court sentenced McBeath to life imprisonment for murder and twenty years in the custody of the Department of Corrections for arson, with the sentences to run consecutively. McBeath filed a motion for judgment notwithstanding the verdict or a new trial, which was denied, and a timely notice of appeal.\\nANALYSIS\\n\\u00b6 16. On appeal, McBeath asserts that his trial counsel provided ineffective assistance by \\\"failing to raise an insanity defense and/or present an insanity defense instruction\\\" and by failing to interview witnesses to \\\"investigate\\\" a potential insanity defense. McBeath also argues that trial counsel was ineffective because he \\\"fail[ed] to object to speculative opinion testimony by police officers.\\\" We address these issues in turn below.\\n\\u00b6 17. \\\"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.\\\" Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on such a claim, the defendant must show both (1) \\\"that counsel's performance was deficient\\\"-i.e., \\\"that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment\\\"-and (2) that he was prejudiced as a result-i.e., \\\"that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.\\\" Id. at 687, 104 S.Ct. 2052. Stated differently, \\\"[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.\\\" Id. at 694, 104 S.Ct. 2052. \\\"A reasonable probability is a probability sufficient to undermine confidence in the outcome.\\\" Id. \\\"If either prong [of the Strickland test] is not met, the claim fails.\\\" Havard v. State , 928 So.2d 771, 781 (\\u00b6 8) (Miss. 2006).\\n\\u00b6 18. Ordinarily, a claim of ineffective assistance should be raised in a motion for post-conviction relief, not on direct appeal. We have explained that\\n[i]t is unusual for this Court to consider a claim of ineffective assistance of counsel when the claim is made on direct appeal because there is usually insufficient evidence within the record to evaluate the claim. Because an appellate court is limited to the trial record on direct appeal, issues of ineffective assistance of counsel are more appropriate in a motion for post-conviction relief. We may address such claims on direct appeal only if (a) the issues are based on facts fully apparent from the record or (b) the parties stipulate that the record is adequate, and we determine that additional findings of fact by a trial judge are not needed. If the record is not sufficient to address the claims on direct appeal, we dismiss the claims without prejudice, preserving the defendant's right to raise the claims later in a properly filed motion for post-conviction relief.\\nShinn v. State , 174 So.3d 961, 965 (\\u00b6 11) (Miss. Ct. App. 2015) (citations, quotation marks, and alterations omitted); see also Taylor v. State , 167 So.3d 1143, 1146 (\\u00b6 5) (Miss. 2015) (\\\"While post-conviction proceedings are often the most appropriate forum for review of ineffective assistance of counsel, we may nevertheless reach the merits of the ineffectiveness issue where the record affirmatively shows ineffectiveness of constitutional dimensions.\\\" (alterations and quotation marks omitted) ).\\nI. Insanity Defense\\n\\u00b6 19. As noted above, McBeath claims that his trial counsel was ineffective because he failed to pursue an insanity defense and failed to offer a jury instruction on the defense. Under this heading, McBeath also asserts that his trial counsel was ineffective because he \\\"fail[ed] to investigate\\\" a potential insanity defense. However, the State does not \\\"stipulate that the record is adequate\\\" to address this claim. Nor is a constitutional violation apparent from the face of the record. Therefore, we hold that McBeath's claim cannot be decided on direct appeal. The claim must be addressed, if at all, in a motion for post-conviction relief.\\n\\u00b6 20. To begin with, although McBeath did not testify, the record suggests that he did not want to pursue an insanity defense. McBeath made clear to Dr. Webb that he was \\\"not crazy,\\\" and he complained that his lawyer \\\"was not listening to\\\" his claim that he was innocent. As discussed above, Webb and the trial judge both concluded that McBeath was competent to stand trial, and the judge's ruling has not been challenged on appeal. Competence to stand trial and sanity at the time of the offense are distinct issues. But it is unclear that an attorney can assert an insanity defense without his client's consent. This appears to be an open issue in Mississippi, but most jurisdictions hold that defense counsel may not assert an insanity defense over the objection of a competent defendant. See, e.g. , McLaren v. State , 407 P.3d 1200, 1212 (Wyo. 2017) (collecting cases). We need not and do not address that legal issue in this case. Rather, we simply note that the record in this appeal does not even show that McBeath was willing to assert an insanity defense. In fact, the record suggests that he was opposed to it.\\n\\u00b6 21. More important, the record on appeal does not establish any reasonable probability that the jury would have found McBeath not guilty by reason of insanity. As discussed above, the trial judge specifically directed Dr. Webb to evaluate McBeath's sanity \\\"at the time of the alleged offense.\\\" Webb subsequently testified that he found no evidence of psychosis or any other possible M'Naghten issues. Webb noted that McBeath had no history of mental illness and was not taking any medications at the time of the offense. McBeath told Webb that \\\"[h]e was smoking a lot of marijuana and drinking prior to his arrest.\\\" But Webb testified that those are \\\"intoxication issues and not psychosis or things like that.\\\" Webb's testimony is consistent with the law in this State, as well as the jury instructions given in this case. \\\"[V]oluntary intoxication is not a defense to a specific intent crime, such as murder.\\\" Lanier v. State , 533 So.2d 473, 478 (Miss. 1988). \\\"An amplified restatement of the rule is: a defendant, capable of distinguishing between right and wrong when sober, is not entitled to an instruction submitting to the jury his inability to form the specific intent to commit an offense because of his voluntary intoxication at the time the offense was committed.\\\" Lee v. State , 403 So.2d 132, 134 (Miss. 1981).\\n\\u00b6 22. On appeal, McBeath ignores Dr. Webb's uncontradicted testimony that there was no evidence of psychosis or any other M'Naghten issue in this case. Instead, McBeath cites Demonta's testimony that he was \\\"acting delusional, psychotic, and he was talking out of his head.\\\" McBeath also relies on Demonta's hearsay testimony about a prior incident when their sister allegedly \\\"tried to tell [police] that [McBeath] was psychotic.\\\" McBeath also cites Clay's testimony that he was \\\"spacey\\\" and mumbling incoherently at the time of his arrest. Finally, McBeath relies on trial counsel's concerns about his ability to assist in his own defense and his bizarre statements about the sheriff stealing his mind. Relying on this lay testimony, McBeath's appellate counsel asserts that \\\"[p]roper preparation\\\" by trial counsel could have established that McBeath killed Ozie because of \\\"a severe psychotic episode.\\\"\\n\\u00b6 23. However, most of the lay testimony that McBeath cites on appeal is consistent with Dr. Webb's conclusion that McBeath was sane at the time of the offense and was not suffering from psychosis or any other mental illness. Moreover, there is no evidence in the record to show that McBeath's unusual behavior was caused by a mental illness, much less a mental illness that would satisfy the M'Naghten test. That is, there is nothing to show that McBeath was incapable of distinguishing \\\"right from wrong at the time of the offense.\\\" Hearn , 3 So.3d at 738 (\\u00b6 46). Given Dr. Webb's uncontradicted testimony that McBeath was sane and not suffering from any mental illness at the time of the offense, there is no \\\"reasonable probability\\\" that a jury would have found McBeath not guilty by reason of insanity. Strickland , 466 U.S. at 694, 104 S.Ct. 2052. Therefore, based on the evidence in the record on appeal, McBeath cannot establish \\\"prejudice\\\" under the second prong of the Strickland test. Id. ; see Epps v. State , 984 So.2d 1042, 1048-50 (\\u00b6\\u00b6 22-27) (Miss. Ct. App. 2008) (holding that the defendant was not prejudiced by his attorneys' failure to pursue an insanity defense because \\\"[h]e could not fulfill the requirements of M'Naghten \\\"). Because McBeath cannot satisfy Strickland 's second prong on the present record, it follows that he cannot prevail on his ineffective assistance claim in this appeal. Havard , 928 So.2d at 781 (\\u00b6 8).\\n\\u00b6 24. Rather than reject McBeath's ineffective assistance claim on the merits, we follow our usual practice and dismiss the claim without prejudice. As discussed above, we ordinarily decline to consider ineffective assistance claims on direct appeal. See Shinn , 174 So.3d at 965 (\\u00b6 11). In this appeal, McBeath argues in part that his counsel failed to interview witnesses to investigate a possible insanity defense. By its nature, such a failure-to-investigate claim cannot be evaluated on direct appeal because it alleges that counsel failed to discover evidence that is not in the record. See Page v. State , 987 So.2d 1035, 1037-38 (\\u00b6\\u00b6 7-12) (Miss. Ct. App. 2008). The mere fact that an insanity defense was not asserted does not mean that defense counsel did not investigate the issue. Id. at 1038 (\\u00b6 11). \\\"[D]efense counsel could have investigated [McBeath's] mental state and been unable to glean any useful evidence for [McBeath's] defense.\\\" Id.\\n\\u00b6 25. Moreover, McBeath's appellate counsel effectively concedes that his claim needs some support from outside the present record. In a footnote, appellate counsel states that his assertion that McBeath experienced a psychotic episode is based on his own review of \\\"several medical sources\\\" (i.e., websites) that do not appear in the record. The present record contains no such support for McBeath's allegation that he suffered from a mental illness at the time of the offense. See id. (declining to address a claim of ineffective assistance based on counsel's failure to pursue an insanity defense because the claim relied on a publication that did \\\"not appear in the record\\\"). Finally, as noted above, the State specifically declines to stipulate that the record on appeal is adequate to permit consideration of McBeath's claim. Accordingly, we dismiss McBeath's ineffective assistance claim without prejudice to his right to assert such a claim in a properly filed motion for post-conviction relief.\\nII. Failure to Object\\n\\u00b6 26. McBeath also complains on appeal that trial counsel failed to object to \\\"speculative opinion testimony\\\" by law enforcement officers. He refers to three such opinions. First, Clay testified that although McBeath did not appear to be under the influence of alcohol at the time of his arrest, it was \\\"possible\\\" that he was under the influence of drugs. Second, Sciple testified that the fire in the house was set intentionally because \\\"[t]here was nothing else [where the fire started] that would . set it on fire.\\\" Sciple explained that the space heater was not turned on, so it could not have started the fire. Third, Sciple testified when McBeath told him he had taken some \\\"bad dope\\\" (methamphetamine), he understood McBeath to mean that he \\\"had mixed meth with some other kind of chemical that he wasn't used to.\\\"\\n\\u00b6 27. McBeath devotes less than a page to this issue. He fails to develop any argument or cite any authority to show that a timely objection to the testimony at issue would have been sustained. That is, he simply asserts, without support, that the testimony was objectionable. We could hold that the issue is waived for that reason. See Randolph v. State , 852 So.2d 547, 558 (\\u00b6 29) (Miss. 2002).\\n\\u00b6 28. Instead, because the issue is related to McBeath's claim that trial counsel should have investigated and asserted an insanity defense, we also dismiss this claim without prejudice. McBeath may raise this allegation of ineffective assistance in a properly filed motion for post-conviction relief.\\nCONCLUSION\\n\\u00b6 29. McBeath's convictions and sentences are affirmed. His allegation that trial counsel provided ineffective assistance of counsel is dismissed without prejudice.\\n\\u00b6 30. AFFIRMED.\\nLEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.\\nDuring trial, McBeath made an ore tenus motion to suppress his oral statements to Sciple and Waddell. The court held a suppression hearing outside the presence of the jury, and both Sciple and Waddell testified. McBeath did not testify. The trial judge then denied McBeath's motion, finding that his Miranda waiver was valid and that his statement was free and voluntary. McBeath does not raise this issue on appeal.\\n\\\"Mississippi follows the M'Naghten test for determining whether a person was sane at the time of the crime. Under the M'Naghten test, the accused must be laboring under such defect of reason from disease of the mind as (1) not to know the nature and quality of the act he was doing or (2) if he did know it, that he did not know that what he was doing was wrong. In sum, the accused must not have known right from wrong at the time of the offense.\\\" Hearn v. State , 3 So.3d 722, 738 (\\u00b6 46) (Miss. 2008) (citations and quotation marks omitted).\\nDr. Webb testified that McBeath did not make any such claim when they met.\\n\\\"[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.\\\" Strickland , 466 U.S. at 697, 104 S.Ct. 2052. \\\"If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . that course should be followed.\\\" Id.\\nMcBeath may not file such a motion in the circuit court unless he obtains permission from the Mississippi Supreme Court. See Miss. Code Ann. \\u00a7 99-39-7 (Rev. 2015).\"}" \ No newline at end of file diff --git a/miss/12692505.json b/miss/12692505.json new file mode 100644 index 0000000000000000000000000000000000000000..de9dd9826e7dae6bf58cc4b5c4fd5b436dff8232 --- /dev/null +++ b/miss/12692505.json @@ -0,0 +1 @@ +"{\"id\": \"12692505\", \"name\": \"Hazel SMITH, Appellant v. HOWARD INDUSTRIES, INC. (Self Insured,) Appellee\", \"name_abbreviation\": \"Smith v. Howard Indus., Inc.\", \"decision_date\": \"2018-12-18\", \"docket_number\": \"NO. 2018-WC-00019-COA\", \"first_page\": \"774\", \"last_page\": \"781\", \"citations\": \"271 So. 3d 774\", \"volume\": \"271\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Court of Appeals of Mississippi\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-27T21:07:30.510946+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.\", \"parties\": \"Hazel SMITH, Appellant\\nv.\\nHOWARD INDUSTRIES, INC. (Self Insured,) Appellee\", \"head_matter\": \"Hazel SMITH, Appellant\\nv.\\nHOWARD INDUSTRIES, INC. (Self Insured,) Appellee\\nNO. 2018-WC-00019-COA\\nCourt of Appeals of Mississippi.\\nDecember 18, 2018\\nATTORNEY FOR APPELLANT: H. ALEXANDER BRINKLEY\\nATTORNEY FOR APPELLEE: RICHARD LEWIS YODER JR., LAUREL\\nBEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.\", \"word_count\": \"3039\", \"char_count\": \"18712\", \"text\": \"IRVING, P.J., FOR THE COURT:\\n\\u00b6 1. Hazel Smith appeals the decision of the Workers' Compensation Commission (Commission), asserting that two of its findings are unsupported by substantial evidence: (1) that Smith was capable of performing the substantial acts of her usual employment; and (2) that Smith was not permanently and totally disabled, but rather only suffered a partial, fifty percent loss of industrial use to her right upper extremity. We find that the Commission's decision is supported by substantial evidence; therefore, we affirm.\\nFACTS\\n\\u00b6 2. At the time of the events giving rise to this appeal, Smith was employed as a final assembler at Howard Industries Inc. She was sixty years old and had worked at Howard for approximately twenty years. She reached the eleventh grade in high school and did not obtain her GED. Prior to her employment at Howard, she worked various labor jobs, including as a shirt inspector at a factory in Arkansas; as a manager at a Pizza Hut; inspector of rice, sugar, and flour bags; and as an assistant manager at a resort. Her job as a final assembler at Howard consisted generally of pulling wire off of spools and then using a crimping gun to put leads on the wires. This job required Smith to repetitively grasp and pull the crimping gun and to lift bins containing parts that weighed more than twenty pounds. She fell into the pay grade of 11.3 and earned $12.56 per hour, which came to an average weekly wage of $807.\\n\\u00b6 3. On August 5, 2013, while operating the crimping gun, Smith felt a sharp, shooting pain throughout her arm. She immediately reported the injury to her supervisor and sought medical care, where she learned that she had sustained an injury to her right upper extremity. She also went on to develop bilateral carpal tunnel syndrome. Following her injury, Smith returned to Howard and continued to work in a different capacity-driving a forklift-until she had the first of several surgeries by Dr. Rocco Barbieri on December 18, 2013. On November 10, 2014, Dr. Barbieri diagnosed Smith with a four percent upper-extremity impairment, determined that she had reached maximum medical improvement (MMI), and summarized the findings of a functional capacity exam, which he approved and adopted in determining the work limitations to be placed on Smith:\\nA Functional Capacity Exam was performed by Drayer Physical Therapy and it demonstrated findings that the patient was recommended for a light duty level of work which [is] really no lifting more than 20 pounds and some specifics on avoiding paths that would require balance on uneven surfaces due to preexisting problem with polio. She also should avoid a combination of repetitive forceful grasping and vibration, as well as sustained posturing of the wrists greater than 30 degrees of flexion as this may worsen her carpal tunnel.\\nMy opinion, at this time, is that this Functional Capacity Evaluation is in line with what I perceived the patient being able to do regarding her work activities and I will release her to work with these restrictions of light duty limitations. Essentially, she will not be allowed to lift or carry more than 20 pounds, will avoid unusual postures of the wrist or sustained repetitive gripping actions.\\nSmith returned to Howard in September 2016. Her job title and pay grade stayed the same as prior to her injury, but her pay was raised to $12.96 per hour due to a company-wide increase. She was offered a new job that allegedly fell within her medical restrictions. This job consisted of pulling rubber tips off of threads. Smith testified that she attempted the job but was unable to pull the rubber tips off due to the immobility of her thumb. She was accompanied by John Risher, Howard's environmental and safety manager. When Smith informed Risher that she was unable to properly grip the rubber tips due to her thumb, he moved her to another job. She burned her arm and was subsequently sent home and told that someone from Howard would call her; however, she has not heard from Howard since that date. Smith contends that she searched for work elsewhere but was unsuccessful.\\n\\u00b6 4. Smith timely filed a petition to controvert on February 19, 2015. On February 1, 2017, an administrative judge (AJ) conducted a hearing to determine the existence and extent of permanent disability and any applicable penalties and interest. The parties stipulated that Smith's August 5, 2013 injury was work-related, that she began accruing disability on December 18, 2013, and that she reached MMI on November 10, 2014. The parties also stipulated that Smith's average weekly wage was $807.\\n\\u00b6 5. During the hearing, Smith testified regarding the requirements of her job. Pete Mills, a vocational rehabilitation counselor, testified that he went to Howard and observed several different positions. He developed a list of three different jobs that he believed fell within Dr. Barbieri's medical restrictions for Smith and issued a report including that information. Mills also conducted a job survey, wherein he analyzed Smith's past work history and education level and determined what types of jobs might be available to her. On January 12, 2017, ten days before the hearing, he composed a list of four openings for which Smith might be suited: openings at Red Lobster, Krystal, IHOP, and TGI Fridays. The pay for each of these positions was $7.25 per hour. Mills testified that on the day before the hearing, he went online and found that the TGI Fridays and IHOP positions had been filled. Despite this, Mills opined that he felt that Smith was able to find employment with a company other than Howard. Mills further opined that Smith had not been effectively conducting her job search; specifically, Mills testified that Smith had been writing \\\"light duty\\\" on each of her applications-which deterred potential employers-and there was inconsistency in the rate at which she was submitting applications.\\n\\u00b6 6. Risher testified that Smith was unable to return to her pre-injury position as a final assembler due to the medical restrictions imposed by Dr. Barbieri. He stated that the job that Smith was offered when she briefly returned in September 2016-removing rubber tips-fell within those restrictions. On cross-examination, Risher conceded that the duties required by the job removing rubber tips might require repetitive gripping actions, which fell outside of Dr. Barbieri's restrictions for Smith; however, Risher maintained that the job could be done with either hand. Risher further testified that the other two jobs on Mills's list were not offered to Smith because she told him she could not do the work.\\n\\u00b6 7. Following the hearing, the AJ issued an order finding that Smith had sustained a 50% industrial loss of use to her right upper extremity and that she consequently could not perform the substantial acts of her usual employment. The AJ ordered Howard to pay Smith permanent disability benefits of $449.12 beginning November 11, 2014, for a period of 100 weeks as compensation, with 10% interest added to each installment as provided by Mississippi Code Annotated section 71-3-37(5) (Rev. 2011).\\n\\u00b6 8. Smith appealed the AJ's findings, arguing that she erred in finding that Smith only suffered a 50% loss of industrial use to her right upper extremity and in performing a loss of wage-earning-capacity analysis to decide the industrial loss of use of a scheduled member, which is inconsistent with existing workers' compensation law. The Commission adopted the AJ's findings in relevant part and affirmed its finding that Smith suffered a 50% loss of industrial use to her right upper extremity; however, it amended the AJ's order to find that although Smith had suffered a loss of industrial use in excess of her medical impairment rating, she was capable of performing the substantial acts of her usual employment. Smith filed this timely appeal.\\nDISCUSSION\\n\\u00b6 9. Smith asserts two issues on appeal; however, because our analysis necessarily invokes both issues, we discuss them together. The standard of review regarding workers' compensation matters is well-settled in Mississippi caselaw:\\nIn workers' compensation cases, this Court's review is limited to determining whether the Commission's decision was supported by substantial evidence, was arbitrary and capricious, was beyond the scope or power of the agency to make, or violated constitutional or statutory rights. The Commission is the ultimate fact-finder and judge of the credibility of witnesses; therefore, we may not reweigh the evidence that was before the Commission. When the Commission's decision is supported by substantial evidence, it must be upheld. This remains true even though we might have reached a different conclusion were we the trier of fact. Furthermore, we are reminded that workers' compensation law is to be liberally and broadly construed, resolving doubtful cases in favor of compensation so that the beneficent purposes of the act may be accomplished.\\nHoward Indus. Inc. v. Hardaway , 191 So.3d 1257, 1261-62 (\\u00b6 10) (Miss. Ct. App. 2015) (citations and internal quotation marks omitted).\\n\\u00b6 10. As the Commission notes in its order, this is a scheduled-member case. \\\" Mississippi Code Annotated section 71-3-17 (Supp. 2014) provides two avenues for a claimant seeking compensation for loss of a scheduled member. Subsection (a) applies to claims for permanent total disability, whereas subsection (c) applies when . the claimant seeks permanent partial disability benefits.\\\" Hardaway , 191 So.3d at 1265-66 (\\u00b6 24). Determination of whether a claimant has suffered permanent total disability or permanent partial disability controls which analysis we conduct in order to calculate benefits.\\n\\u00b6 11. Here, Smith contends that she suffered permanent total disability and argues that both the AJ and the Commission erred in finding that she only sustained a 50% industrial loss of use of her right upper extremity. Smith maintains that despite her 4% medical impairment rating, she suffered a 100% industrial loss of use of her right upper extremity such that she has been rendered permanently and totally disabled. In support of her argument, Smith points to both her testimony and Risher's testimony that she was unable to return to the job she held pre-injury. Smith also argues that Howard presented no vocational testimony to show that Smith was employable post-injury. Howard, in contrast, argues that the evidence presented shows that Smith was not totally disabled: Mills, the vocational expert, located three jobs inside Howard and four jobs outside Howard that purportedly fell within Smith's medical restrictions. Howard maintains that Smith offered no evidence to suggest that she was unable to perform these jobs, aside from her own self-serving testimony that she was simply incapable of doing them.\\n\\u00b6 12. This Court in Howard Industries Inc. v. Satcher , 183 So.3d 907, 912 (\\u00b6 14) (Miss. Ct. App. 2016), set forth the requirements for establishing a prima facie case of permanent total disability where, as here, the claimant has only suffered a partial medical loss:\\nTo establish a prima facie case for permanent total disability, the claimant has the burden to show he has sought and been unable to find work in the same or other employment. The claimant must show he took reasonable efforts to find other employment. The claimant can also establish a prima facie case for total disability if, after reaching MMI, the claimant reports back to the employer for work and the employer refuses to reinstate or rehire him. After the claimant makes out a prima facie case, the burden shifts to the employer to rebut or refute the claimant's evidence by showing the claimant's efforts were not reasonable or were a sham. The issue of whether a claimant's permanent disability is partial or total is a question of fact determined by the evidence as a whole, including both lay and medical testimony.\\n(Citations and internal quotation marks omitted). \\\"To determine the reasonableness of the claimant's job search, factors are examined such as job availability, economics of the community, the claimant's skills and background, and the nature of the disability.\\\" Id. at 913 (\\u00b6 17). \\\"Another consideration in determining disability is wage-earning capacity. Factors examined for loss of wage-earning capacity include the amount of education and training that the claimant has had, inability to work, failure to be hired elsewhere, and the continuance of pain.\\\" Id. \\\"In order to be deemed permanently totally disabled under Mississippi Code Annotated section 71-3-17(a) (Rev. 2000), a claimant must show something more than an inability to return to the job existing at the time of injury.\\\" Flowers v. Crown Cork & Seal USA Inc. , 168 So.3d 1009, 1018 (\\u00b6 27) (Miss. Ct. App. 2013).\\n\\u00b6 13. Based on the above caselaw, it is this Court's opinion that the Commission and AJ correctly concluded that Smith was not permanently and totally disabled. Although Smith testified at trial that she was unable to perform the jobs offered to her upon her return to Howard in September 2016, this testimony, combined with her contention that she is unemployable, is not sufficient to overcome the high burden of showing that the Commission's decision was unsupported by substantial evidence.\\n\\u00b6 14. We note, as the Commission also properly noted, that a rebuttable presumption of total occupational loss arises where a permanent partial disability renders the claimant unable to continue in the position she held at the time she sustained her work-related injury, \\\"subject to other proof of the claimant's ability to earn the same wages which the claimant was receiving at the time of injury.\\\" Meridian Prof'l Baseball Club v. Jensen , 828 So.2d 740, 747 (\\u00b6 21) (Miss. 2002). This presumption arises \\\"when the claimant establishes that he has made a reasonable effort but has been unable to find work in his usual employment, or makes other proof of his inability to perform the substantial acts of his usual employment.\\\" Id. at 747-48 (\\u00b6 21). The employer may rebut this presumption by pointing to \\\"all the evidence concerning wage-earning capacity, including education and training which the claimant has had, his age, continuance of pain, and any other related circumstances.\\\" Id. at 748 (\\u00b6 21).\\n\\u00b6 15. Here, Smith contends that the Commission's decision that she was able to perform the substantial acts of her usual employment is unsupported by substantial evidence. However, we disagree. Smith relies on the fact that Risher, Howard's representative, conceded that she could not return to the job she held pre-injury as proof that she was unable to perform the substantial acts of her usual employment. However, Mississippi caselaw is clear that \\\" 'usual employment' is broader in scope than the job [that the claimant] held at the time of injury.\\\" Id. at 747 (\\u00b6 20). \\\"Usual employment in this context means the jobs in which the claimant has past experience, jobs requiring similar skills, or jobs for which the worker is otherwise suited by his age, education, experience, and any other relevant factual criteria.\\\" Id.\\n\\u00b6 16. We note that Smith failed to provide any evidence or testimony that she was, in fact, unable to perform the job presented to her in September 2016 when she returned to Howard for a few hours. All we have to rely upon is her own testimony that she was unable to perform the job. In contrast, we have testimony from both Risher and Mills that the job offered to Smith-removing rubber tips-fell within her medical restrictions. Smith provided insufficient evidence to overcome the high burden of showing that the Commission's decision was unsupported by substantial evidence with respect to this issue. As such, we affirm the Commission's finding that she was capable of performing the substantial acts of her employment.\\n\\u00b6 17. Section 71-3-17(c) (Rev. 2011) provides the following:\\nIn case of disability partial in character but permanent in quality, the compensation shall be sixty-six and two-thirds percent (66-2/3%) of the average weekly wages of the injured employee, subject to the maximum limitations as to weekly benefits as set up in this chapter, which shall be paid following compensation for temporary total disability paid in accordance with paragraph (b) of this section, and shall be paid to the employee as follows:\\nMember Lost Number Weeks Compensation (1) Arm 200\\n.\\n\\u00b6 18. As previously stated, the AJ ordered Howard to pay Smith $449.12 per week for a period of 100 weeks. She included the following analysis in her order:\\n[Smith] applied for the four positions [that] were identified in the vocational report - Red Lobster; Krystal; IHOP; and TGI Fridays. All of those positions offered $7.25 per hour. At the time of her injury, Smith was making $12.56 per hour with the Employer. If Smith had actually been hired by one of those employers, she would have suffered a $5.31 per hour loss of wages, which calculates to a $212.40 loss per week or an approximate 42% loss of wages. If overtime were considered, Smith would lose about half of her weekly income by taking one of the four positions identified by the vocational expert.\\nWe find substantial evidence supporting the Commission's finding that Smith was not totally and permanently disabled and that she suffered only a 50% industrial loss of a scheduled member. Therefore, it follows that Smith was not entitled to 450 weeks of compensation for permanent-total disability or 200 weeks of compensation for loss of a scheduled member. The order of the Commission awarding Smith $449.12 for one hundred weeks is AFFIRMED.\\nLEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.\\nDr. Barbieri performed one surgery to treat her carpal tunnel syndrome and two surgeries to treat her thumb injury.\\nOf note is the fact that \\\"there is a difference between the job-search requirement for a claim for permanent total disability benefits under subsection (a) and the job-search requirement for a claim for permanent partial disability benefits under subsection (c). A claim made under subsection (a) is subject to the most rigorous test for disability, which requires convincing medical proof of total disability and a legitimate job search for suitable employment.\\\" Hardaway , 191 So.3d at 1266 (\\u00b6 25) (internal quotation marks omitted).\"}" \ No newline at end of file diff --git a/miss/12695564.json b/miss/12695564.json new file mode 100644 index 0000000000000000000000000000000000000000..7da525f3b0f6e79d44c3f9f1d5de5f8dd62f59f8 --- /dev/null +++ b/miss/12695564.json @@ -0,0 +1 @@ +"{\"id\": \"12695564\", \"name\": \"Matthew Blake COURTNEY a/k/a Matthew Courtney v. STATE of Mississippi\", \"name_abbreviation\": \"Courtney v. State\", \"decision_date\": \"2019-05-02\", \"docket_number\": \"NO. 2017-KA-01267-SCT\", \"first_page\": \"1032\", \"last_page\": \"1048\", \"citations\": \"275 So. 3d 1032\", \"volume\": \"275\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-27T21:07:32.692916+00:00\", \"provenance\": \"Fastcase\", \"judges\": \"EN BANC.\", \"parties\": \"Matthew Blake COURTNEY a/k/a Matthew Courtney\\nv.\\nSTATE of Mississippi\", \"head_matter\": \"Matthew Blake COURTNEY a/k/a Matthew Courtney\\nv.\\nSTATE of Mississippi\\nNO. 2017-KA-01267-SCT\\nSupreme Court of Mississippi.\\nMay 2, 2019\\nRehearing Denied August 8, 2019\\nATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, Jackson, MOLLIE M. McMILLIN\\nATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: KAYLYN HAVRILLA McCLINTON, Jackson\\nEN BANC.\", \"word_count\": \"7541\", \"char_count\": \"46142\", \"text\": \"COLEMAN, JUSTICE, FOR THE COURT:\\n\\u00b61. Matthew Blake Courtney appeals his conviction of one count of sexual battery in violation of Mississippi Code Section 97-3-95(1)(a) (Rev. 2014). The trial court sentenced Courtney to serve a period of twenty-five years. Courtney argues that the statute of limitations barred his sexual battery conviction. Alternatively, Courtney argues that the delay in bringing him to trial violated his Sixth Amendment constitutional right to a speedy trial. The record is devoid of Courtney having raised the statute of limitations argument before now. Accordingly, Courtney has waived the defense. As to the alternative argument of speedy trial, the Court looks at the traditional speedy-trial analysis and holds that the State did not deny Courtney a speedy trial. Therefore, we affirm Courtney's conviction and sentence.\\nFACTS AND PROCEDURAL HISTORY\\n\\u00b62. On or about November 2, 2012, the victim and her boyfriend went to a party at twenty-one-year-old Dustin McLeod's house in Greene County. The victim and her boyfriend were both fifteen years old. They and their friends shared a half-gallon of liquor and became highly intoxicated at the party. The victim passed out under a tree. Her very drunk boyfriend enlisted the help of Harley Prentiss, McLeod, and Courtney to move the victim from the ground to a small camper behind the trailer home on the property. After the victim was placed on the bed in the camper, her boyfriend laid down beside her; he did not think anyone else was inside the camper with them. He then became sick and exited the camper to vomit. He later testified that Courtney was outside the camper and told him not to go back inside since he was sick. When the victim's boyfriend attempted to get back in the camper, someone on the inside pulled the door shut, and the boyfriend heard a male laughing inside the camper.\\n\\u00b63. When the boyfriend awoke before dawn, he entered the camper and saw the victim lying on the bed and Prentiss asleep on the couch. When Prentiss woke up around seven o'clock in the morning, he and the boyfriend realized that the victim was unresponsive. Prentiss told the victim's boyfriend that he and the victim needed to leave. Allen, Prentiss, and another partygoer dropped the two fifteen-year-olds off at a cemetery. The boyfriend contacted the victim's sister, who immediately came to pick them up. According to the victim's sister, when she arrived, she thought that the victim was dead and noticed that while the victim's clothes were on, they were not fastened as they should have been. The victim's sister rushed her across the street to the hospital; caregivers transferred her to the University of South Alabama Hospital in Mobile, Alabama.\\n\\u00b64. While the victim was in a medically induced coma in Mobile, doctors noticed injuries consistent with sexual contact; the hospital contacted law enforcement. A rape kit was performed, and stains on the victim's jeans were tested against DNA samples from several partygoers, including Courtney. One sample was consistent with Prentiss's DNA; Courtney's and McLeod's DNA could not be excluded from a different sample.\\n\\u00b65. McLeod testified at Courtney's trial. Prentiss told McLeod and Courtney that Prentiss had sex with the victim after carrying her to the camper. McLeod said that Courtney walked to the camper and said that he \\\"was going in next.\\\" McLeod further testified that he saw the camper rock back and forth like it did earlier when Prentiss was inside. McLeod said that, when Courtney was finished, Courtney exited the camper and told him that it was his turn to \\\"go get you some now.\\\" McLeod stated that Allen went in next and that McLeod went in after that.\\n\\u00b66. The victim denied consenting to engage in sex with anyone at the party and testified that she had no memory of the assaults. The last memory she had from the party was sitting under the tree with her friends.\\n1. The Youth Court Proceedings\\n\\u00b67. On the day of the crime, Courtney had been seventeen years old for two weeks. DNA testing results implicating Courtney were returned on February 20, 2013. More than a year later, on May 2, 2014, a petition was filed in the youth court stating that, \\\"on or about 11/02/2012, in Greene County, Mississippi, Matthew Blake Courtney did purposefully, knowingly, and unlawfully commit the act of sexual battery of another person without his or her consent in violation of \\u00a7 97-3-95(1)(a) . Youth did willfully unlawfully, and feloniously engage in sexual penetration of [L.C.] without her consent.\\\" Three days later, a motion to transfer the petition to the circuit court was filed in youth court. Thirteen months after the motion was filed, on June 30, 2015, the youth court ordered the transfer, and Courtney's case was transferred to circuit court.\\n2. Circuit Court Proceedings\\n\\u00b68. After Courtney's case was certified to circuit court, an arrest warrant was issued on July 8, 2015. On September 18, 2015, a Greene County grand jury indicted Courtney for sexual battery. Courtney was scheduled for arraignment in November, but the circuit court ordered an agreed continuance until December so that Courtney could retain counsel. The record shows confusion about who was representing Courtney, and the scheduled arraignment in December was further continued to February 2016. In February, Courtney still lacked counsel. The circuit court then appointed David Futch. The circuit court set a status hearing for April 7, 2016, and trial for May 23, 2016. Courtney then waived arraignment on April 7, 2016, and pleaded not guilty.\\n\\u00b69. Courtney attempted to invoke his right to a speedy trial on May 11, 2016, by including it in the body of his discovery request. Twelve days later, Courtney and the State agreed to a continuance, scheduling trial for August 15, 2016. On the scheduled day of trial, the circuit court granted a joint ore tenus motion for additional time to prepare for trial, and a status hearing was set for September 15, 2016, with trial scheduled for November 14, 2016. On September 14, 2016, Futch filed a motion to withdraw as counsel. A day later, the circuit court granted the parties' second joint continuance motion, citing ongoing plea negotiations. A day later, Courtney filed the following three motions: (1) a motion requesting funds for an independent DNA test and DNA expert; (2) a motion to sever his trial from that of his codefendants; and (3) a motion for dismissal for speedy-trial violations.\\n\\u00b610. While Courtney's motions were pending, the trial date remained in November 2016. Then, the State and Courtney agreed to another order of continuance, citing the need for additional time to prepare for trial. Motion hearings were set for December 2016 and trial for February 27, 2017. Motion hearings were rescheduled to the next term. On February 27, 2017, Courtney made an ore tenus motion for a continuance for additional time, and trial was again rescheduled for May 15, 2017. On April 21, 2017, the circuit court denied Courtney's speedy-trial motion. On May 15, 2017, Courtney again moved for a continuance. Trial took place on August 15, 2017, and the jury convicted Courtney.\\nSTANDARD OF REVIEW\\n\\u00b611. The Court \\\"applies a de novo standard of review to the statute of limitations.\\\" Fletcher v. Lyles , 999 So.2d 1271, 1276 (\\u00b6 20) (Miss. 2009) (citing Ellis v. Anderson Tully Co. , 727 So.2d 716, 718 (\\u00b6 14) (Miss. 1998) ). The standard of review of a speedy-trial claim encompasses a review of the facts and questions whether the trial delay arose from good cause. DeLoach v. State , 722 So.2d 512, 516 (\\u00b6 12) (Miss. 1998). The Court will uphold a decision based on substantial, credible evidence. Folk v. State , 576 So.2d 1243, 1247 (Miss. 1991). The State further \\\"bears the burden of proving good cause for a speedy trial delay, and thus bears the risk of nonpersuasion.\\\" DeLoach , 722 So.2d at 516 (\\u00b6 12) (citing Flores v. State , 574 So.2d 1314, 1318 (Miss. 1990) ).\\nDISCUSSION\\nI. The Statute of Limitations\\n\\u00b612. Both parties on appeal agree that a two-year statute of limitations applies to the crime at issue. See Miss. Code Ann. \\u00a7 99-1-5 (Rev. 2015). The parties disagree as to how or if the statute of limitations was affected by the youth court proceedings. Courtney argues that, because he was not arrested for sexual battery until July 8, 2015, a date two years and eight months after the crime on November 2, 2012, the State was barred from prosecuting him. Courtney contends that the statute of limitations had expired on November 3, 2014, before he was arrested or indicted. The State counters that the intake petition for the youth court proceedings served as an indictment against Courtney on May 2, 2014, or fewer than two years from the date of the crime. However, statutes of limitation are affirmative defenses that can be waived if not raised. Conerly v. State , 607 So.2d 1153, 1158 (\\u00b6 17) (Miss. 1992) (holding that statutes of limitation in criminal cases \\\"[are] not jurisdictional but [are] an affirmative defenses that may be waived\\\"). Courtney waived the defense by never raising the statute of limitations issue in the circuit court in a written or ore tenus motion.\\nII. Constitutional Right to Speedy Trial\\n\\u00b613. Courtney asserts that the State violated his right to a speedy trial. To determine whether his argument has merit, we must first determine when criminal proceedings against him began. The State contends that criminal proceedings began the date Courtney waived arraignment, April 7, 2016. See Walker v. State , 196 So.3d 978, 982 (\\u00b6 17) (Miss. Ct. App. 2015) (\\\"If a defendant waives arraignment, that date is considered day one on the speedy trial calendar.\\\" (quoting Mayo v. State , 886 So.2d 734, 738 (\\u00b6 17) (Miss. Ct. App. 2004) ) ). However, the above-described rule applies to a defendant's statutory right under Mississippi Code Section 99-17-1 (Rev. 2015)-not one's constitutional right. Although throughout its brief the State conflates the speedy-trial statute and the precedent surrounding it with the constitutional right to a speedy trial, Courtney argues only the constitutional right.\\n\\u00b614. Courtney contends that \\\"[a] formal indictment or information or an arrest-whichever occurs first-triggers the constitutional right to a speedy trial.\\\" McBride v. State , 61 So.3d 138, 142 (\\u00b6 8) (Miss. 2011) (citing United States v. Marion , 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) ). Courtney is correct. Walker , 196 So.3d at 984 (\\u00b6 31) (emphasis added) (\\\"Under the statutory speedy-trial analysis, the right attaches at the arraignment or waiver of arraignment, but the constitutional right attaches at the arrest or indictment.\\\") \\\"In short, the constitutional right to a speedy trial attaches when a person has been accused.\\\" Smith v. State , 550 So.2d 406, 408 (Miss. 1989) (citing Beavers v. State , 498 So.2d 788, 789-90 (Miss. 1986), overruled on other grounds by State v Ferguson , 576 So.2d 1252 (Miss. 1991) ). Accordingly, Courtney's arrest date, July 8, 2015, serves as day one of the constitutional speedy-trial clock for his criminal proceedings.\\n\\u00b615. The dissent contends that the clock began running with the filing of the youth court petition. Diss. \\u00b6 38. However, youth court proceedings are civil in nature. Miss. Code Ann. \\u00a7 43-21-203(5) (Rev. 2015). \\\"One's right to a speedy trial as a matter of common sense has reference to that point in time when the prosecution may begin to crank up the machinery of the criminal justice process.\\\" Beavers v. State , 498 So.2d 788, 790 (Miss. 1986). The State did not do so until Courtney's arrest. We have consistently held that the arrest or indictment of the defendant establishes that point in time. \\\"The constitutional right to a speedy trial attaches 'at the time of a formal indictment or information or else the actual restraints imposed by arrest and holding to a criminal charge .\\\" Johnson v. State , 235 So.3d 1404, 1417 (\\u00b6 45) (Miss. 2017) (emphasis added) (quoting Rowsey v. State , 188 So.3d 486, 495 (\\u00b6 24) (Miss. 2015) ); Perry v. State , 419 So.2d 194, 198 (Miss. 1982) (The constitutional right to a speedy trial attaches \\\"at the time of a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge.\\\" (citing Baker v. McCollan , 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) ; Dillingham v. United States , 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975) ) ).\\n\\u00b616. The dissent relies on Breed v. Jones , 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), and In re Gault , 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), for the proposition that the distinction between civil proceedings in youth court and criminal proceedings in circuit court is illusory. Diss. \\u00b6 43. In Breed , the United States Supreme Court held that juvenile proceedings against a defendant put the defendant in jeopardy, and, accordingly, subsequent criminal actions against the same defendant violated the prohibition against double jeopardy. Breed , 421 U.S. at 529-30, 95 S.Ct. 1779. In Gault , the Court extended the right to remain silent to juvenile court proceedings. Gault , 387 U.S. at 55, 87 S.Ct. 1428. However, the Supreme Court has never held that a youth court proceeding qualifies as a \\\"criminal prosecution\\\" under the Sixth Amendment such that it would trigger the running of the speedy-trial right. See McKeiver v. Pennsylvania , 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). In McKeiver , the Court concluded that the Sixth Amendment did not mandate a jury trial in juvenile proceedings. Id. at 545, 91 S.Ct. 1976. The McKeiver Court eschewed a rote approach to the classification of juvenile proceedings as either criminal or civil when it wrote, \\\"Little, indeed, is to be gained by any attempt simplistically to call the juvenile court proceeding either 'civil' or 'criminal.' The Court carefully has avoided this wooden approach.\\\" Id. at 541, 91 S.Ct. 1976.\\n\\u00b617. We decline the dissent's invitation to change our existing law and include youth court petitions in the category with arrests and indictments for purposes of starting the speedy-trial clock. As an initial matter, in Breed and Gault , the Supreme Court addressed whether due process protections applicable to criminal proceedings would apply in juvenile proceedings, but the question before us today is different. The constitutional right to a speedy trial certainly applies to the underlying prosecution of Courtney. The question raised by the dissent is whether the initial youth court proceedings suffice to begin the speedy-trial clock applicable to Courtney in the criminal proceedings. Gault , Breed , and their progeny examine the \\\"parens patriae interest in preserving and promoting the welfare of the child.\\\" Schall v. Martin , 467 U.S. 253, 263, 104 S.Ct. 2403, 81 L.Ed.2d 207 (1984) (quoting Santosky v. Kramer , 455 U.S. 745, 766, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) ). They do so for the purpose of determining the extent to which due process requires various constitutional protections to apply to juvenile proceedings. We are not faced with deciding whether the right to a speedy trial applies to youth court proceedings but, rather, when the clock begins to run for purposes of the criminal proceedings against Courtney. Accordingly, the Gault line of cases is of limited, if any, use.\\n\\u00b618. Furthermore, in Breed and Gault , the United States Supreme Court drew heavy parallels between the juvenile and criminal systems at issue in the two cases. For example, in Breed , the Court wrote that a juvenile being found to have committed a criminal act in both the criminal and juvenile justice systems involves \\\"consequences includ[ing] both the stigma inherent in such a determination and the deprivation of liberty for many years.\\\" Breed , 421 U.S. at 529, 95 S.Ct. 1779. The Breed Court wrote of anxiety and insecurity that can result from a juvenile proceeding. Id. Finally, the Breed Court wrote that the California juvenile court and criminal court systems shared the \\\"very vital interest in enforcement of criminal laws.\\\" Id. at 531, 95 S.Ct. 1779 (quoting United States v. Jorn , 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) ). There has been no showing here that the purposes of Mississippi's youth court statutes so closely match that of Mississippi's criminal justice system.\\n\\u00b619. The dissent points out that our youth court statutes define delinquent acts as acts that would be criminal if committed by an adult. Diss. \\u00b6 44. However, while delinquent acts suffice to invoke both the youth court and adult criminal courts, the similarity does not speak to the purposes of the act focused upon by the Breed , Gault , and McKeiver Courts. Mississippi Code Section 43-21-561(5) (Rev. 2015) forbids any youth court adjudication from imposing \\\"any of the civil disabilities ordinarily imposed on an adult because of a criminal conviction .\\\" It further forbids consideration of such a youth as a criminal, consideration of the adjudication as a conviction, and use of the adjudication for impeachment purposes in court. Id. It allows the youth in question to deny, without consequence, the existence and result of any youth court proceeding. Miss. Code Ann. \\u00a7 43-21-561(5). Mississippi Code Section 43-21-605 mandates that, once a child is found to be delinquent, the disposition must be \\\"the least restrictive alternative appropriate to the best interest of the child and the community,\\\" it must allow the child to remain in \\\"reasonable proximity\\\" to the child's home community in light of the available alternatives and \\\"the best interest of the child and the state,\\\" and it must state that the youth court considered the rehabilitative services required by the child. Miss. Code Ann. \\u00a7 43-21-605 (Rev. 2015).\\n\\u00b620. Each of the above-listed statutory requirements leads to the conclusion that Mississippi's youth court system exists to achieve purposes and use means that differ from the criminal system. To lump the two together simply because both address criminal activity but to disregard the differing methods and goals of the two systems is to adopt the \\\"wooden approach\\\" eschewed by the United States Supreme Court. McKeiver v. Pennsylvania , 403 U.S. 528, 541, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).\\n\\u00b621. Similarly, there is no evidence in the record supporting the contention that Courtney faced stigma, anxiety, and insecurity following the filing of the youth court petition. We consider persuasive the reasoning of the Superior Court of Pennsylvania in Commonwealth v. Dallenbach , 729 A.2d 1218 (Pa. Super. Ct. 1999). In Dallenbach the Pennsylvania court held that a juvenile enjoys the right to a speedy trial. Again no issue in the present case exists about whether Courtney enjoyed the constitutional right to a speedy trial-he did. The question for today is whether the youth court petition can be considered \\\"the machinery of the criminal justice process\\\" such that it triggered the running of the clock. Beavers v. State , 498 So.2d 788, 790 (Miss. 1986).\\n\\u00b622. In any event, the Dallenbach Court relied on facts not in the record before us, e.g. , that \\\"children experience an acceleration in the passage of time so that, to a juvenile, one year might seem to be five.\\\" Dallenbach , 729 A.2d at 1220 (\\u00b6 10). The same can be written of the Iowa Supreme Court's decision in In the Interest of C.T.F. , 316 N.W.2d 865 (Iowa 1982), also cited by the dissent. For example, the Iowa court relied on facts indicating that being subject to juvenile proceedings causes stress, concern, and anxiety. Id. at 868-869. However, we may only act on the record before us. Oakwood Homes Corp. v. Randall , 824 So.2d 1292, 1293 (\\u00b6 4) (Miss. 2002) (citing Branch v. State , 347 So.2d 957, 958-59 (Miss. 1977) ). \\\"Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them.\\\" Randall , 824 So.2d at 1294 (\\u00b6 4) (quoting Mason v. State , 440 So.2d 318, 319 (Miss. 1983) ).\\n\\u00b623. More applicable to the case sub judice is the Supreme Court of New Hampshire's decision in State v. Justus , 140 N.H. 413, 666 A.2d 1353 (1995). There, the same issue confronted the New Hampshire Court that confronts us today-whether the speedy-trial clock began to run with juvenile proceedings or with the indictment of the defendant as an adult. Id. at 415, 666 A.2d 1353. The New Hampshire Court joined courts from Alabama, Arizona, and Ohio in holding, as we do today, that the clock begins running with the instigation of criminal proceedings. Id. (citing Cruse v. State , 489 So.2d 694, 697 (Ala. Crim. App. 1986) ; State v. Myers , 116 Ariz. 453, 454-55, 569 P.2d 1351, 1352-53 (1977) (en banc); State v. Trapp , 52 Ohio App. 2d 189, 368 N.E.2d 1278, 1280 (1977) ).\\n\\u00b624. We discern no reason to hold that, pursuant to applicable Sixth Amendment jurisprudence, the Due Process clause requires the speedy-trial clock applicable to the criminal proceedings against Courtney to begin running with the filing of the youth court petition.\\n\\u00b625. Speedy-trial claims are analyzed under the Barker test. Barker requires a balancing of four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) prejudice to the defendant. Barker v. Wingo , 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Barker Court explained that each case must be considered \\\"on an ad hoc basis\\\" and that it sought only to \\\"identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right\\\" to a speedy trial. Id. The Court wrote,\\nWe regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.\\nId. at 533. See also Bateman v. State , 125 So.3d 616, 633 (\\u00b6 59) (Miss. 2013) (The Barker factors must be balanced \\\"along with other relevant circumstances.\\\") The State bears the burden of proving good cause for a speedy-trial delay and thus bears the risk of nonpersuasion. DeLoach v. State , 722 So.2d 512 (Miss. 1998). The sole remedy for a speedy-trial violation is reversal of the trial court's decision and dismissal of the charges against the defendant. Price v. State , 898 So.2d 641, 647 (\\u00b6 11) (Miss. 2005).\\n1. Length of Delay\\n\\u00b626. When the delay between a defendant's indictment (or arrest) and trial is more than eight months, it is presumptively prejudicial and triggers a balancing of the remaining three Barker factors.\\nState v. Woodall , 801 So 2d 678, 681-82 (\\u00b6 11) (Miss. 2001). Here, authorities arrested Courtney on July 8, 2015. The circuit court tried him on August 15, 2017. The delay of 769 days is presumptively prejudicial and triggers a consideration of the remaining Barker factors.\\n2. Reason for Delay\\n\\u00b627. The State bears the burden of providing a speedy trial. Hersick v. State , 904 So.2d 116, 121 (\\u00b6 7) (Miss. 2004). \\\"The State bears the concomitant burden of showing that either the delay was caused by the defendant or that the delay was for good cause.\\\" Id. When the State is unable to do either, the factor must be weighted against the State. Id. Delays caused by the defense, such as requests for continuances, will toll the running of the speedy-trial clock for the length of time attributable to the continuance. Id.\\n\\u00b628. Here, Courtney was formally indicted on September 18, 2015. When a defendant is indicted by the first available grand jury in the county, the time between arrest and indictment is not counted against either the state or the defense. Brengettcy v. State , 794 So.2d 987, 993 (\\u00b6 14) (Miss. 2001). The record does not mention if Courtney was indicted by the first available grand jury, but the grand jury indicted Courtney three months after the circuit court obtained jurisdiction. Neither party suggests that the indicting grand jury was not the first available, and Courtney argues that the speedy-trial clock began running on the date of his indictment rather than on the earlier date of his arrest. Accordingly, the delay between arrest and indictment is not counted against the State.\\n\\u00b629. The record contains several continuances that delayed Courtney's arraignment and trial. Agreed continuances are weighed against the defense. Sharp v. State , 786 So.2d 372, 380-81 (\\u00b6 7) (Miss. 2001). The trial court attempted to arraign Courtney on November 16, 2015, but Courtney indicated that he had retained an attorney who was not present in the courtroom. The record reflects that the attorney, when contacted by phone, denied having been retained to represent Courtney. By order dated November 19, 2015, the circuit court continued Courtney's arraignment until December 1, 2015, in order to allow Courtney to retain counsel. Courtney caused the November 2015 continuance by mistakenly believing the attorney in question represented him when he did not, and the delay occasioned does not count against the State.\\n\\u00b630. The trial court made a second attempt at arraignment on December 1, 2015. Courtney continued to claim the same attorney represented him, but the attorney present in the courtroom told the trial court that although he had discussed representing Courtney with Courtney's family, he did not yet do so. The court granted a second continuance of the arraignment by agreed order dated December 18, 2015, postponing the arraignment until February 8, 2016. Again, Courtney's confusion regarding who would represent him occasioned the delay. The problem continued to arise on February 8, 2016, when the court again attempted to arraign Courtney. At the February 2016 hearing, the trial court decided to appoint counsel for Courtney. By order dated February 8, 2016, and again for the purpose of allowing Courtney time to retain counsel, the trial court granted the parties' joint motion to continue and postponed the arraignment until May 23, 2016. On April 7, 2016, Courtney waived arraignment, and the record reflects that the circuit judge set trial for May 23, 2016. Because Courtney's confusion regarding retaining counsel caused the totality of the delay between Courtney's arrest and waiver of arraignment, the delay so occasioned does not weigh against the State.\\n\\u00b631. After Courtney waived arraignment and the court set the first trial date, the motions for continuance began. On May 23, 2016, the trial court granted the parties' joint motion for a continuance and continued the trial until August 16, 2016. By order dated August 15, 2016, the trial court granted another joint motion for a continuance and moved the trial date to November 14, 2016. An order dated September 15, 2016, duplicated the relief granted on August 15, 2016, in that it also purported to grant the parties' joint motion for a continuance and to continue the trial until November 14, 2016, to allow time for plea negotiations. The circuit judge again continued trial upon joint motion of the parties by order dated November 16, 2016, and reset the trial for February 27, 2017. On February 27, 2017, on Courtney's motion, the trial court continued the trial until May 14, 2017. The next continuance came via order dated May 15, 2017, granting Courtney's motion for a continuance and resetting trial for August 14, 2017. Each motion for continuance indicated that Courtney had waived his constitutional and statutory rights to a speedy trial for the applicable periods of time. Every post-arraignment motion was made by Courtney either jointly with the State or alone. Accordingly, none of the delay leading up to the August 2017 trial is weighed against the State.\\n3. Defendant's Assertion of Speedy-Trial Right\\n\\u00b632. Although the State bears the burden to bring a defendant to trial, the defendant \\\"has some responsibility to assert his right to a speedy trial.\\\" Wiley v. State , 582 So.2d 1008, 1012 (Miss. 1991) (citing Flores v. State , 574 So.2d 1314, 1323 (Miss. 1990) ). The ultimate responsibility, though, must rest with the government rather than the defendant. Barker , 407 U.S. at 531, 92 S.Ct. 2182. The Court has held that the factor weighs against a defendant who waits a significant amount of time after arrest to demand a speedy trial. Bateman v. State , 125 So.3d 616, 630 (\\u00b6 48) (Miss. 2013).\\n\\u00b633. Courtney was arrested July 8, 2015. The Court appointed counsel to represent him on February 8, 2016, and he requested a speedy trial less than a month later, on May 10, 2016, in his request for discovery. However, as noted by the trial court in the order denying Courtney's subsequent motion for dismissal on speedy-trial grounds, Courtney joined in a motion for a continuance less than two weeks after demanding a speedy trial. As detailed above, he joined in two additional motions for continuance and made two more motions for continuance after the total of three joint motions that led in unbroken succession to the trial itself. In other words, Courtney requested each one of the five continuances that delayed his trial following his arraignment. \\\"When a defendant moves for a speedy trial but simultaneously requests a continuance, the defendant's speedy-trial request cannot be viewed as a request to be tried promptly.\\\" Perry v. State , 233 So.3d 750, 758 (\\u00b6 17) (Miss. 2017) (citing Rowsey , 188 So.3d at 495 (\\u00b6 28) ). A demand for a speedy trial, to be effective, must be a request to go to trial. Rowsey , 188 So.3d at 495 (\\u00b6 28). When the putative speedy-trial demand is coupled with requests for continuances by the defense, it loses effect as a request to go to trial. Id. ; see also Franklin v. State , 136 So.3d 1021, 1035-1036 (\\u00b6 53) (Miss. 2014).\\n4. Prejudice\\n\\u00b634. To determine whether a defendant was prejudiced by the delay, the Court considers: \\\"(1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the possibility that the defense will be impaired.\\\" Bateman , 125 So.3d at 630 (\\u00b6 51) (internal quotation marks omitted) (quoting Brengettcy , 794 So.2d at 994 ). Of the three, the most serious is the final one, since a defendant's inability to adequately prepare his case \\\"skews the fairness of the entire system.\\\" Barker , 407 U.S. at 532, 92 S.Ct. 2182 ; see also State v. Magnusen , 646 So.2d 1275, 1284 (Miss. 1994).\\n\\u00b635. The entirety of Courtney's argument on appeal regarding prejudice addresses what occurred before his arrest and before the youth court transferred the matter to circuit court. Because, as set forth above, the clock on the State's obligation to provide him with a speedy trial did not begin to run until his arrest in July 2015, the youth court proceedings do not enter into the speedy-trial discussion. Courtney offers no argument on appeal that delay following his arrest prejudiced him. Accordingly, he wholly fails to demonstrate prejudice resulting from the delay. It is worth noting, however, that even if the clock began running, as the dissent contends, on May 2, 2014, when the youth court petition was filed, of the above-listed Barker factors, only one-the reason for the delay-could conceivably count against the State, and our holding that Courtney's speedy-trial rights were not violated would stand.\\nCONCLUSION\\n\\u00b636. Courtney waived the statute of limitations affirmative defense by failing to present it for the trial court's consideration. Turning to his claimed violation of the constitutional right to a speedy trial, other than the length of delay itself, none of the Barker factors weigh in Courtney's favor. The record reflects that Courtney caused and requested the continuances that delayed his arraignment and trial; he nullified his request for a speedy trial, such as it was, by requesting additional continuances after making it; and he offers no relevant argument on appeal that the delay prejudiced him. Discerning no merit in the arguments he presents, we affirm.\\n\\u00b637. AFFIRMED.\\nRANDOLPH, C.J., MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR. KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J.\"}" \ No newline at end of file diff --git a/miss/1322131.json b/miss/1322131.json new file mode 100644 index 0000000000000000000000000000000000000000..9206416df50807974ade6e5ef2ef839c39771c8e --- /dev/null +++ b/miss/1322131.json @@ -0,0 +1 @@ +"{\"id\": \"1322131\", \"name\": \"City of Biloxi v. Chinn, et al.\", \"name_abbreviation\": \"City of Biloxi v. Chinn\", \"decision_date\": \"1958-01-13\", \"docket_number\": \"No. 40629\", \"first_page\": \"461\", \"last_page\": \"462\", \"citations\": \"232 Miss. 461\", \"volume\": \"232\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T22:41:40.720575+00:00\", \"provenance\": \"CAP\", \"judges\": \"Roberds, P. J., and Lee, Holmes and Ethridge, JJ. concur.\", \"parties\": \"City of Biloxi v. Chinn, et al.\", \"head_matter\": \"City of Biloxi v. Chinn, et al.\\nNo. 40629\\nJanuary 13, 1958\\n99 So. 2d 601\\nThomas J. Wilts, J. D. Stennis, Jr., Biloxi, for appellants.\\nNo appearance for appellees.\", \"word_count\": \"117\", \"char_count\": \"631\", \"text\": \"Hall, J.\\nThis is a companion suit of City of Biloxi v. J. A. Creel, et al, No. 40605%, decided by this Court on December 9, 1957, and is governed by the principles laid down in Friedhof v. City of Biloxi, 97 So. 2d 742, and for the reasons stated in No. 40,605% the judgment of the lower court is reversed and the cause is remanded to the Chancery Court of Harrison County, Mississippi.\\nBeversed and remanded.\\nRoberds, P. J., and Lee, Holmes and Ethridge, JJ. concur.\"}" \ No newline at end of file diff --git a/miss/1449389.json b/miss/1449389.json new file mode 100644 index 0000000000000000000000000000000000000000..6138515ba5d410a1cc695ab3f1c6f7fb57d2b8b0 --- /dev/null +++ b/miss/1449389.json @@ -0,0 +1 @@ +"{\"id\": \"1449389\", \"name\": \"Pederee v. State\", \"name_abbreviation\": \"Pederee v. State\", \"decision_date\": \"1914-10\", \"docket_number\": \"\", \"first_page\": \"653\", \"last_page\": \"656\", \"citations\": \"108 Miss. 653\", \"volume\": \"108\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T23:39:03.682814+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Pederee v. State.\", \"head_matter\": \"Pederee v. State.\\n[67 South. 152.]\\nCriminal Law. Evidence. Other offenses.\\nWhere a defendant is on trial for selling and retailing intoxicating liquors, the state can introduce evidence of several sales before the finding of the indictment, it not being confined to one particular sale.\\nAppeal from the circuit court of Forest county.\\nHon. P. B. Johnson, Judge.\\nEosa Pederee was convicted of the unlawful sale of intoxicating liquor and appeals.\\nThe indictment upon which appellant was tried alleged that she \\u201cdid unlawfully sell and retail intoxicating liquors.\\u201d Evidence of several sales alleged to have been made prior to the date laid in the indictment was introduced. It is contended by appellant that the state should have been confined to one particular instance.\\nCurrie & Currie, for appellant.\\nIn presenting our argument we call especial attention to the fact that the defendant was on trial for the \\u201cunlawful keeping of intoxicating liquors for the purpose and intention of selling same,\\u201d and not for the unlawful sale of intoxicating liquors.\\nThe slate in this case was confined in its proof to the one act, that is, the keeping of the particular liquors by the defendant, with the intention and purpose of selling same. The court did not confine the state to this issue in its ,proof, but permitted' it to open up the entire life of defendant, and to prove every act and deed of defendant, not only the prior charges or convictions of whatever kind or character but her business,. her character of work:, the house and its reputation in which she lived, to all of which defendant objected.\\nAs shown by the recprd, the state proved that the defendant\\u2019s house had been raided at other times, and that liquors were found, and in this proof, the state was not confined to any definite period of time, neither prior or subsequent to the time fixed in the affidavit. This was clearly error. As we have stated, the state was confined under the law to the single act charged in the affidavit. In the case of Page v. State, 62 So. 3601, the defendant was charged with acting as agent in the unlawful sale of intoxicating liquor. The court \\u25a0 permitted the state, after offering proof of the particular crime charged in the indictment, to then make proof of several \\u25a0other charges; that is to say, permitted the state to produce several other witnesses who testified that defendant had acted as agent for them in procuring intoxicating liquors. In that case the court said: \\u201cThe learned trial judge, no doubt permitted this evidence to go to the jury upon the theory that section 1762 of the Code of 1906, is applicable to this sort of case. In this we think he erred. This section is applicable only in cases where there is an unlawful sale of intoxicating liquors.\\u201d This case was reversed. We have precisely the same question here. The defendant was tried for the unlawful keeping of intoxicating liquors for. sale. The state was not.confined to this issue, but the court under section 1762, Code 1906, permitted the state to prove other raids on the defendant\\u2019s house, 'and other findings of liquors. The court erred in this. The section applies only where the charge is for selling, and if defendant had been on trial for a.sale, then the statute would have been applicable, but as held in the case cited, it applies only to cases where a sale is charged. There is no doubt that defendant Is case was seriously prejudiced in the minds of the jury by this evidence.\\nFrank Johnson, Assistant Attorney-General, for the state.\\nThe appellant in this case was indicted in the second district of Forest county in the circuit court for unlawful retailing. The case of the state was clearly made out and established by the testimony of John Kelly, Morris Kiley and Ed. Houston. The testimony for the state was .positive and direct. There was testimony by Steve Brown, Becky Malone and Ed. Britton that the defendant did not sell the liquor.\\nThe defendant then testified in her own behalf in denial of the charge. There was only one instruction granted for the state, which is as follows: ' \\u201c The court instructs the jury for the state that if you believe from the testimony, beyond a reasonable doubt, the defendant sold intoxicating liquors as charged in the indictment, then it is the sworn duty of the jury to find the defendant guilty.\\u201d\\nThere were no instructions asked for the defendant. Upon this testimony, and this instruction, the jury found the defendant guilty as charged in the indictment, and a fine and imprisonment were imposed on the defendant. From that judgment the present appeal is prosecuted. There is no question of law involved in the case. I - respectfully submit that the judgment should be affirmed.\", \"word_count\": \"912\", \"char_count\": \"5365\", \"text\": \"Cook, J.,\\ndelivered the opinion of the court.\\nThe brief for appellant in this case assumes that appellant was charged with \\\"keeping for sale intoxicating liquors.\\\" and upon this erroneous assumption is built the entire argument for reversal.\\nIf appellant had been charged with the misdemeanor which she evidently thinks she was, her argument might have some weight, but even this is doubtful. Unfortunately she is charged with more than keeping booze for sale. She is charged with selling it, and, unless she was grievously misrepresented, she was rightfully convicted in the manner and in the form prescribed by the law of the land.\\nAffirmed\"}" \ No newline at end of file diff --git a/miss/1652383.json b/miss/1652383.json new file mode 100644 index 0000000000000000000000000000000000000000..c79258030ad1fc2cad63b7fca48a27bb36723d4e --- /dev/null +++ b/miss/1652383.json @@ -0,0 +1 @@ +"{\"id\": \"1652383\", \"name\": \"Goss & Hammond v. N. B. Whitehead\", \"name_abbreviation\": \"Goss v. Whitehead\", \"decision_date\": \"1857-04\", \"docket_number\": \"\", \"first_page\": \"213\", \"last_page\": \"215\", \"citations\": \"33 Miss. 213\", \"volume\": \"33\", \"reporter\": \"Mississippi Reports\", \"court\": \"High Court of Errors and Appeals of Mississippi\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T22:10:04.631793+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Goss & Hammond v. N. B. Whitehead.\", \"head_matter\": \"Goss & Hammond v. N. B. Whitehead.\\nPleading : promissory note signed in blank: now avoided as to excess op amount improperly insbrted. \\u2014 The maker of a promissory note, who signed the same in blank, but restricting his agent, to whom it was delivered, as to the amount to be inserted in it, may prove under the general issue, a violation of his instructions by the agent, and notice of that fact in the holder, in avoidance of the excess so inserted. In such a case the note being valid as to the amount authorized to be inserted and only void as to the excess, its execution could not be denied under oath.\\nIn error from the Circuit Court of Attala county. Hon. E. G. Henry, judge.\\nThis was an action of assumpsit, instituted in the Circuit Court of Attala county, by the defendant in error against the plaintiff in error, to recover the amount of two promissory notes, signed by the plaintiff in error, and payable to the defendant in error; one for the sum of $1140, bearing eight per cent, interest per annum from its date, and the other for $300, both dated on the same day, and having the same length of time to run to maturity.\\nThe defendant below pleaded the general issue, and upon that issue a trial was had.\\nOn the trial the plaintiff read in evidence the notes, and the defendant, Hammond, then offered to prove by a witness, \\u201c that the notes sued on Avere signed by John W. Goss, as principal, and by defendant, Hammond, as surety, in blank; that their names AA'ere signed on blank pieces of paper, and that Hammond instructed Goss (to whom the notes were delivered), not to fill them up Avith an amount exceeding one thousand dollars in all. And that John W. Goss went with the blank notes so signed to the plaintiff, and purchased from him sundry articles and hired negroes; and before purchasing or hiring, that Goss informed plaintiff that Hammond had limited him in filling up the notes to the sum of one thousand dollars; when plaintiff replied that he Avas willing to sell to Goss in his own name, and that it would be all right even if the amount exceeded\\u2019the sum authorized by Hammond to be inserted; and there upon, the purchase was made, and the notes filled up as they now appear.\\u201d\\nTo the introduction of this evidence, the plaintiff objected, upon the ground that it was inadmissible under the pleadings, the execution of the note not being denied under oath.\\nThe court sustained the objection, and the defendant, Hammond, excepted. The plaintiff had verdict and judgment for the full amount of the two notes and interest, and the defendant sued out this writ of error.\\nCampbell and Washington, for plaintiffs in error,\\nContended, that the defendant, Hammond, by the evidence, which he offered to introduce, did not propose to deny the execution of the notes sued on. The notes were at all events good, and valued at the amount of $1000, the sum authorized by Hammond to be inserted in them; and he only proposed to show that notwithstanding their execution by him, they Avere not binding on him, for the excess over this sum improperly inserted in them. That this case is neither Avithin the letter or spirit of the Act of 1824, which requires a denial of the execution of a note to be made under oath, the letter only applying to the execution of notes, &c., and the spirit and policy of the act being only to dispense Avith the formal proof of the signatures, AA\\u2019here they are not thus denied. See 1 S. & M. 17 ; 2 lb. 187; 12 lb. 586., They insisted that the opinion in the case of Hemphill v. The Banh of Alabama, 6 S. & M. 44, relied on by the opposing counsel, so far as it relates to the question in this case, was obiter dictum, and not authority.\\nJason Niles, for defendant in error,\\nContended, that the court Avas right, in excluding the testimony offered by Hammond, is plain, from the consideration, that the proof offered tended to show that the note sued on was not his, and that he never\\\" executed it. As the plea filed in the cause was not verified, no such proof was admissible.- Q-reen v. Robinson, 3 How. Miss. 120-1; Hemphill v. The Banh of Alabama, 6 S. & M. 44; Thigpen v. The Mississippi Central Railroad Company, decided at the last term of this court. This court, it is believed, will affirm the judgment of the court beloAv, Avith damages.\", \"word_count\": \"1032\", \"char_count\": \"5782\", \"text\": \"Fisher, J.,\\ndelivered the opinion of the court.\\nThe plaintiff below brought this suit in the Circuit Court of Attala county, to recover the amount of two promissory notes, alleged to have been executed by the defendants. The general issue being pleaded, the defendants proposed to prove, on the trial,' that the notes were signed in blank, and delivered to an agent, with instructions not to fill the blanks with a sum exceeding one thousand dollars. And that the plaintiff was fully informed by the agent, as to this limitation upon the authority to fill the blanks, before he received the notes, or the blanks were actually filled up; but the court rejected the evidence, on the ground that the execution of the notes was not denied under oath.\\nWe are of opinion that the court below erred in rejecting the evidence. The defendants admitted the execution of the notes to the extent of the agent's authority, and they could not, therefore, deny their execution. Indeed, the entire amount might have been recovered, if the notes had been transferred to an innocent holder without notice of the restriction upon the agent to fill the blanks. The agent's act, however, under any view, would be good and binding, to the extent of his authority, and it would only be void as to the excess. .Under this view of the law, it would be almost impossible for a party to verify a plea by oath, denying the execution of the entire notes.\\nJudgment reversed, venire de novo awarded, and cause remanded.\"}" \ No newline at end of file diff --git a/miss/1665787.json b/miss/1665787.json new file mode 100644 index 0000000000000000000000000000000000000000..ec80585132e0d1954225cdcd9420cb544678832f --- /dev/null +++ b/miss/1665787.json @@ -0,0 +1 @@ +"{\"id\": \"1665787\", \"name\": \"A. M. Gill et al. v. H. J. Shirley, Administratrix\", \"name_abbreviation\": \"Gill v. Shirley\", \"decision_date\": \"1878-04\", \"docket_number\": \"\", \"first_page\": \"814\", \"last_page\": \"818\", \"citations\": \"55 Miss. 814\", \"volume\": \"55\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T22:15:15.279282+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"A. M. Gill et al. v. H. J. Shirley, Administratrix.\", \"head_matter\": \"A. M. Gill et al. v. H. J. Shirley, Administratrix.\\nChancery Court. Probate jurisdiction. Trial of conflicting titles.\\nThe -Chancery Court, on an application by an administrator to sell land of his-intestate, has no authority to adjudicate upon a claim of title thereto, set up by the heirs as derived from an independent source, paramount to that of the-decedent, and should sustain the administrator\\u2019s exceptions to the answer of the heirs setting up such defense.\\nAppeal from the Chancery Court of Hinds County.\\nHon. E. G. Peyton, Chancellor.\\nMrs. H. J. Shirley, administratrix of William W. Dunton,. deceased, filed this- petition in the Hinds Chancery Court, in-the matter of the estate of William W. Dunton, alleging that the personal and real estate were insufficient to pay the debts ;: setting out the claims against the estate and the property, real and personal,- of which William W. Duntoii died the owner;: and praying that the estate be declared insolvent and a decree-made for the sale of all the property.\\nThe petition further represented that said H. J. Shirley and \\u2022 the three children of James H. Dunton, deceased,* Lydia Garner Dunton, Harriet Whitney Dunton, and James Henry Dunton, each of whom was a minor, were the only surviving-heirs at law of said William W. Dunton, deceased, the said H. J. Shirley being a sister, and said James H. Dunton, deceased,. having been a brother, of William W. Dunton, deceased, and asked that the three minors, with their mother and guardian, Mrs. A. M. Gill, n\\u00e9e Dunton, be made defendants and required to answer and show cause, if any they could, why the estate should not be declared insolvent and the lands sold as prayed.\\nMrs. Gill and the minors, by her as guardian, answered that the lands never were the property of William W. Dunton, but were conveyed by third parties directly to James H. Dunton, under whom the respondents claimed to be owners, and made-the conveyances to James H. Dunton exhibits to their answer,, claiming that, as William W. Dunton was never owner of the-lands, the court had not jurisdiction to sell them, o'n petition of his administratrix, as part of his estate.\\nThe administratrix filed exceptions to so much and such portions .of the answer as sought to contest the title of the-decedent, William W. Dunton, to the lands sought by the petition to be sold, because (1) the Chancery Court has not-jurisdiction, in the exercise of its probate powers, to adjudicate upon conflicting titles to said lands ; (2) the petition does not seek to divest or affect any right, title, or claim of any of the respondents to the lands, except such right, title, or claim as may have vested in them as heirs at law of William W. Dunton; (3) any sale of the lands which may be decreed under the petition by the Chancery Court cannot deprive the respondents of any right, title, or claim which they have to any of the lands, except such as may have vested in them as heirs at law of William W. Dunton; (4) as the respondents are made defendants to the petition only as heirs at law of William W. Dunton, they are estopped to resist a sale of such interest or title as said William W. Dunton was seized and possessed of at the time of his death in said lands, if said sale shall be necessary for the payment of debts due by said deceased.\\nThe exceptions, which covered, practically, the whole answer, were sustained, and there was novfurther defense; but from a final decree for the sale of the lands the respondents appealed.\\nJ. A. Brown, for the appellants.\\nThe only question in this c\\u00e1se is whether the fact that the intestate never had any pretense of title to the lands was a defense which could be set up by the real owners of the land, whom the administratrix had made defendants to her petition to sell it. This goes to the jurisdiction of the court. It is not a trial of titles, but an issue as to a jurisdictional fact. The allegation in such petitions of the decedent\\u2019s ownership of the laud may be denied and disproved, just as the fact of his death may be disproved. The statement is, not that James H. Duntoii had a better title than the intestate, but that the latter never had any title at all.\\nThat the sale will do no harm to the appellants is not true. They are made parties defendant to the petition, wherein it is alleged that these lands belonged to the decedent, and they are bound by the final decree. No court has the'right to put a cloud on their title, and the decree and sale would have that effect at least. Moreover, the purchaser will be put in possession, and hold the land under color of title. And the appellants, being parties to the proceeding, will be bound by the adjudication of the jurisdictional fact that the decedent held the title to the land.\\nIt has been repeatedly decided that the Probate Court cannot adjudicate title to land. The effect of that rule is that the Probate Court has no jurisdiction of the petition to sell. Phillips v. McLaughlin, 26 Miss. 598 ; Glements v. Hawkins, 8 Smed. & M. 339; McRea v. Walker, 4 How. (Miss.) 457.\\nT. J. & F. A. R. Wharton, for the appellee.\\nAs the record shows there was no other evidence offered before the chancellor besides that contained in the record in this court, we submit that, in the absence of such other evidence, this court must presume that the decree appealed from was warranted by all the evidence which was submitted to the chancellor.\\nThe decree appealed from did not, and could not, prejudice the rights of J. H. Dunton\\u2019s heirs, as it directed that a sale should be made only of such right and title as W. W. Dunton had in the lands in controversy. If he had no title to such lands, this could only prejudice the rights of the purchasers at said sale, as they could acquire only such title as W. W. Dun-ton owned in the lands. Such sale could not operate to create a cloud upon the title of J. H. Dunton\\u2019s heirs, as it could only transfer to another such right as W. W. Dunton owned, thus only substituting another person, or persons, in the room and stead of W. W. Dunton.\\nThe Chancery Court has no jurisdiction to adjudicate upon conflicting title to lands where the parties claim to be the owners of the legal title, and liave an adequate remedy in a court of common-law jurisdiction. For this reason, and because only a legal title was relied upon as having vested in J. H. Dunton\\u2019s heirs, we submit that the decree was correct.\", \"word_count\": \"1395\", \"char_count\": \"7809\", \"text\": \"Campbell, J.,\\ndelivered the opinion of the court.\\nHeirs who are cited to answer a petition of the administrator to sell land of the intestate to pay debts may set up, as a bar to such application, any valid objection to a sale of their estate derived by descent from the decedent, which is all that can be affected by a deci'ee of sale on such application ; but it is not allowable for such heirs to oppose to such petition for a sale a title in themselves derived from another source than the intestate. Any claim of heirs not derived from the intestate is not involved in an application by his administrator to sell his land, and is not cognizable by the Chancery Court in such proceeding. A decree of sale in such case would not estop the heirs from asserting against a purchaser under such decree a title independent of that descended from the intestate, because all that the court can do by such decree is to divest the title devolved on the heirs by descent from the intestate, whose lands it is decreed shall be sold. Heirs have no interest to oppose a decree to sell as land of their ancestor what was not his.\\nThe policy of the law is speedy settlement of the estates of decedents, and it is not admissible to embarrass their administration by contests about titles not involved in the administration, and the exclusion of which contests will in no way harm, the heirs.\\nDecree affirmed.\"}" \ No newline at end of file diff --git a/miss/1679006.json b/miss/1679006.json new file mode 100644 index 0000000000000000000000000000000000000000..0566d46a5db50486b8aa708b62212e2c07f04891 --- /dev/null +++ b/miss/1679006.json @@ -0,0 +1 @@ +"{\"id\": \"1679006\", \"name\": \"J. B. Colt Co. v. Fuller\", \"name_abbreviation\": \"J. B. Colt Co. v. Fuller\", \"decision_date\": \"1926-11-22\", \"docket_number\": \"No. 25869\", \"first_page\": \"490\", \"last_page\": \"493\", \"citations\": \"144 Miss. 490\", \"volume\": \"144\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T18:59:42.292806+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"J. B. Colt Co. v. Fuller.\", \"head_matter\": \"J. B. Colt Co. v. Fuller.\\n(Division B.\\nNov. 22, 1926.)\\n[110 So. 427.\\nNo. 25869.]\\nWelch <& Cooper and Boy B. Noble, for appellant.\\nCorpus Juris-C'yc. References: Sales, 35 Cyc, p. 151, n. 43; p. 441, n. 84.\", \"word_count\": \"836\", \"char_count\": \"4702\", \"text\": \"EColden, P. J.,\\ndelivered the opinion of the court.\\nThe appellant, J. B. Colt Company, sued the appellee, W. A. Fuller, to recover on a promissory note for two hundred thirty dollars given by Fuller to the Colt Company for the purchase price of a carbide lighting plant which was duly installed upon Fuller's premises, under a contract of warranty as to the material, and that the plant would operate automatically. Appellee, Fuller, contended that the warranty was breached, and that the plant was worthless to him, and, upon this theory, tho jury rendered a verdict in his favor, from which this appeal was prosecuted.\\nA number of cases similar to the one before us have reached this court in the recent past, and the principles of law governing' the parties to these contracts are very well established by this court in a number of decisions. See J. B. Colt Co. v. Mazingo, 141 Miss. 402, 106 So. 533, as we think the rules announced in that case govern the instant case.\\nThe note sued on was executed by Fuller after the carbide lighting plant had been installed for him, which was about the 1st of November, 19201, and was due one year after date. When the note became due, and the appellant attempted to collect it, the appellee, Fuller, for the first time, then notified the appellant that he had rejected the plant, and refused to pay for it, as it was . worthless, would not operate automatically, and that the warranty in the contract, in that regard, was breached; and Fuller refused to pay the note. Whereupon, this suit followed.\\nThe testimony in the case shows that Fuller operated the plant for about three months after it was installed, and that, when it failed to operate, he continued to keep it for nine months longer, and when the note became due, which was after Fuller had been in possession and use - of the plant for more than one year, he then attempted to rescind the contract and. reject the plant. It will thus be seen that Fuller, the purchaser, kept and used the plant for more than a year before offering to return it on account of any defect or breach of warranty as to its material or automatic operation.\\nWe do not think the contract could be rescinded by Fuller after appropriating and holding the plant for more than.one year after its purchase without notifying the appellant of any defect that he had discovered which amounted to a breach of warranty in the contract, nor offering to return the property to the seller. This would be an unreasonable length of time to hold the property before giving notice of its rejection.\\nTherefore appellee cannot rescind the contract in this case, but must pay whatever amount may be due to appellant for the plant under the rule laid down in the case of Colt Co. v. Mazingo, 141 Miss. 402, 106 So. 533, supra, wherein it is held:\\n\\\"Where goods are sold with a warranty of their character or quality, the purchaser, after accepting the goods, on discovering that they are not of the character or quality warranted, may rescind the contract by returning or offering to return the goods to the seller, or he may keep the goods, and, when sued for the price thereof,, may set off against such price the difference between it and the actual value of the goods delivered. The offer to return the goods in order to constitute a rescission of the contract must be made within a reasonable time after the discovery by the purchaser of the defects therein, and, if such offer is declined by the seller, the goods must not thereafter be appropriated by the purchaser to his own use.\\\"\\nTherefore the lower court erred in failing to instruct the jury to find for the plaintiff in such amount as would be the difference between the purchase price of the plant and the actual value of the property delivered; that is to say, that the purchaser could not rescind the contract because he failed to give notice of such rescission within a reasonable time, but he must keep- the plant and he may set off against the purchase price the difference between it and the actual value of the plant, as afterwards shown with the defects developed. The above Colt v. Mazingo Case should have been followed as to the amount of recovery, because, under the proof, the plaintiff was entitled to recover some amount in the lower court.\\nTherefore the judgment of the lower court will be reversed, and the case' remanded for a new trial on the' question only of the amount due appellant under the contract and the facts in the case.\\nReversed and remanded.\"}" \ No newline at end of file diff --git a/miss/1681444.json b/miss/1681444.json new file mode 100644 index 0000000000000000000000000000000000000000..0c51a8f8719d80e8198a7cabeacad19c8d9d8668 --- /dev/null +++ b/miss/1681444.json @@ -0,0 +1 @@ +"{\"id\": \"1681444\", \"name\": \"Bradford et al. v. Creekmore, et al.\", \"name_abbreviation\": \"Bradford v. Creekmore\", \"decision_date\": \"1926-03-22\", \"docket_number\": \"No. 25369\", \"first_page\": \"565\", \"last_page\": \"574\", \"citations\": \"142 Miss. 565\", \"volume\": \"142\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T18:54:53.278445+00:00\", \"provenance\": \"CAP\", \"judges\": \"MoGtowen, J., took no part in the decision of this case.\", \"parties\": \"Bradford et al. v. Creekmore, et al.\", \"head_matter\": \"Bradford et al. v. Creekmore, et al.\\n(In Banc.\\nMarch 22, 1926.)\\n[107 So. 524.\\nNo. 25369.]\\nMcLean & McLean and N. W. Bradford, for appellants.\\nW. J. E'vans and A. M. Carothers, for appellees.\\nArgued orally by Wm. G. McLean, for appellants, and W. J. Evans, for appellees.\\nCorpus Juris-Cyc. References: Injunctions, 32 C. X, p. 304, n. 31 New.\", \"word_count\": \"1034\", \"char_count\": \"6210\", \"text\": \"Etheridge, J.,\\ndelivered the opinion of the court.\\n.Luring the latter part of the year 1920, certain petitioners filed a petition for the creation of a drainage district, under chapter 197 of the Laws of 1912. Commissioners were appointed to make a preliminary examination of the matter, and the commissioners employed an engineer to make a survey, under the provisions of this chapter. On the hearing, a. drainage district was not created, but the scheme was abandoned^ Thereafter the drainage commissioners certified an expense account under the act to the county drainage board, and thereafter the county drainage board certified the expenses to the board of supervisors, requesting that an acreage tax be levied on the lands embraced in the proposed district ; and the board of supervisors levied an acreage tax of one dollar and thirteen cents per acre.\\nThe bill in this- case was filed to prevent the sheriff from selling the lands of the complainants under the said acreage tax order. The bill alleged that, when the certificate of indebtedness, incurred in the preliminary service, etc., was presented to the county board of drainage commissioners and approved by them, a certiorari was taken by certain of the property owners to the circuit court from the order approving such certificate of indebtedness, and the suit had never been disposed of in the circuit court, but was still pending at the time of the filing of the injunction. That allegation in the bill was denied by the answer filed by the appellants. The bill further alleged that, when the acreage tax was levied upon the lands of the persons owtaing the lands in the district, an appeal was taken to the circuit court, and that the judgment in the circuit court was that the judgment of the board in levying the said tax was reversed and said order annulled, so far as it affected the lands of those appealing in that cause, but no other. The answer while admitting \\\"this allegation, asserted that an appeal was taken from the judgment of the circuit court and was undisposed of. The original bill was filed against the sheriff and a part of the holders of certificates of indebtedness, and an injunction was prayed for against the sheriff alone. A preliminary injunction was issued against the sheriff alone prohibiting his making the sale under the acreage tax.\\nThe holders of certificates of indebtedness who were made defendants to the suit filed an answer contesting; the rightfulness of the issuance of the injunction, and seekinjg to 'make itheir answer a, (cross-bill, in [which cross-bill they sought to recover damages for the wrongful suing out of the injunction, and for judgment a gainst the injunction bond for the amount of their indebtedness. The sheriff did not answer. The complainants filed a motion to be permitted to dismiss their bill as against the appellants and proceed against the sheriff alone, which motion was sustained by the court. The appellants sought then to be permitted to file an answer in the name of the sheriff, contesting the injunction, which was refused by the court, and the bill was dismissed against the appellants here without prejudice to their rights,, and the court below) then permitted the complainants in the injunction suit to take a. decree pro confesso against the sheriff and a final decree thereon making the injunction perpetual, from which order the appellants have appealed, and insist under the appeal that they were necessary parties defendant to the suit, and that they should have been permitted to litigate the issues in the name of the sheriff although they may not have been necessary parties.\\nThe appellee justifies the decree below on the theory that the judgment of the court below was correct, because the appellants were not necessary parties and their rights are not precluded; and also upon the theory that an acreage tax is unconstitutional, being in conflict with section 112 of the state Constitution, and also in conflict with the Fourteenth Amendment of the Constitution of the United States, in that the tax imposed taxes on the property of the complainants without due process of law. Appellee also contends that the appeal from the order of the board of supervisors assessing the acreage tax was an adjudication that the said tax was unlawful, and, being reversed as against some of the parties, could not be enforced against the others without a reassessment. Appellee also attacks the drainage act as being unconstitutional, in that it undertakes to confer appellate jurisdiction upon the chancery court. Without deciding whether the appellants were necessary parties in the court below, We think the court should have permitted them to litigate the issues in the name of the sheriff on giving bond to protect the sheriff from expenses and other liabilities.\\nWe do not undertake, in this opinion, to pass upon the constitutional questions here involved, because, in our view, these matters should be heard by parties litigant whose rights may be affected by the judgment rendered on the final disposition of the cause.\\nThe questions presented for decision are not so clear and free from difficulty that the court would feel warranted in proceeding to the decision of them without the benefit of argument of counsel of the parties whose interest may be affected, and without the decision of the court below upon such questions. We reserve all the questions for further consideration on the final disposition, should an appeal be made therefrom, except that the complainants should have been permitted to defend the suit in the court below. The injunction will be retained until the final hearing' in the court below, and the judgment will be reversed and the cause remanded for further proceedings in accordance with this opinion.\\nMoGtowen, J., took no part in the decision of this case.\\nReversed and remanded.\"}" \ No newline at end of file diff --git a/miss/1684474.json b/miss/1684474.json new file mode 100644 index 0000000000000000000000000000000000000000..ddbb4535d235ac9c6f62ff4ae40f83959fda3869 --- /dev/null +++ b/miss/1684474.json @@ -0,0 +1 @@ +"{\"id\": \"1684474\", \"name\": \"Staple Cotton Co-op. Ass'n v. Buckley\", \"name_abbreviation\": \"Staple Cotton Co-op. Ass'n v. Buckley\", \"decision_date\": \"1926-01-18\", \"docket_number\": \"No. 25215\", \"first_page\": \"483\", \"last_page\": \"487\", \"citations\": \"141 Miss. 483\", \"volume\": \"141\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T02:13:43.426369+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Staple Cotton Co-op. Ass\\u2019n v. Buckley.\", \"head_matter\": \"Staple Cotton Co-op. Ass\\u2019n v. Buckley.\\n(Division A.\\nJan. 18, 1926.)\\n[106 So. 747.\\nNo. 25215.]\\nR. G. McBee, for appellant.\\nShands, Elmore \\u00e9 Causey, for appellee.\\nB. C. McBee, in reply, for appellant.\\nArgued orally by B. G. McBee, for appellant, and A. W. Shamds, for appellee.\\nCor|pus Juris-Cyc. References; Injunctions, 32 C. J., p. 476, n. 9.\", \"word_count\": \"398\", \"char_count\": \"2320\", \"text\": \"Smith, C. J.,\\ndelivered the opinion of the court.\\nThe appellant exhibited an original bill in the court below against the appellee, by which it sought to.recoyer for an alleged breach by the appellee of a co-operative marketing contract made by him with the appellant, and to obtain the specific performance by the appellee of this contract. As an incident to this relief, and in furtherance thereof, the appellant prayed for and obtained a temporary injunction restraining the appellee from further violating his contract. This injunction- remained in force, and no attempt to obtain its dissolution was made until the case came on and was set down for final hearing on bill, answer, and motion to dissolve the injunction, and for damages for its wrongful issuance. \\\"When the case was called for trial, the bill was dismissed on motion of the appellant, and the court awarded the appellee an attorney's fee as damages for the wrongful suing out of the injunction.\\nIt does not appear from this record that any services were rendered by the appellee's attorneys in obtaining' the dissolution of the injunction other than such as were rendered in defending the case on its merits. Consequently the issuance of the injunction did not cause the appellee to incur any liability for attorney's fees in excess of .that which he necessarily incurred in defending the case on its merits, and the case is therefore ruled by Mims v. Swindle, 124 Miss. 686, 87 So. 151; Howell v. McLeod, 127 Miss. 1, 89 So. 774, Giglio v. Saia (Miss.), 106 So. 513, and Hunter v. Hankinson (Miss.), 106 So. 514, decided January 4, 1926, but not yet [officially] reported. The attorney's fee should not be allowed.\\nThe decree of the court below, in so far as it awards the appellee an attorney's fee as damages for the suing out of the injunction, will he reversed, and the appellee's motion therefor will he dismissed, hut in all other respects the decree will remain in full force and effect.\\nReversed.\"}" \ No newline at end of file diff --git a/miss/1684510.json b/miss/1684510.json new file mode 100644 index 0000000000000000000000000000000000000000..7b02b34e7e2c889bd6570ebb8e0f2badd19c1167 --- /dev/null +++ b/miss/1684510.json @@ -0,0 +1 @@ +"{\"id\": \"1684510\", \"name\": \"Craft v. Homochitto Lumber Co.\", \"name_abbreviation\": \"Craft v. Homochitto Lumber Co.\", \"decision_date\": \"1925-12-14\", \"docket_number\": \"No. 25287\", \"first_page\": \"156\", \"last_page\": \"163\", \"citations\": \"141 Miss. 156\", \"volume\": \"141\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T02:13:43.426369+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Craft v. Homochitto Lumber Co.\", \"head_matter\": \"Craft v. Homochitto Lumber Co.\\n[106 So. 440.\\nNo. 25287.]\\n(Division B.\\nDec. 14, 1925.\\nSuggestion of Error Overruled Jan. 11, 1926.)\\nRawls & Hathorn and Price & Price, for appellant.\\nLuther A. Whittington, for appellee.\\nHeadnote. Injunction, 32 C. J., Section 37.\", \"word_count\": \"1186\", \"char_count\": \"6908\", \"text\": \"Anderson, J.,\\ndelivered the opinion of the court.\\nAppellee, Homoohitto Lumber Company, a corporation, filed its bill in the chancery court of Franklin county against appellant, Sidney Craft, administrator, to enjoin the latter from prosecuting an action at law brought by him in the circuit court of Lincoln county against appellee. The cause was heard on bill, answer, motion to dissolve temporary injunction theretofore issued, and proofs, and a decree was rendered overruling* appellant's motion to dissolve the injunction from which appellant was granted this appeal to settle the principles of the cause.\\nThe controlling facts are as follows: Will Craft, appellant's intestate, a negro employee of appellee, died from an injury received by him while engaged in the performance of his duties as such servant.- He had no children, nor descendants of children. Martha Craft claimed to be his wife and sole surviving heir. Appellee, believing that she was, after negotiations between the two, paid her the sum of one thousand one hundred dollars in full settlement and discharge of any claim for damages that she might have against appellee on account of the death of-said Will Craft. Appellee took from Martha Craft an acquittance in writing discharging it from all liability, if any existed, for the death of the said Will Craft.\\nAfter that compromise and settlement took place between Martha Craft and appellee, appellant was appointed by the chancery court of Franklin county administrator of the estate of the said Will Craft and duly qualified as such, as provided by law. Appellant thereupon in his capacity of administrator of the estate of Will Craft brought the action at law in the circuit court of Lincoln county, which was enjoined in this case. That action was brought for the recovery of damages for the alleged wrongful death, at the hands of appellee, of said Will Craft. Thereafter, Martha Craft instituted a proceeding in the chancery court of Franklin county under sections 2790 to 2792, inclusive, Code of 1906 (sections 310 to 312., inclusive, Hemingway's Code), to have herself declared to be the widow and sole heir at law of 'the said Will Craft. The action at law by appellant against appellee in the circuit court of Lincoln county was based on the theory that, in truth and in fact, Martha Craft was not the widow and sole heir of Will Craft, and that therefore the compromise and settlement made by her with appellee for the damages she claimed to. have suffered as such widow and sole heir on account of the alleged negligence of appellee, resulting in the death of said Will Craft, had no binding force, and therefore appellant as administrator of his estate was. entitled to recover from appellee for such alleged wrongful death.\\nAppellee sought to enjoin that action at law until the chancery court of Franklin county should determine in said proceeding therein, instituted by Martha Craft, who the true heirs at law of Will Craft were. It will be observed, therefore, that the injunction in this case was to restrain an action at law against appellee until the final determination of still a third cause pending in the chancery court of Franklin county, in which was involved the question of the true heirs of Will Craft, to which latter cause appellee was not a party.\\nAppellant's position is that appellee had complete and adequate remedy at law in the law action sought to be restrained, and therefore had no right to resort to the injunctive relief of a court of equity to restrain such action at law.\\nAny decree which might be rendered in the proceeding of Martha Craft, under the statute above referred to, to have herself declared the widow and sole heir of Will Craft, would not be conclusive except as to the parties thereto until after the expiration of two years from its rendition. The statute provides that the heirs at law and next of kin only of the deceased shall he made parties to the proceeding, and the decree rendered shall he binding on them from its date, but not on others until after the expiration of two years from its rendition. As to the weight the decree shall have as evidence, the statute provides:\\n\\\"And said decree shall be evidenced in all the courts of law and equity in this state that the persons therein named are the sole heirs at law of the person therein described as their ancestor.\\n\\\"A decree so rendered shall not be assailed collaterally, except for fraud, and shall be binding and conclusive upon all persons cited to appear from the date of its rendition, and upon all persons whomsoever from and after the expiration of two years from the date on which the same was rendered, saving to minors and persons of unsound mind, the right to reopen said cause within one year after attaining majority or being restored to sanity.\\\" Sections 2791, 2792, Code of 1906; sections 311, 312, Hemingway's Code.\\nIt is manifest from the language and purpose of the statute that if in the proceeding for that purpose Martha Craft should be declared widow and sole heir of Wil! Craft, the decree so adjudging would not be conclusive for appellee nor against appellant in his capacity as administrator until after the expiration of two- years from its rendition. Dhring that period it would-be conclusive as to next of kin made parties, but only prima-facie evidence of the truth of its recitals as to all other persons. Therefore, in the action at law between appellant and appellee either could assail the decree. In other words, the question as to whether Martha Craft was the widow and sole heir at law of Will Craft would still be an open question in that action.\\nThe injunction in the present case cannot have the effect of advancing the determination of the contentions of the parties in the action at law. On the contrary, it might delay their determination. If Martha Craft was in fact the widow and sole heir of \\\"Will Craft, appellee would be permitted to show that fact in the action at law notwithstanding a decree of the court in another proceeding holding to the contrary. And if the converse was the fact, appellant would be permitted to prove it in the face of a decree in the other proceeding holding to the contrary. Appellee, therefore, has a complete remedy at law in the action at law pending against it in Lincoln county. There is no use citing authorities to sustain the proposition that a court of equity will not enjoin an action at law if the complainant in the injunction suit has a complete and adequate remedy at law. We hold that the appellee had such a remedy in the action at law which it sought in this case to enjoin.\\nReversed, and bill dismissed.\"}" \ No newline at end of file diff --git a/miss/1735155.json b/miss/1735155.json new file mode 100644 index 0000000000000000000000000000000000000000..dd17679caa0bebc0790462adceb90d8782559834 --- /dev/null +++ b/miss/1735155.json @@ -0,0 +1 @@ +"{\"id\": \"1735155\", \"name\": \"William McCaughan et al. v. William H. Hardy et al.\", \"name_abbreviation\": \"McCaughan v. Hardy\", \"decision_date\": \"1900-10\", \"docket_number\": \"\", \"first_page\": \"598\", \"last_page\": \"600\", \"citations\": \"78 Miss. 598\", \"volume\": \"78\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T17:31:42.807814+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"William McCaughan et al. v. William H. Hardy et al.\", \"head_matter\": \"William McCaughan et al. v. William H. Hardy et al.\\nWitnesses. Estate of decedent. Code 1893, $ 1740. Depositions.\\nA person cannot testify, by deposition or otherwise, to establish his own claim or defense against the estate of a deceased person which originated during the lifetime of such deceased person (code 1893, $ 1740), and it is immaterial that the decedent conducted the transaction out of which the claim arises by an agent who is yet alive and has testified in the case.\\nFrom the chancery court of Harrison county.\\nHon. Nathan C. Hill, Chancellor.\\nHardy and others, the appellees, were complainants in the court below; McCaughan and another, the appellants, were defendants there. The object of the suit was to reform a deed made by defendants to Mrs. H. L. Hardy, deceased, in her lifetime. Complainants were the heirs at law of the decedent. The purchase and negotiations between the decedent and defendants were conducted on the part of the decedent by her agent, W. H. Hardy, one of her heirs and a complainant, and said W. H. Hardy testified as a witness in the case for the complainants. The depositions of the defendants were taken in their'own behalf, but on motion of complainants they were suppressed by the court below, and that court having rendered a decree in favor of complainants, the defendants appealed to the supreme court, where they assigned for error the action of the court below in suppressing their depositions, and the rendition of the final decree against them.\\nWilliamson, Wells & Oroom, for appellants.\\nThe statutory rule (code of 1892, \\u00a7 1740) is a wise one, but should not be used so as so give the heirs of a decedent the opportunity to do what is sought to be prevented by this statute.\\nIn this case the record shows that the whole transaction as to the purchase of the lot from William and L. W. McCaughan was done by W. H. Hardy, and that if a mistake was made, it was discovered long before Mrs. Hardy\\u2019s death. Yet he waited until Mrs. Hardy had died and then brought this action for his children, her heirs, and in his own name as one of her heirs, making out the whole case by his own testimony, denying to the man with whom he dealt the right to testify in the case, by invoking the fact of his wife\\u2019s death. The record shows that Mrs. Hardy never did know anything as to the facts in the case. The purchase of the land was made by her husband, who is yet living, and who simply had the deed made to her. All of the facts which transpired were unknown to her, and were known only to W. H. Hardy and William Mc-Caughan, and yet it was permitted to W. H. Hardy to delay action until after her death, and then as her heir to bring suit and recover of appellants a lot which he had never bought or paid for; and this, too, by reason of his evidence and by denying to appellants the right to testify in the case.\\nA statute to prevent frauds should not be so construed or applied as to allow and invite the perpetration of a fraud.\\nThe decree is wrong on the facts. The solemn, deliberate act of the parties to a deed in making a conveyance of lands should not be lightly set aside. A purchaser of land should not be permitted to accept a conveyance and act upon it for years and then come in with a bill for reformation and secure the title to other and different and much more valuable property on his ex parte testimony as to an error committed. The proof should be clear and unmistakable in such a case, and we submit that the evidence in this case does not meet the requirements. OrofbonY. Building, etc., Association, 77 Miss., 166; Endlich on Construction of Statutes, sec. 34; Black on Interpretation of Laws, 275; lb., 282.\\nBowers, Ohaffe & McDonald, for appellees.\\nThe court below rightfully suppressed appellants\\u2019 depositions. Code 1892, \\u00a71710; Jades v. Bridnoell, 51 Miss., 882; Lovev. Stone, 56 Miss., 119; Duncan v. Oerdine, 59 Miss., 550; Wetherbee v. ALoi, 72 Miss., 355. The decree appealed from was manifestly correct on the competent evidence in the case.\", \"word_count\": \"781\", \"char_count\": \"4365\", \"text\": \"Calhoon, J.,\\ndelivered the opinion of the court. We cannot hold that there was error in suppressing the depositions. If it were an original proposition, we might or might not do so, but we feel bound by the cases of Duncan v. Gerdine, 59 Miss., 550, and Wetherbee v. Root, 72 Miss., 355. We cannot reverse the chancellor on the facts.\\nAffirmed.\"}" \ No newline at end of file diff --git a/miss/1775417.json b/miss/1775417.json new file mode 100644 index 0000000000000000000000000000000000000000..270d0c3dc6437a4aff4f59bebae30242f3baccbe --- /dev/null +++ b/miss/1775417.json @@ -0,0 +1 @@ +"{\"id\": \"1775417\", \"name\": \"Henry Commander v. Hezekiah Brazil\", \"name_abbreviation\": \"Commander v. Brazil\", \"decision_date\": \"1906-04\", \"docket_number\": \"\", \"first_page\": \"668\", \"last_page\": \"674\", \"citations\": \"88 Miss. 668\", \"volume\": \"88\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:23:55.849511+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Henry Commander v. Hezekiah Brazil.\", \"head_matter\": \"Henry Commander v. Hezekiah Brazil.\\n[41 South. Rep., 497.]\\nIni-ants. Contracts. Frauds. Estoppel. False representations as to age.\\nAn infant representing himself to be adult, his appearance not contradicting him, and thereby enabling himself to enter into a contract and enjoy its benefits, the party dealing with him believing him to be adult, will be estopped to plead infancy at the time of the execution of the contract as a bar to its enforcement.\\nFrom the chancery court of Monroe county.\\nHon. Baxter McFarland, Special Chancellor.\\nBrazil, the appellee, was complainant in the court below; Commander, the appellant, was defendant there. From a decree in complsiinRnt^fayornhe. defendant appealed to the supreme court.\\nAppellant, Commander, and his stepfather, McDaniel, entered into business as liverymen, and purchased from the wife of appellee, Brazil, certain horses, carriages, etc., giving notes for the purchase money, which notes were -secured by a trust deed on the personal property transferred, and as additional security embraced in said trust deed a tract of land belonging to appellant. McDaniel afterwards died (according to the allegations of the bill, intestate and insolvent), and the payment of the notes having failed, and the personal property conveyed in said trust deed having been sold, and the amount realized from the sale not being sufficient to liquidate said notes, Mrs. Brazil, wife of appellee, filed the bill in chancery in this case, praying an accounting to ascertain the amount due on the indebtedness, and for the sale of the land and the application of the proceeds to the payment of the balance found to 'be due. Pending the suit, the appellee, having acquired the claim by assignment from his wife, became a party to tbe suit. Tbe appellant, Commander, filed a plea setting up that he was an infant when the contract was made, which, being overruled by the court, he answered, mailing his answer a cross-bill, and denied that he received any benefits from the property purchased by him and his stepfather, and charged that the complainant knew of his infancy at the time the trust deed was executed, which facts were denied by the cross-defendant. The court below rendered a decree upon the pleadings and proofs granting the relief prayed by complainant, ordered the land sold, and the payment out of the proceeds of said sale of the amount due appellee.\\nW. H. Glifton, for appellant.\\nThe contracts of infants, except for necessaries which their guardian fails to supply, impose no liability at law upon them which is not voidable at their election. They may be liable in a suit at law for deceit or fraud, but the action must be in trespass or tort and not on the contract. Fraud, however, will prevent the disability from being pleaded in equity. If an infant of comprehensive age procure an agreement or contract to be made through false and fraudulent representations that he is of age, a court of equity will enforce his liability as though he were an adult. Ferguson v. Bobo, 54 Miss., 121; Brantley v. Wolf, 60 Miss., 420; Yaeger v. Knight, 60 Miss., 130; Upshaw v. Gibson, S3 Miss., 341.\\nIn every sale of a chattel, if possession be at the time in another and there be no covenant of warranty of title, the rule of caveat emptor applies, and the party buys at his peril. But if the seller has possession of the article sold and he sells as his own, and not as agent for another, and for a fair price, he is understood to warrant the title. Benjamin on Sales, 3 Am. ed., pp. 621, 639 ; Long v. Iliclcinbotham, 6 Cush., 181,189.\\nWhere in the sale of personal or real property the vendee protects himself by covenants of warranty and is- let in possession, be cannot defend himself against the payment of the purchase money without a previous eviction, unless in cases where there has been fraud. 2 Kent\\u2019s Oomm., 471; Brown v. Smith, 5 Iiow. (Miss.), 395; Waffordv. Ashcraft, 47 Miss., 646.\\nThe rule is different though where the grantor is insolvent and title invalid. Waddell v. Latham, 71 Miss., 357 (s.c., 15 South. Kep., 32) ; Waites v. Cooper, 24 Miss., 232.\\nWhere the suit for purchase money of chattels is brought by a fraudulent or insolvent grantor, the grantee in possession under a plea of failure or want of consideration may show a breach of the warranty, by proof of an invalid title or of encumbrances on the property. Dancy v. Suggs, 46 Miss., 606.\\nGeorge C. Paine, for appellee.\\nThe decree of the court below is based on the facts as disclosed by the testimony. This being true, this court must accept the findings of the chancellor, unless it is clearly and manifestly wrong. Derdeyn v. Donovan, 81 Miss., 697 (s.c., 33 South. Rep., 652) ; Melchoir v. Kahn, 38 South. Rep., 437.\\nThe court will observe that Chancellor Muldrow, by his decree, settled the plea of infancy. His decree was correct under the law as announced in the recent case of Ostrander v. Quin, 84 Miss., 230 (s.c., 36 South. Rep., 257). .\", \"word_count\": \"2256\", \"char_count\": \"12723\", \"text\": \"Mayes, J.,\\ndelivered the opinion of the court.\\nWe think this case was correctly decided on the facts, and would affirm it without any opinion were it not that there is involved the question as to whether or not a minor may make false representations as to his age, thereby inducing a contract with another person and accepting the benefits to be obtained under the contract, and afterwards escape liability by proving that he was not of age at the time of making the contract. The case of Ostrander v. Quin, 84 Miss., 230 (36 South. Rep., 257), comes very near deciding this question; but, inasmuch as there is some question as to -whether the decision was based on the ground that the minor in that case used the money for necessaries, and because it was so used the court held him liable, we deem it necessary to remove all doubt on this subject. The record in this case shows that W. H. Commander was nineteen years and nine months old at the time he bought out the livery stable and executed the deed of trust in question; that he was asked the direct question, two or three times, while negotiations were being held, as to his age, and he stated he was of age; that appellee made the trade with him in good faith believing him to be twenty-one years of age, and on faith of the contract turned over to him the entire livery business \\u2014 the appellant executing at the same time a deed in trust on the live stock, buggies, etc., so sold by appellee to him, and giving as additional security a deed of trust on fifty acres of land. The appellant having failed to pay according to his contract, and the personal property sold him by appellee having been sold under the deed in trust and not bringing enough to satisfy the debt, the land is now resorted to. It may be stated in this connection that the proof shows that the personal property sold had been much abused by misuse and neglect. Under these circumstances, can appellant successfully set up his minority as a defense to foreclosure proceedings ?\\nPerhaps there is no subject in the law that has received more elaborate discussion, or wherein there is more hopeless conflict of authority, than the subject now presented for decision by this court. It may be stated that the great weight of earlier authorities on this subject hold that a minor cannot be held liable on his contract, but the tendency of all modern text-books and decisions is in favor of holding a minor responsible under his contract, where he deliberately makes a false representation as to his age, and in this way induces another to contract with him and accepts the benefits of the contract. 'Whatever may be the weight of earlier authorities on this subject, common justice outweighs the unsatisfactory distinctions attempted to be set us as reason why a minor should not be held liable under these circumstances.^ It may be said that all authorities, with hardly an exception, and regardless of the way that the different courts have held upon the subject, recognize the right of the proposition ; for while they hold a minor cannot be sued on his contract, yet they hold that he is liable for his tort and make him responsible in damages for his false representations. Other authorities lay down the rule that he may not be sued at law, but he may be sued in equity. 'But it matters not in what court the suit may be brought or what the forra of the action, the thing done is the subjecting of the minor's property to the payment of an obligation that his fraudulent conduct has created. If the property of a minor is to be subjected to the payment of debt or damages thus created by him by his fraudulent misrepresentation, we fail to see what protection is given the minor by adhering to the distinction of form attempted to be drawn by many of the earlier authorities.^ As it is aptly expressed in the case of Rice v. Boyer, 108 Ind., 472 (9 N. E. Rep., 420; 58 Am. Rep., 53) : \\\"There is a connection between contract and tort in every case of bailment \\u2014 in the bargain and sale of personal property and of the purchase and sale of real estate; and if an infant is not responsible for his fraudulent misrepresentation of his age in connection with these transactions, there is not within the whole range of business transactions any case in which he could be made liable for his fraud.\\\" The tendency of courts at this present time, and of legislation, is to break away from mere forms and to go to the real substance of a controversy, irrespective of forms, and administer the law according to substantial right, unhampered by the technicalities of the older authorities.\\nIf a minor is to be held liable for his fraud, and. his property 'is to be taken to compensate in damages a person who has suffered damage by the minor's deceit, we fail to understand how it could be made any easier on the minor for this to be done through an action in tort, instead of on his contract, if the same results follow. Minority is given for the protection of a person under age, but it cannot be used as a weapon with which to commit fraud. \\\"When a minor has reached the stage of maturity in years and physical appearance calculated to deceive a person of ordinary prudence, and the minor does deceive such person as to his age, and asserts that he is of full age, and induces a contract to be made with him, and accepts the benefits of his contract, he will not be heard at any future time to deny that he was of full age at the time the contract was executed, and thereby escape the obligation of his contract, where the party dealing with him has dealt with him believing him of full age. We do not hold that an executory contract may be enforced against an infant who falsely represents himself to be of age, unless some damage has been done to the party with whom he contracts. We do not hold that an infant is estopped by his deed merely. We do not hold that any sort of a contract may be enforced against an infant at any time on account of his false assertion that he is of age, unless the age and appearance indicate such years of maturity as may well deceive the person with whom he deals.^ We do hold, however, that when a minor has reached that stage of maturity which indicates that he is of full age, and enters into a contract falsely representing himself to be of age, accepting the benefits of the contract, he will be estopped to deny that he is not of age when the obligation of the contract is sought to be enforced against him. Ostrander v. Quin, 84 Miss., 230 (36 South. Rep., 257) ; Ferguson v. Bobo, 54 Miss., 121; Levy v. Gray, 56 Miss., 318; Brantley v. Wolf, 60 Miss., 420; Rice v. Boyer, 58 Am. Rep., 53 ; Pomeroy's Equity (3d ed.), 945; 2 Paige on Contracts, \\u00a7 880; 16 Am. & Eng. Ency. Law (2d ed.), 292.\\nThe chancellor in this case decreed a foreclosure of the deed in trust, with a decree over against the minor for any balance that remained due after the sale of the property if the property did not bring a sufficient price to pay tbe debt. We approve the chancellor's decree in toto.\\nAffirmed.\"}" \ No newline at end of file diff --git a/miss/1789193.json b/miss/1789193.json new file mode 100644 index 0000000000000000000000000000000000000000..7a9d441754c19f61af6071e17d72f4e22c0852ac --- /dev/null +++ b/miss/1789193.json @@ -0,0 +1 @@ +"{\"id\": \"1789193\", \"name\": \"Josiah C. Williams v. Yazoo & Mississippi Valley Railroad Company\", \"name_abbreviation\": \"Williams v. Yazoo & Mississippi Valley Railroad\", \"decision_date\": \"1908-03\", \"docket_number\": \"\", \"first_page\": \"77\", \"last_page\": \"79\", \"citations\": \"93 Miss. 77\", \"volume\": \"93\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T23:23:43.126648+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Josiah C. Williams v. Yazoo & Mississippi Valley Railroad Company.\", \"head_matter\": \"Josiah C. Williams v. Yazoo & Mississippi Valley Railroad Company.\\n[46 South., 399.]\\nCarriers. Railroads. Live stoclc. Injury in transit. Claim. Verification. Waiver. Bill of Lading.\\nWhere a hill of lading for the carriage of live stock made it a condition precedent to the recovery hy the owner of damages for injury to the stock in transit that he should make claim therefor in writing under oath within a designated time the reception by the carrier, without objection until suit began, of a written unsworn demand is a waiver of a claim under oath.\\nFrom the circuit court of Claiborne County.\\nHon.. John M. Bush, Judge.\\nWilliams, appellant, was plaintiff in the court below; the railroad company, appellee, was defendant. there. From a judgment in defendant\\u2019s favor, predicated of a peremptory instruction, plaintiff appealed to the supr\\u00e9me court.\\nThe suit was by the owner of live stock for damages because of alleged injuries suffered while in transit; the bill of lading provided that the carrier should not be liable for su'ch damages, in any case, unless the owner made claim therefor in writing under oath within ten days after receiving the animals at the point of destination. The testimony touching the unsworn written claim made within the ten days in this cas\\u00e9 and other facts are stated in the opinion of the court.\\nB. B. Anderson and Alexander & Alexander, for appellant.\\nIt was error to take the case from the jury because the claim was not sworn to. In the first place, no such defense was interposed. It is true pleadings in the justice\\u2019s court and on appeal from the justice court do not have to be in writing, but it is still necessary for defenses to be made known. Certainly, it is not fair to a plaintiff to omit all reference to such a defense and to present it only by a motion for a peremptory instruction. The bill of lading containing the stipulation that the claim must be made within ten days and verified by affidavit was introduced by defendants. No special attention seems to have been 'directed to that provision. Even when plaintiff\\u2019s agent testified to mailing the notice within ten days and stated voluntarily that it was not sworn to no objection was interposed by defendant to the testimony. No motion was ever made to exclude it. Under the circumstances the point cannot be made for the first time in the instruction. Had timely objection been made by plea or objection to the evidence as to the mailing of the notice or otherwise, testimony could have been procured more fully establishing the receipt of the notice and what was done under it.\\nWhile our court held in Southern Express Go. v. Hunnicutt, \\u25a054 Miss. 556, that a stipulation requiring thirty days notice is reasonable, it has never held that ten days would be reasonable.\\nMayes & Longsireet, for appellee.\\n[The brief of counsel for appellee could not be found by the reporter, hence no synopsis thereof can be given.]\", \"word_count\": \"804\", \"char_count\": \"4569\", \"text\": \"Whitfield, C. J.,\\ndelivered the opinion of the court.\\nAnderson, the attorney for the plaintiff in this case testified that he mailed the notice of the claim within ten days, and that it was not sworn to. The railroad company made no objection to this testimony, nor was any motion ever made to exclude it. The point was not made at all that the claim failed because of not having been sworn to within the ten days, until the court was asked to instruct the jury peremptorily to find for the defendant. The case originated in the court of a justice of the peace, where no pleadings in writing are required. Owing to this fact, and to the course pursued by the appellee on the trial in the circuit court, the plaintiff had no reason to suppose this de fense would be made. If any objection had been made to the testimony of Anderson as to the mailing of the notice, appellant would have had opportunity of more fully establishing the receipt of the notice and what was done under it.. We do not think, under the circumstances of this case, that the appellee should have been permitted to make the point in the way in which it was made. It should have been treated as a waiver, within the principles announced in the case of Lasky v. Southern Express Company, 92 Miss., 268, 45 South., 869. It was the duty of the railroad employe, to whom the notice was mailed, to answer, and to answer promptly, and then make the point, if it was intended to rely upon that point. Railroad Co. v. Bogard, 78 Miss., 11, 27 South., 879. It is very questionable if the time (ten days) could be, in any case, upheld as a reasonable regulation.\\nReversed and remanded.\"}" \ No newline at end of file diff --git a/miss/1791960.json b/miss/1791960.json new file mode 100644 index 0000000000000000000000000000000000000000..f7e8c0ca96b053ff34724a455cf24097be081d47 --- /dev/null +++ b/miss/1791960.json @@ -0,0 +1 @@ +"{\"id\": \"1791960\", \"name\": \"Yazoo & Mississippi Valley Railroad Company v. Ophelia Sanders\", \"name_abbreviation\": \"Yazoo & Mississippi Valley Railroad v. Sanders\", \"decision_date\": \"1905-11\", \"docket_number\": \"\", \"first_page\": \"607\", \"last_page\": \"609\", \"citations\": \"87 Miss. 607\", \"volume\": \"87\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T20:51:33.951584+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Yazoo & Mississippi Valley Railroad Company v. Ophelia Sanders.\", \"head_matter\": \"Yazoo & Mississippi Valley Railroad Company v. Ophelia Sanders.\\n[40 South. Rep., 163.]\\nNuisance. Action for damages.\\nWhere animals were knocked, by a passing train from a railroad track and killed near a dwelling house, and the railroad company, after request, willfully, flagrantly, and oppressively refused to remove the carcasses, although the odor from them was extremely offensive to those living on the premises, the company is liable to the owner of the dwelling house for actual and punitive damages.\\nFrom the circuit court of Quitman county.\\nHon. Samuel C. Cook, Judge.\\nMrs. Sanders, the appellee, was the plaintiff in the court below; the railroad company, the appellant, was defendant there.\\nThe suit was for damages caused by the action of the railroad- company\\u2019s servants in refusing to remove the carcasses of mules killed by the train of the railroad company and hurled from the track to a point very close to plaintiff\\u2019s dwelling house. Plaintiff requested the servants of the railroad company to remove the carcasses, but they refused'to do so in a manner which the court pronounced to be willful, flagrant, and oppressive. The odor from the decaying carcasses was extremely offensive and annoying to the plaintiff and the members of her household, and made life in her home almost unbearable. The railroad company defended upon the ground that it was not obliged to remove the carcasses, because they were killed in the country, and not within the limits of any municipality. It further claimed that it was unable to' obtain the services of laborers or others to remove the dead animals, and that the carcasses were buried in a ditch, near which they lay, by being covered over with dirt. There was a dispute as to the extent to which the animals were so covered, the plaintiffs testimony tending to show that an insufficient quantity of dirt was put upon the carcasses\\u2014 only enough to serve as a pretext for burial \\u2014 and that this thin covering of dirt was removed by dogs and buzzards shortly after it was thrown upon the dead animals, of all of which the railroad company had due notice.\\nThe court below submitted the question of damages, both actual and punitory, to the jury, which returned a verdict for $500 in plaintiff\\u2019s favor. The defendant\\u2019s motion for a new trial having been overruled, it appealed to the supreme court.\\nMayes & Longstreet, and O. N. Burch, for appellant.\\nThe court erred in giving the second instruction for the plaintiff, and also in modifying the fifth instruction ashed by the defendant. These instructions submitted to the jury the question of punitory damages on the basis of the liability for infliction of a wanton, willful, or oppressive nuisance, or a reckless disregard of the rights of the plaintiff.\\nThe heavy verdict awarded, coupled with the fact that the court submitted the case to the jury under instruction as in the case of punitory damages, shows that punitory damages were given, and the case ought to be reversed for that reason. *\\nM. B. Denton, and J. ~W. Mach, for appellee.\\nAn examination of all the testimony in the case will show that the jury had ample ground upon which to base their finding that the action of the section foreman was characterized by such willfulness and gross disregard of appellee\\u2019s rights as to warrant the assessment of exemplary damages.\\nThe section foreman told appellee, not that it was impossible to move the stock, but that \\u201che did not have time to fool with it, and he was not going to fool with it.\\u201d It is true that he at first told her that he could not move the stock, but after she had.offered.him assistance and told him how the stock could be easily moved, lie gave her his real reason for refusal, as above stated.\\nBut if it be admitted that the section foreman could not have removed the stock nor procured their removal, it cannot be denied that he could have buried them properly. The jury have decided that the stock were buried with such gross negligence as to warrant punitory damages in this case, and we submit that their verdict should stand. The evidence at lea'st tends to warrant exemplary damages, and the question of awarding them was, therefore, properly submitted by the court; and the jury having decided the sufficiency of the evidence, it is not longer open to discussion. Railroad Go. v. Scwrr, 59 Miss., 456.\", \"word_count\": \"943\", \"char_count\": \"5495\", \"text\": \"Truly, J.,\\ndelivered the opinion of the court.\\nThe railroad company should take heart of grace at the smallness of the verdict in this case, instead of complaining that punitive damages were awarded. If the statement of the appellee be true \\u2014 and it was not only accepted by the jury, but its truth forces itself upon each individual member of the court \\u2014 a more flagrant, unwarranted, and oppressive violation and trampling upon the rights of the public was never presented to an appellate court. To willfully commit a trespass upon the rights of an individual is of itself sufficient to permit the ^warding of punitive damages, though committed upon but .a single occasion. What, then, must be said of a case where for each minute of the time, by day and by night, from day to day, there was a continued violation of the rights of appellee, by the commission of an act which rendered the enjoyment, and practically the habitation, of her home impossible? Under the facts of this record, not even the limit of the amount claimed in the declaration would have induced us to interfere with the amount of the verdict. There was no error of law.\\nAffirmed.\"}" \ No newline at end of file diff --git a/miss/1794680.json b/miss/1794680.json new file mode 100644 index 0000000000000000000000000000000000000000..6f2a198a2c2693f41e93e10f77f1258113ee63c8 --- /dev/null +++ b/miss/1794680.json @@ -0,0 +1 @@ +"{\"id\": \"1794680\", \"name\": \"H. H. Brooks et al. v. H. E. Spann\", \"name_abbreviation\": \"Brooks v. Spann\", \"decision_date\": \"1885-10\", \"docket_number\": \"\", \"first_page\": \"198\", \"last_page\": \"204\", \"citations\": \"63 Miss. 198\", \"volume\": \"63\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T22:02:56.945608+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"H. H. Brooks et al. v. H. E. Spann.\", \"head_matter\": \"H. H. Brooks et al. v. H. E. Spann.\\n1. Bill in Chancery. Amendment of. Anticipation of defense.\\nS., a legatee in her deceased father\\u2019s will, exhibited a bill against the residuary legatees and devisees therein to fix a charge for the payment of her legacy on the property received by the defendants from the testator\\u2019s estate. The defendants pleaded res adjudicata. S., on leave obtained, amended her bill so that it now set out not only her right to the legacy, but also that the suit in which the decree so pleaded was rendered was instituted and prosecuted without her consent, knowledge, or procurement. The executors of the will were parties to the decree assailed, but not to the present suit. It was shown that the estate had been fully administered, and all of it received by the defendants. The defendants demurred to the bill on the ground that the amendment set up a different case from that presented in the bill, and sought different relief. Held, that the amendment simply anticipated the defense and met it, and therefore the ground of demurrer was untenable.\\n2. Limitation op Actions. Right to legacy. Mamed woman. Petition to cmnul decree.\\nUnder the Code of 1880 the right of a married woman or any other person to have annulled a decree in a suit apparently brought by her to recover a legacy is by analogy to a right of appeal or a bill of review, and to the right to surcharge and falsify the accounts of executors, administrators, and guardians, under $$ 2680, 2681, and 2075, limited to two years, and cannot be extended by the fact that a hill seeking such annulment also seeks to recover the legacy, the right to which, but for the decree against her, might he asserted at any time within six years.\\n8. Decree. Rill to annul. Excuse for delay in filing.\\nWhere a bill to annul a decree is exhibited more than two years after the rendition of the same, it must set out a valid excuse for the delay in instituting the suit, as that the complainant had no knowledge of the existence of the decree, or of such facts as would reasonably have put him on inquiry, and led him to discover that such decree had been rendered within two years preceding the exhibition of his bill.\\nAppeal from the Chancery Court of Lowndes County.\\nHon. F. A. Critz, Chancellor.\\nThe case is stated in the opinion of the court.\\nOrr & Sims, for the appellants.\\n1. The amendment changed the whole character of the suit and the litigation. The first bill was a proceeding in rem\\u2014to establish ap pellee\\u2019s right to one-fourth of theland of her father\\u2019s estate, andforsix thousand dollars legacy and twenty-six years\\u2019 interest. The bill is to vacate a decree; to overhaul a final settlement made by executors nineteen years ago, each of whom are in their graves; to conglomerate all the issues in this suit with all the issues in the other; to force H. H. Brooks, Mary Helm, and S. Alice Brooks to join in issues with George N. Hairston, as administrator of the estate of George Hairston, deceased. This is carrying the doctrine of amendment to an absurd extent. Emerson v. Wilson, 34 Am. Dec. 697; 27 Am. Dec. 88; 16 Am. Dec. 407; 2 Am. Dec. 415, and note 417.\\n2. The peculiar facts in this case, as presented by the bill and exhibits under the demurrer, furnish abundant reason why 'this court should adhere to the law as settled for many years in this State.\\nAll of the evils adverted to by Judge Woodruff in Hamilton v. Wright, 37 N. Y., will be incurred by the appellants if this court abandons the sound rule of holding parties bound by the judicial records of the county, and the conduct of judges and attorneys in making up these records.\\n3. The statute of limitations would afford protection to the three children of Thomas B. Brooks if a properly framed bill was filed, and so it would be for the representatives of the executors under the decree of the court auditing their final settlement in 1868.\\nWm. Baldwin, for the appellee.\\n1. In this State amendments to pleadings in chancery have been refused where the party abandoned his right to the subject-matter of the controversy as asserted in his original bill and came in by amendment to assert a different right, springing from different relations to the subject-matter. In such cases the amendment presented an absolutely new case, dependent upon entirely new rights, and of course could not be held to be a legal development of the former proceeding.\\nNot so in this case. By the original bill a certain relief is asked, based upon certain rights asserted. But an outwork is presented by plea, which must be taken before the substance can be reached, to wit: the former'adjudication in case No. 206. Now, the amended bill seeking and asking the same relief, based on the same rights, asks the court to examine and determine the validity of this barrier, and after removing that to grant the relief sought by the original proceeding.\\nThere is no change of purpose, nor of parties, nor of right, nor of relationship to the subject.\\n2. Duncan v. Gerdein,- 59 Miss. 555, is conclusive as to the right of appellee to attack the decree.\\n3. The land of the deceased was charged with the trust of paying this legacy. Knott v. Bailey, 54 Miss. 235; Heatherington v. Lewenberg, 61 Miss. 372. And such trusts are governed by \\u00a7 2696 of Code of 1880. Templeton v. Hopkins, 45 Miss. 424.\", \"word_count\": \"2550\", \"char_count\": \"14361\", \"text\": \"Cooper, C. J.,\\ndelivered the opinion of the court.\\nAppellee exhibited her bill in the Chancery Court of Lowndes County against the residuary legatees and devisees of T. C. Brooks, to fix upon the property received by them a charge for the payment of a legacy given her by the testator, her father. To this bill the defendants interposed a plea, or res judicata, averring that in the year 1868 the complainant, by W. C. Brooks, her next friend, had exhibited her bill in chancery against the executors and the defendants to enforce the payment of the legacy now sued for; that the executors had filed an answer and cross-bill setting up, among other defenses, an ademption of part of the legacy and payment of a part; that on final hearing it was decreed that complainant was not entitled to recover, and her bill was dismissed at her costs. Upon the filing of this plea the complainant asked and obtained leave to amend her bill, which was done, and the bill as amended, after showing the right of complainant to the legacy, charged that the defendants pretended that there had been former proceedings touching the same subject-matter. She set out by apt words the proceedings referred to in the former plea, and made the record in that cause a part of her bill, and averred that the said suit was instituted and prosecuted without her consent, knowledge, or procurement; that neither the party who appeared therein as her next friend nor- the attorneys by whom the bill was filed had ever been authorized or employed to institute such suit, and that she neither knew nor consented to their action. To this amended bill the defendants interposed a demurrer, which was overruled by the court, and from that action this appeal is prosecuted.\\nThe demurrer contains many grounds of objection, only a f\\u00e9w of which we deem it necessary to examine.\\nOne ground of demurrer is that by the amendment the complainant made a different case from that set out in her bill, making it, in fact, a new bill founded on-a totally different set of facts and seeking wholly different relief; another is that on the face of the bill no equity appears, and another is that the complainant is barred by the statute of limitations.\\nThe first objection is untenable. The complainant might have exhibited a bill for the single purpose of annulling the former decree, and, succeeding in that, have proceeded by a separate suit to recover the legacy, but there is no reason why she may not in this suit brought for the legacy anticipate the defense of her adversaries and attack and overthrow the decree by which it is sought to be sustained. It is true the executors were parties to the decree assailed, and are not parties to this suit. But the bill shows that the estate has been fully administered by the executors, who are now dead, and that the defendants have received from them the whole estate that was not lost by the emancipation of the slaves by the result of the civil war. The executors were parties as representatives of the estate, and in that character only. The defendants are now in their own persons such representatives, since they hold and claim the whole estate, and their right to it is. uncontroverted save by the complainant.\\nIn considering the other objections made by the demurrer, it is important to note that the bill is separable into two parts, for though its ultimate purpose is the single one of compelling payment of the legacy claimed, it is yet a bill to vacate and annul a decree and a bill to collect a debt. The right to the legacy considered without regard to the former proceeding and decree is a right in action in Mrs..Spann against which she, being covert, no statute of limitations began to run until the adoption of the Code of 1880 (November 1, 1880), by which the disabilities of married women were removed, and as a consequence they became as other persons are, subject to the bar of the statute of limitations. In this aspect of the case complainant would not be barred, since against the right propounded by her the statute of six years would be the shortest one which could be applied, and that time has not elapsed since the code went into operation.\\nBut in the assertion of her claim complainant finds herself confronted by a decree made by a court of competent jurisdiction in a suit professedly prosecuted by her, by which the identical relief now sought was denied. This decree, however erroneous it may be, presents, if valid, an insurmountable obstacle to the present suit; it must be attacked and nullified, or all controversy over its subject-matter is by it forever concluded.\\nWhile the complainant may, in this one action, seek both to annul the decree and to collect the legacy, she cannot, by combining the two, extend the time allowed her for a direct attack on the decree to that in which it is permitted her to sue for the legacy. If there is, therefore, any express statute of limitations, or any which a court of equity will adopt by analogy, which will bar her right to attack the decree, she may not, in attacking the decree, invoke that which would apply to the claim for the legacy if the decree did not exist.\\nThere is no statute of limitations applicable by its terms to the right to annul the decree, but in the absence of such statute the court will adopt that one which is applicable to analagous rights. By \\u00a7 2680 and 2681 of the Code of 1880, the time in which bills of review and appeals may be prosecuted is limited to two years, and by \\u00a7 2075 a like limitation is imposed upon the right to surcharge and falsify the accounts of executors, administrators, and guardians. It thus appears that for errors of law or fact, in the classes of cases named in these statutes, a uniform limitation of two years has been declared, and within such time, we think, persons having notice of decrees affecting their rights, which for fraud or other sufficient reasons should be vacated by the courts, ought to take action, fail ing in which, relief should be denied. Plymouth v. Russell Mills, 7 Allen 438; Evans v. Bacon, 99 Mass. 213; Gordon's Admr. v. Ross, 63 Ala. 363.\\nThe bill in this case does not state when or under what circumstances the complainant first learned of the existence of the decree attacked. It impliedly admits long knowledge of the facts by putting forth as an excuse for the delay in instituting her suit the fact that she had been continuously covert, and assumes that coverture not only prevented all statutes of limitations from running against her, but debarred her of access to the courts. This is a misapprehension of the effect of coverture. The disability of a married woman to sue has been in later days a fiction, derived from the common law rule of her absorption by the husband, on which there has been afforded to her by legislation certain privileges and immunities which are commonly designated by the courts as shields for her defense, but which in actual combat have often been found to be singularly effective as weapons of assault. But certainly since the adoption of the Code, of 1880, which contains the limitation which we apply in this case, the complainant has been as capable of asserting her rights as an j femme sole, and it was incumbent on her to show by her bill some excuse for not having commenced her suit within the two years. In Badger v. Badger, 2 Wallace 94, the court in stating the rule on this subject said: \\\" The party who makes such an appeal should set forth in his bill specifically what were the impediments to an earlier prosecution of his claim, how he came to be so long ignorant of his rights, and how and when he came to a knowledge of the matters alleged in his bill, otherwise the Chancellor may justly refuse to consider his case on his own showing without inquiry whether there is a demurrer or formal plea of the statute of limitations contained in the answer.\\\" Because more than two years had elapsed after the adoption of the Code of 1880 before' complainant exhibited her bill, and because there is no averment in the bill that the complainant had no knowledge of the rendition of the decree which she now attacks, and no knowledge of such facts as would reasonably have put her on inquiry, which would have discovered the fact that the decree had been rendered, until within two years of the exhibition of her bill, the demurrer should have been sustained.\\nThe complainant, upon the filing of her bill, commenced to prepare her case for trial by taking testimony, as she had the right to do, Code of 1880, \\u00a7 1941; this evidence is certified to us in the record, and though on demurrer it is not to be considered, we have looked at it with a view of determining whether on the facts disclosed by the evidence the bill might be amended. In our opinion the evidence is so strongly suggestive of knowledge, if not assent to what was done, that an amendment could not be made and supported which would warrant relief.\\nThe decree overruling the demurrer is reversed. The demurrer is sustained and bill dismissed.\"}" \ No newline at end of file diff --git a/miss/1833974.json b/miss/1833974.json new file mode 100644 index 0000000000000000000000000000000000000000..6027ef4ed7d170d3b3c819806732f297e9ea009d --- /dev/null +++ b/miss/1833974.json @@ -0,0 +1 @@ +"{\"id\": \"1833974\", \"name\": \"Perkinson v. Laurel Hot Mix, Inc., et al.\", \"name_abbreviation\": \"Perkinson v. Laurel Hot Mix, Inc.\", \"decision_date\": \"1965-04-26\", \"docket_number\": \"No. 43500\", \"first_page\": \"879\", \"last_page\": \"882\", \"citations\": \"252 Miss. 879\", \"volume\": \"252\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T00:52:47.924126+00:00\", \"provenance\": \"CAP\", \"judges\": \"Lee, G. J., and- Ethridge, Bracly and Inzer, JJ., concur.\", \"parties\": \"Perkinson v. Laurel Hot Mix, Inc., et al.\", \"head_matter\": \"Perkinson v. Laurel Hot Mix, Inc., et al.\\nNo. 43500\\nApril 26, 1965\\n174 So. 2d 391\\nWalker, Dillard & Baldwin, Laurel, for appellant.\\nMelvin, Melvin & Melvin, Laurel, for appellees.\", \"word_count\": \"425\", \"char_count\": \"2507\", \"text\": \"Gillespie, J.\\nAppellants' claim for workmen's compensation benefits was denied in turn by the attorney-referee, the Commission, and the circuit court.\\nThe evidence was to some extent conflicting, but there was substantial evidence to justify the Commission in finding the facts as next stated. Appellant-claimant was told by an official of Laurel Hot Mix, Inc., employer, to go to the employer's plant in Laurel to report for work. Claimant rode to the employer's plant with Mike Holmes, who was also being hired by employer. They used a pickup truck belonging to Holmes' father. When they arrived at the plant, they were told where the work was to start in Covington County. Holmes and claim ant then drove to the job site in Covington County and worked that day, after which they drove in the Holmes truck to Ellisville where both men lived. The second day Holmes and claimant used the same transportation to drive to the job site and they worked until late in the afternoon. Holmes was driving the same truck, with claimant as a passenger, traveling from the job site to their homes in Ellisville when a tie rod came loose and he lost control of the truck, resulting in a wreck and injuries to claimant. Employer did not order claimant to ride with Holmes, nor was Holmes paid any mileage to and from the job site. It was the responsibility of Holmes and claimant to choose their own means of transportation to and from work on their own time.\\nWe find no merit in the contention of claimant that the order denying compensation is without substantial evidential basis, or that it is against the overwhelming weight of the evidence. This Court adhers to the general rule that the hazards encountered by employees while going to or returning from their regular place of work and off the employer's premises are not incident to employment and accidents arising therefrom are not compensable. Dunn, Mississippi Workmen's Compensation \\u00a7 103 (1957), and cases therein cited. Claimant did not bring his case within any recognized exception to the stated rule.\\nThe evidence offered by claimant and rejected by the attorney-referee was so remote in point of time that it would not have been of value in deciding the issue. It could not have had any probative value.\\nAffirmed.\\nLee, G. J., and- Ethridge, Bracly and Inzer, JJ., concur.\"}" \ No newline at end of file diff --git a/miss/1839568.json b/miss/1839568.json new file mode 100644 index 0000000000000000000000000000000000000000..34a4f1652c1f08fa28e9fc799a6d3f41ff4f858c --- /dev/null +++ b/miss/1839568.json @@ -0,0 +1 @@ +"{\"id\": \"1839568\", \"name\": \"Conner v. Polk\", \"name_abbreviation\": \"Conner v. Polk\", \"decision_date\": \"1931-03-30\", \"docket_number\": \"No. 28267\", \"first_page\": \"24\", \"last_page\": \"31\", \"citations\": \"161 Miss. 24\", \"volume\": \"161\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T00:21:46.081990+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Conner v. Polk.\", \"head_matter\": \"Conner v. Polk.\\n(Division A.\\nMarch 30, 1931.\\nSuggestion of Error Overruled May 4, 1931.)\\n[133 So. 604.\\nNo. 28267.]\\nHall & Hall, of Columbia, for appellant.\\nPowell, Harper & Jiggitts, of Jackson, for appellant.\\nRawls & Hathorn, of Columbia, for appellee.\\nArgued orally by Lee Hall, for appellant, and by C. V. Hathorn, for appellee.\", \"word_count\": \"1011\", \"char_count\": \"5869\", \"text\": \"Smith, C. J.,\\ndelivered the opinion of the court.\\nSeveral years ago the appellant was appointed guardian of the estate of the appellee's minor son; she then waiving her right to the appointment, but retaining the custody of her son. The boy is not yet fourteen years old. The appellee filed a petition requesting the removal of appellant as guardian of her son, and the appointment of herself in his stead. The petition charged mismanagement by the appellant of the ward's estate, and evidence in support thereof was introduced. The court declined to pass upon this evidence, but held that the evidence discloses that the reason which caused the appellee to waive her right to the guardianship of her son had disappeared, and that she should now be appointed as his guardian. The decree removes the appellant as guardian of the minor; appoints the appellee as such; directs the appellant to file.a final account of his guardianship; to turn over the minor's estate to the appellee when she qualifies as guardian thereof; and provides that her receipt therefor shall \\\"constitute a full acquittance and release to the said guardian and the surety on his guardian 's bond for all items of cash delivered to said guardian, but as to all amounts due said minor's estate as evidenced by notes, deeds of trust or securities, other than cash on hand, the guardian, C. E. Conner and the surety on his bond, shall not be released and acquitted therefor until such time as the same shall have been paid, or shall have been put into such secured form as may hereafterwards be approved by the court or until the court shall relieve said guardian and surety. ' '\\nSection 1872, Code 1930, provides that \\\"the court by which a guardian was appointed, may, for sufficient cause, remove him after having him cited to appear;\\\" and section 1873 thereof provides that, \\\"whenever a guardian . is removed, the court may appoint another.\\\" The statute does not designate the causes for the removal of a guardian, but leaves that to the sound discretion of the chancellor, which discretion should not be interfered with by this court, unless it has been manifestly abused.\\nThe union of the guardianship of the person and of the estate of the minor is always desirable, particularly so when the person in whom the two guardianships united is the minor's parent. The statute prefers blood relatives of the minor to strangers; and a stranger may be removed as guardian in order that a blood relative of the minor may be appointed. Spaun v. Collins, 10 Smedes & M. 624. In that case, the blood relative, an uncle, had not waived Ms right. to the appointment, but such a waiver does not forever bar the blood relative from being thereafter appointed when, in the opinion of the chancellor, his appointment is desirable. Here the mother is shown to be a person suitable for the trust, and the advantages flowing from the union of the guardianship of the estate with that of the person are generally such that it cannot be said that the removal of the appellant and the appointment of the appellee was an abuse of discretion.\\nCounsel for the appellee rely on 28 C. J. 1082, section 53, where it is said that: \\\"Where a person having a prior right to be appointed guardian procures- or consents to the appointment of another, he waives his right and cannot claim letters for himself to the exclusion of the person so appointed.\\\" This text is based upon the holdings in three cases. In re Morhoff's Estate, 179 Cal. 595, 178 Pac. 294; Lefever v. Lefever, 6 Md. 472; Kahn v. Israelson, 62 Tex. 221. In the first two of these cases, the courts simply held the trial court had abused its discretion in refusing to remove the guardian and appoint another who, under the statute, had a prior right to the appointment. In the third case, this court held that the statute expressly provided the grounds for the removal of a guardian, and thereby excluded any other. We are not here holding that the appellee has an absolute right to the removal of the appellant and the appointment of herself, but simply that the matter rests in the sound discretion of the chancellor.' But it is said by counsel for the appellant that the petition alleges that he is unfit for the discharge of the trust, prays for his removal on that ground, and, consequently, the court below should not have removed him, unless the allegations of his unfitness were sustained. The petition alleges that the appellee is the minor's mother, prays for the removal of the appellant as his guardian, and for the appointment of the appellee in his stead. This is sufficient to support a decree without the allegations of the appellant's unfitness, which may he treated as surplusage.\\nComplaint is made of that portion of the decree hereinbefore quoted which provides that the appellant and his sureties shall not be released from liability on account of appellant's guardianship until the loans of his ward's money made by him \\\"shall have been paid, or shall have been put in such secure form as may be hereafterwards approved by the court, or until the court shall relieve said guardian and surety.\\\" This provision of the decree adds nothing to the appellant's and his surety's liability, which liability will cease when his final account is filed and approved. Should any loss accrue to the ward's estate after the appellant has turned it over to the appellee, caused not by any dereliction of duty on his part but on the part of the appellee, she, and not the appellant, will be responsible therefor.\\nAffirmed.\"}" \ No newline at end of file diff --git a/miss/1844832.json b/miss/1844832.json new file mode 100644 index 0000000000000000000000000000000000000000..2bf4cd4458d07c18ae415fd555305eb45d167ba5 --- /dev/null +++ b/miss/1844832.json @@ -0,0 +1 @@ +"{\"id\": \"1844832\", \"name\": \"Everett v. Commercial Securities Co., Inc.\", \"name_abbreviation\": \"Everett v. Commercial Securities Co.\", \"decision_date\": \"1952-05-12\", \"docket_number\": \"No. 38417\", \"first_page\": \"287\", \"last_page\": \"292\", \"citations\": \"214 Miss. 287\", \"volume\": \"214\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:10:17.326854+00:00\", \"provenance\": \"CAP\", \"judges\": \"Roberds, P. J. and Alexander, Lee, and Arrington, JJ., concur.\", \"parties\": \"Everett v. Commercial Securities Co., Inc.\", \"head_matter\": \"Everett v. Commercial Securities Co., Inc.\\nMay 12, 1952.\\nNo. 38417\\n(58 So. (2d) 792)\\nWilliam S. Murphy, for appellant.\\n\\u00abT. H. Daniel and O. F. & J. O. Moss, for appellee.\", \"word_count\": \"1204\", \"char_count\": \"6906\", \"text\": \"Holmes, J.\\nThe appellee sued the appellant and one M. L. Malone in an action of replevin to recover the possession of a 1947 model, Chevrolet automobile. The appellee in its declaration based its right of recovery upon an alleged default under a conditional sale contract covering the car. No appearance to the action was entered by the defendant Malone. The appellant filed a plea of not guilty. Pursuant to the writ duly issued, the car was seized and valued by the officer in his return at $1,000. Upon failure of either of the defendants to enter into a forthcoming bond for the car within the time allowed, the appellee gave the required.bond and the car was delivered to its possession to abide the judgment of the court. Upon the trial of the cause, the court gave a peremptory instruction for the plaintiff and proper judgment' was entered, from which appellant prosecutes this appeal.\\nWe find no dispute in the material facts. On October 3, 1950, appellant purchased the car in question from Farmers Used Cars and was allowed a credit of $404.38 on the purchase price for a Ford, car traded in in the transaction. The balance of the purchase price including interest, insurance, and finance charges was $1,121.61. To cover this balance the appellant executed to the Farmers Used Cars a promissory note and a conditional sale contract providing for the payment of the indebtedness in installments of $53.41 per month beginning on November 3, 1950. The contract retained in the seller title to the ear until the indebtedness should be paid and authorized the seller or its assignee to take possession of the car in the event of any default in the payment of the indebtedness or any installment thereof. Both the note and the contract were duly assigned to the appellee on the date of their execution. On October 7, 1950, the car was damaged in a wreck and was towed into the garage of M. L. Malone. The insurance on the car was carried by Audubon Insurance Company, for which company Sullivan and Company of Jackson served as adjustors. Notice of the wreck and the whereabouts of the car was given by Malone to- Farmers Used Cars by telephone and later by letter, and this information was communicated to the appellee. Payment of the November 3, 1950 installment of $53.41 was not made or tendered on its due date. On November 13, 1950, appellant sent a money order for $35 to Sullivan and Company which was intended to be applied on the November 3, 1950 installment. Sullivan and Company was not the agent of appellee and had no authority to receive payments for the appellee, but nevertheless delivered the $35 money order to appellee's representative. Appellant claims to have sent another money order for $18 to Sullivan and Company on November 20, I9601 to be applied on the November 3, 1950 installment. This money order was not shown to have been received by either Sullivan and Company or the appellee. On November 20,1950, the appellee contacted the appellant and returned to her the $35 money order and demanded that the contract be brought up to date or the possession of the car surren dered. Appellant offered to' return the $35 money order to appellee and advised appellee that she had sent to Sullivan and Company another money order for $18, the two aggregating $53, and offered to' pay in cash the additional sum of 41$ to make up the November 3, 1950 installment of $53.41. Appellee, as stated, had never received the money order for $18 and declined appellant's offer and demanded the possession of the car. No other payment or tender was made by appellant. There was no proof of the value of the car other than the prima facie evidence thereof appearing from the officer's return.\\nThe appellant complains that the trial court erred in granting a peremptory instruction for the appellee because the evidence created an issue of fact for the determination of the jury both as to the question of the value of the car and the question as to whether or not appellant had made a tender of the November 3, 1950* installment. In view of the fact that the appellee and not the appellant gave bond for the car and was awarded the possession of it, we do not find that the value of the car became material, but even if material, there was no proof of value other than the officer's valuation in his return and this was prima facie evidence of the car's value. Section 2848, Mississippi Code of 1942. We think there was no issue of fact created by the evidence on the question of the claimed tender of the November 3, 1950 installment. The undisputed proof is that all the appellant did was to offer the return to appellee of the $35 money order and claim credit for the $18 money order which was sent to appellee and which appellee never directly or indirectly received, and to offer to pay the additional sum of 41$. This, in our opinion, did not constitute a valid tender. Appellant was therefore in default in the payment of the November 3, 1950 installment and appellee's right to the possession of the car accrued under the provisions of the conditional sale contract. Hence we think that the trial court committed no error in granting the peremptory instruction.\\nAppellee offered in evidence a written release signed by the appellant and which, by its terms, surrendered all of appellant's right, title and interest in and to the car. The introduction of this instrument was objected to by appellant upon the ground that appellee in its declaration relied not upon this instrument but upon the conditional sale contract, thus electing to recover the possession of the car and deal with it as required by the terms of the conditional sale contract. The objection was overruled. It is not necessary, however, for us to pass upon and we do not pass upon, the question of the admissibility of this instrument, nor the effect of the instrument under the circumstances, in view of our conclusion that appellant was in default in the payment of the November 3, 1950 installment, thus entitling the appellee to the possession of the car.\\nNo question is here involved as to whether or not appellant is entitled to have appellee deal with the car, after repossessing it, as security under the terms of the contract and with reference to the equitable lights of the purchaser, nor is there here involved the question of the rights, if any, of appellant under Section 892 of the Mississippi Code of 1942, and hence we do not pass upon either of these questions.\\nWe have carefully considered the other assignments and find no reversible error therein.\\nWe are accordingly of the opinion that the judgment of the court below should be and it is affirmed.\\nAffirmed.\\nRoberds, P. J. and Alexander, Lee, and Arrington, JJ., concur.\"}" \ No newline at end of file diff --git a/miss/1850136.json b/miss/1850136.json new file mode 100644 index 0000000000000000000000000000000000000000..b61bccdf272ca891da36b819fc27e27b56efa14c --- /dev/null +++ b/miss/1850136.json @@ -0,0 +1 @@ +"{\"id\": \"1850136\", \"name\": \"Ford, et al. v. City of Pascagoula\", \"name_abbreviation\": \"Ford v. City of Pascagoula\", \"decision_date\": \"1956-05-28\", \"docket_number\": \"No. 40026\", \"first_page\": \"265\", \"last_page\": \"271\", \"citations\": \"228 Miss. 265\", \"volume\": \"228\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T00:41:20.224429+00:00\", \"provenance\": \"CAP\", \"judges\": \"Hall, Lee, Ethridge and Gillespie, JJ., concur.\", \"parties\": \"Ford, et al. v. City of Pascagoula\", \"head_matter\": \"Ford, et al. v. City of Pascagoula\\nNo. 40026\\nMay 28, 1956\\n87 So. 2d 560\\nMay 28, 1956\\n87 So. 2d 558\\nE. J. Ford, Jr., Gulfport, for appellants.\\nKarl Wiesenburg, Pascagoula, for appellee.\", \"word_count\": \"1583\", \"char_count\": \"8914\", \"text\": \"McGehee, C. J.\\nThis is a proceeding in eminent domain, wherein that court, after being duly organized pursuant to Sections 2750, 2751, 2752 and 2753, Code of 1942, awarded to the appellants, Ebb James Ford, Jr., Mrs. Louise Pol Blanchard, and Mr. and Mrs. W. E. Frederic the sum of $11, 789.50 as compensation for the value of a vacant corner lot 77 feet by 100 feet in dimensions, located across the street from the new million dollar county courthouse in the City of Pascagoula, and on which lot a new city hall was to be constructed. These property owners appealed the case to the Circuit Court of Jackson County, where the case was tried de novo before another jury and with the result that a judgment was there rendered in favor of the said property owners for the sum of $12,541.67.\\nPending the appeal from the eminent domain court to the circuit court there were certain negotiations of compromise conducted between the appellant W. E. Frederic and the City of Pascagoula officials, and wherein the said Frederic agreed to accept the sum of $12,000.00 in settlement. The city board undertook to accept this offer and a warrant was prepared and issued accordingly, but of course the same was not to be cashed until all of the co-owners of the property had executed the proper deed of conveyance.\\nUpon the hearing of a motion in the circuit Court as filed by the appellee, City of Pascagoula, to dismiss the appeal from the eminent domain court on the basis of the said negotiations and purported settlement, the said W. E. Frederic testified that the legal title of the property was in the appellant Ebb James Ford, Jr., and that the witness was only agreeing to accept $12,000 for his interest in the lot. There were some objections made on behalf of the appellants to certain questions asked the said Frederic on the hearing of the motion to dismiss, but the objections were not interposed on the specific ground that the negotiations between the witness and the City Board were negotiations for a compromise of the litigation, but were made on wholly different grounds. At any rate, the court heard this mo tion in the absence of the jnry in the circuit court, and overruled the same. Therefore the appellants could not have been prejudiced by the fact that the $12,000 offer of compromise was injected into the hearing before the trial judge on the motion to dismiss the \\u00bfppeal from the eminent domain court to the circuit court.\\nUpon the trial before the jury in the circuit court, the same negotiations between the said Frederic and the City Board, evidenced by a writing embodying the purported settlement agreement, were introduced before the jury, and the jury was thereby advised of the fact that at least one of the co-owners of the property had consented to a settlement of $12,000, and there was sufficient basis for the jury to infer that he was undertaking to negotiate for the settlement on behalf of himself and the other co-owners, even though no proof was made that he had authority to represent anyone other than himself in such negotiations. He testified again before the jury that $12,000 was what he was willing to accept for his own interest in the property.\\nHowever, the record of the trial on the merits in the circuit court is wholly barren of any objection, either in the presence or absence of the jury, on the part of the appellants to the injection of this negotiation for compromise, although the assignments of error before this Court are, first, that the circuit court erred in admitting testimony on behalf of the plaintiff, City of Pascagoula, to show settlement negotiations while the case was pending in the circuit court; second, that the circuit court erred in allowing the plaintiff to introduce documents showing the settlement negotiations conducted between the plaintiff's attorney with the defendant W. E. Frederic in the absence of the said Frederic's attorney; and there are also assignments of error relating to the overruling of objections by the defendants to other testimony, and in sustaining objections of the plaintiff to testimony offered by the defendants, and it is assigned as error that the verdict of the jury in the circuit court was against the weight of the evidence 'to snch an extent as to show bias, passion and prejudice on the part of the jury in favor of the plaintiff and against the defendants, and that therefore the court erred in overruling the motion of the defendants for a new trial. The foregoing are the sole assignments of error before this Court.\\nThe first two grounds of .error assigned are not, in our opinion, well taken for the reasons hereinbefore stated, and we do not think that any reversible error was committed in the admission or exclusion of evidence. Nor do we think that the verdict of the jury is against the weight of the evidence as to the value of the property to such an extent as to show bias, passion and prejudice on the part of the jury. Moreover, since two juries have passed upon the testimony as to what is the fair market value of the property in question, we are unable to say with an abiding confidence that the trial judge committed reversible error in overruling the motion for a new trial.\\nThe judgment rendered upon the verdict of the jury in the circuit court in the sum of $12,541.67 must, therefore, he affirmed.\\nAffirmed.\\nHall, Lee, Ethridge and Gillespie, JJ., concur.\\nON MOTION OF APPELLEE TO STRIKE APPELLANTS' BRIEF.\\nIn this case the brief on behalf of the appellants was not filed until May 14, 1956, the date on which the case was set for submission. Under Rule 7 of this Court the brief was required to have been filed not later than thirty days before the date the case was set for hearing, and this rule requires that the appellee's brief was to have been filed not less than ten days before the date the case was- set for hearing. \\u2022\\nWe understand that the delay of the appellants in filing their brief was due to the illness of their attorney. But be this as it may, the appellee would have been entitled to file its brief at any time within twenty days from the filing of the brief on behalf of the appellants. The appellee has not filed a brief in the case, pending its motion to strike appellants' brief for noncompliance with the rules of this Court. We have concluded, however, on the basis of the appellants' assignment of errors and its brief in support thereof, together with a careful examination of the record in the case, that the filing of a brief by the appellee is unnecessary to the proper disposition of this appeal.\\nMoreover, Rule 33 of this Court provides that our rules ' ' shall be considered as general rules for the government of the court and the conducting of causes; and as the design of them is to facilitate business and advance justice, they may be relaxed or dispensed with by the court in any case where it shall be manifest to the court that a strict adherence to them will work surprise or injustice. ' '\\nIt has not been the policy of this Court to strike a brief on account of the fact that it is filed late where we are satisfied that the delay was due to causes beyond the control of the attorney filing the same. But we allow the opposing counsel sufficient time thereafter to file a reply brief.\\nThis case was passed for hearing on its merits from a former setting to the docket of May 14, 1956, and without the consent of the appellee. However, it is not a condition precedent to the passing of a case from one setting to another that all the parties should consent thereto \\u2014 in fact, we sometimes decline to pass a case even though all the parties have consented and requested that the same be done. Guynn v. Shulters, 223 Miss. 232, 74 So. 2d 803. In that case, there was involved a request that it and five other cases between the same parties be passed by consent of counsel. To have granted the request would have resulted in the con tinuance of about one balf of the entire docket set on the day that these cases were to have been heard. Whether a case is passed or not must of necessity be determined by this Court in its purpose to expedite the business of the court by having enough cases submitted on each Monday for consideration during the following two weeks.\\nThe motion of the appellee to strike the brief filed on behalf of the appellants is overruled, and the case is being this day affirmed on its merits, without awaiting the filing of a brief by the appellee, since we have concluded that on the basis of the assignment of errors and brief on behalf of the appellants in support thereof, and on the basis of what is disclosed by the record, the case should be affirmed.\\nMotion overruled.\\nHall, Lee, Ethridge, and Gillespie, J.J., concur.\"}" \ No newline at end of file diff --git a/miss/1866768.json b/miss/1866768.json new file mode 100644 index 0000000000000000000000000000000000000000..da8aa8dd82bd83dfd348567e55c2571a62374269 --- /dev/null +++ b/miss/1866768.json @@ -0,0 +1 @@ +"{\"id\": \"1866768\", \"name\": \"Benton v. Friar\", \"name_abbreviation\": \"Benton v. Friar\", \"decision_date\": \"1934-11-05\", \"docket_number\": \"No. 31369\", \"first_page\": \"361\", \"last_page\": \"370\", \"citations\": \"171 Miss. 361\", \"volume\": \"171\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:23:22.001667+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Benton v. Friar.\", \"head_matter\": \"Benton v. Friar.\\n(Division B.\\nNov. 5, 1934.\\nSuggestion of Error Overruled Dec. 17, 1934.)\\n[157 So. 356.\\nNo. 31369.]\\nH. B. Everitt, of Pascagoula, and Chas. E. Clark, of Ocean Springs, for appellant.\\nFord, White & Morse, and W. T. Moore, all of Gulfport, for appellee.\\nArgued orally by H. B. Everitt and Charles E. Clark, for appellant, and by W. T. Moore, for appellee.\", \"word_count\": \"1648\", \"char_count\": \"9405\", \"text\": \"Ethridge, P. J.,\\ndelivered the opinion of the court.\\nAppellee, Mrs. Rita Brown Honor Friar, filed suit in the chancery court of Jackson county, Mississippi, against Mrs. Nell Benton, executrix of the estate of Mrs. Margaret Sodon Honor, deceased (who was the surviving widow of one, John B. Honor), and others, alleging that Mrs. Friar was a minor and appeared by her husband as next friend, and that Mrs. Nell Benton individually, and as executrix of the estate of Margaret Sodon Honor (Mrs. John B. Honor), whose last will and testament was probated in Jackson county, Mississippi, and others whose names and residences are set forth, were the defendants; and also alleging that the complainant was the adopted daughter of said John B. Honor, deceased, and his wife, having been adopted under the laws of Louisiana, by which she was given all the rights and privileges of a legitimate child. That John B. Honor departed this life on August 21, 1929', and thereafter in the matter of the succession of John B. Honor, deceased, in the civil district court of the parish of Orleans, state of Louisiana, a judgment was entered wherein Rita Brown Honor, being the same person as Mrs. Rita Brown Honor Friar, was recognized as the sole heir of her deceased father through adoption, and entitled as such to the ownership of one undivided half of all the property left by said John B. Honor, subject to the usufruct in favor of her mother by adoption, Mrs. Margaret Sodon Honor, widow of John B. Honor, who had an undivided one-half interest in all the property left by John B. Honor, deceased, and that the widow, Mrs. Margaret Sodon Honor, had the nsnfrnct of the other undivided one-half; and that thereafter, on August 14, 1930, Mrs. Margaret Sodon Honor died in Ocean Springs, Mississippi, in possession of all the property of said Bita Brown Honor Friar inherited from the estate of her father by adoption, and of a large real and personal estate in said county, leaving a last will and testament which was duly admitted to probate in the chancery court of Jackson county, Mississippi.\\nThe purpose of the bill and the prayer thereof was to have a construction of the will of Mrs. John B. Honor, and for the share of appellee in the property of John B. Honor, deceased, of which Mrs. John B. Honor had a life usufruct, which said will reads as follows:\\n\\\"I bequeath to my adopted daughter, Bita Brown Honor, one-half of my entire estate to be held in trust as. hereinafter set out. For all her goodness, faithfulness and kindness to me I bequeath to my niece, Nellie Benton, the sum of ten thousand dollars. I bequeath to my sister-in-law, Maria Honor, the sum of five thousand dollars. I bequeath to my sister, Bridget Sodon, the sum of five thousand dollars. I direct that the foregoing legacies shall have priority and be given in full. In the event that there be a deficiency of assets for the full .payment of the legacies hereinafter given, I direct that such hereinafter legacies shall abate proportionately in favor of those given above. I bequeath Bose Schully the sum of two thousand dollars. I bequeath Mrs. A. Y. Bosambeau two thousand dollars. I bequeath Stelle Bebentisde the sum of two thousand dollars. I bequeath Natalie Benedict the sum of two thousand dollars. I bequeath Rita Seiler the sum of two thousand dollars. I bequeath Alan Schully the sum of one thousand dollars. I bequeath Laura Sodon the sum of five hundred dollars. I bequeath my household furniture and effects to Nell Benton, desiring that in the event that should I predecease my sister Bridget Soden that she shall have a portion of said furniture as Nell Benton shall decide. I devise and bequeath the residue of my estate to Nell Benton. I name Nell Benton to be the executrix of this my last will and testament without bond. I name and designate Nell Benton to be my guardian of my daughter, Rita Brown Honor, during her minority and to be trustee of her estate until she shall reach the age- of twenty-five years. Said Nell Benton to hold the estate of the said Rita Brown Honor in trust, paying to my -said daughter such portions of the income and principal of said estate as my trustee shall deem proper until the said Rita Brown Honor shall have reached the age of twenty-five when her entire estate shall' be turned oyer to her without reserve. I authorize and direct my said executrix to sell any and all real estate belonging to my said estate, under such terms and conditions as to her may seem proper, and to execute and deliver all deeds or other writings necessary to convey title thereto. \\\"Written, signed and dated wholly in my own handwriting at Ocean Springs, Mississippi, this 17th day of November, 1929, on two sheets of paper, of which upon each I have written my name.\\n\\\"Mrs. John B. Honor.\\\"\\nThe chancery court construed the will, but reserved decision on the part of the bill relating to the estate of John B. Honor, deceased, the effect of the decree being that, under the will of Mrs. John B. Honor, the appellee, Rita Brown Honor Friar, had one-half of the estate left by. Mrs. John B. Honor under her will, and that the expenses of the administration, funeral expenses, etc., and other claims should be paid out of the residuum estate, if sufficient, which the chancellor held was sufficient to pay all legacies, costs of administration, etc., and that these costs should be paid out of the residuum estate rather than out of the half devised to the appellee, and the legacies left to Nell Benton, Maria Honor, and Bridget Sodon, and that if the estate was not sufficient to pay the legacies to the other named legatees, their shares would be abated proportionately.\\nIt is contended here that the share of the estate left to the appellee, Rita Brown Honor Friar, was one-half of the estate after payment of the debts, funeral expenses, etc., and cost of administration, and that these costs should be paid first, before paying to said appellee her half of the.estate. In other words, it is contended that the costs of administration, funeral expenses, and all debts should not be taxed against the residuary estate, nor against the deferred bequests, or bequests made secondary under the will. The rule is to gather the intention, of the testator, if possible, from the entire will, considering all its provisions together.\\nWe think it is clear from the expression in the will, \\\"I direct that the foregoing legacies shall have priority and be given in full\\\" and the direction that if the assets were not enough, that the \\\"legacies hereinafter given\\\" were to be abated proportionately, was to make the residuum liable for the cost, expense, etc. The effect of making the one-half interest of Rita Brown Honor Friar, and the legacies to Nell Benton, Maria Honor, and Bridget Soden preferred, was to cast the burden of the expenses of the administration, etc., upon the other bequests, and the residue of the estate bequeathed to Nell Benton, which distinguishes the case at bar from the case of Fisk v. McNtel, 1 How (Miss.) 535. The rule announced in that case, without a provision in the will changing the effect of it, would apply where there was no general residuum clause provision in the will, but where the will specially provides to the contrary, or does so by necessary implication, or where there is a general residuum recited in the will, or where the estate is left undisposed of, the payment of debts, funeral expenses, etc., would be a charge upon the residuum, and the preferred legatees would have no right to call upon the second legatees to abate their legacies. Legacies may be exonerated from the payment of debts and expenses by a direction in the will changing this rule. Currie & Nailor v. Murphy, 35 Miss. 473. As we view it, there is no conflict in this case and the case of Fisk v. McNiel, supra.\\nIn the case at bar, it is manifest from the will and all its terms that the testator intended that both real and personal property would be subject to the legacies given, but it is also manifest from the proof in the record that the personal property would be sufficient to pay the specific legacies, and the costs of administration, etc.\\nWe are of the opinion that the chancellor did not err in his construction of the will, and it is manifest from the will that the appellee, Rita Brown Honor Friar, was intended to have one-half of the entire estate, undiminished by the payment of debts, costs of administration, etc., and also undiminished by the preferred legacies, but only to be taxed with the costs of administration, etc., in event there were insufficient assets to pay same out of the residuum of the estate and the deferred legacies.\\nThe decree rendered did not dispose of all the questions involved, and it especially reserved the part of the case made by the bill, so, on a remand of the case the court may tax costs in accordance with the views herein expressed, and further deal with the case as may be meet and proper. The judgment will be affirmed and remanded.\\nAffirmed and remanded.\"}" \ No newline at end of file diff --git a/miss/1870241.json b/miss/1870241.json new file mode 100644 index 0000000000000000000000000000000000000000..4390343f64d5e468894db4e3b2a81febfc19f0fb --- /dev/null +++ b/miss/1870241.json @@ -0,0 +1 @@ +"{\"id\": \"1870241\", \"name\": \"Streckfus Steamers, Inc., v. Kiersky, Assessor\", \"name_abbreviation\": \"Streckfus Steamers, Inc. v. Kiersky\", \"decision_date\": \"1935-11-04\", \"docket_number\": \"No. 31761\", \"first_page\": \"125\", \"last_page\": \"147\", \"citations\": \"174 Miss. 125\", \"volume\": \"174\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T22:27:24.925892+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Streckfus Steamers, Inc., v. Kiersky, Assessor.\", \"head_matter\": \"Streckfus Steamers, Inc., v. Kiersky, Assessor.\\n(Division. A.\\nNov. 4, 1935.\\nSuggestion of Error Overruled Jan. 6, 1936.)\\n[163 So. 830.\\nNo. 31761.]\\nBen. Wilkes, of Vicksburg, and Leo J. Sandman, of Louisville, Ky., for appellant.\\nViOllor & Teller and R. M. Kelly, of Vicksburg, and EdW. J. Bogen, of Greenville, for appellee.\", \"word_count\": \"5290\", \"char_count\": \"30694\", \"text\": \"Cook, J.,\\ndelivered the opinion of the court.\\nOn the 31st day of December, 1930, the mayor and aldermen of the city of Vicksburg passed an ordinance creating and levying certain privilege license taxes on specific businesses, trades, callings, and professions carried on in the city for the year 1931 and subsequently years, which included a tax of two hundred dollars for each day, or part thereof, upon each excursion boat taking passeng*ers from the said city and returning thereto; and on January 16, 1933, an ordinance in all respects identical with the aforesaid ordinance, insofar as it affected the liability of appellant for privilege license taxes, was enacted and declared to be in force and effect on and after January 1, 1933.\\nDuring the year 1931, the appellant was operating steamers on the Mississippi river, which were engaged in the business of carrying on pleasure excursions from the various cities along the river. When it advertised intention of running excursions from the Vicksburg wharf on two separate days, the city of Vicksburg demanded, and the appellant paid, under protest, a privilege tax of two hundred dollars for each of the separate days, and thereafter appellant filed suit to recover the sum so paid under protest. A judgment in its favor was rendered in the circuit court of Warren county from which there was an appeal to this court, where the judgment of the circuit court was reversed and a judgment was entered in favor of the city of Vicksburg. The opinion on that appeal is reported in City of Vicksburg v. Streckfus Steamers, 167 Miss. 856, 150 So. 215, and reference is made thereto for a statement of the issues there involved and the points decided.\\nWhile the above-mentioned suit was pending in the circuit court, the appellant, through its attorneys of record in that suit, entered into negotiations with the city authorities in reference to future excursions, and as a result of such negotiations the following letter was folwarded to the said city :\\n\\\"Brunini and Hirsch.\\n\\\"Attorneys at Law\\n\\\"Vicksburg, Miss., April 16th, 1932\\n\\\"Hon. J. C. Hamilton, Mayor, City of Vicksburg, Vicksburg, Miss.\\n\\\"Dear Sir: A suit was instituted by the Streckfus Steamers against the City of Vicksburg for the recovery of the privilege tax of $d0'0.00 paid on May 9th and May 10th, 1931. On the hearing before Judge Thigpen, the issue was decided in favor of the Streckfus Steamers. The City has appealed to the Circuit Court from this adverse ruling.\\n\\\"It is the intention of the Streckfus Steamers to run an excursion from Vicksburg on Saturday April 16th, and Sunday, April 17th, 1932.\\n\\\"In the event the suit now pending on appeal is finally decided against the Streckfus Steamers, then the Streckfus Steamers binds and obligates itself to pay to the City of Vicksburg the privilege tax of $200.00 per day for the two days that it proposes to operate; that is, on April 16th and April 17th, 1932, said payment to be made within thirty days after the present suit is' finally decided.\\n' ' Yours very truly,\\n' ' Streckfus Steamers,\\n\\\"By Verne Streckfus.\\\"\\nThereafter, letters of the same import and in substantially the same language were written covering proposed excursions on May 7 and 8, 1932, May 16 and 17, 1932, September 24, 1933, and October 7 and 8, 1933; the last of these letters being as follows:\\n\\\"Brunini & Hirsch\\n\\\"Attorneys at Law.\\n\\\"Vicksburg, Miss. October. 7th, 1933.\\n\\\"Hon. J. O. Hamilton, Mayor, City of Vicksburg, Vicksburg, Miss.\\n\\\"City of Vicksburg vs. Streckfus Steamers\\n\\\"Dear Sir: You will recall that an opinion has been rendered by the State Supreme Court upholding the right of the City of Vicksburg to tax the Steamers $200.00 per day. Mr. Hirsch is out of the City today, being in'Jackson, and when he left he stated that he would be there the whole of the day.\\n\\\"While the Supreme Court has rendered its decision still we have fifteen days from its rendition to file a suggestion of error, and in addition to that we have the right to appeal the case to' the Supreme Court of the United States. Just what course Mr. Hirsch will adopt the writer does not know, but we would like very much to have the same understanding with you that we had before \\u2014 this time in reference to' the Excursions to' be run tonight and tomorrow night. Of course if Mr. Hirsch determines not to file a suggestion of error and not take an appeal to the Supreme Court of the United States that will end the matter, but we would like to have the same arrangement; that is, in reference to the Excursions tonight and tomorrow night that we had before, with the understanding that when the matter is finally con- eluded the payment will he made if. the final decision is against us.\\n\\\"Yours very truly,\\n\\\"Streckfus Steamers,\\n\\\"By, John N.. Streckfus.\\\"\\nOf the four such letters not quoted herein, one was signed \\\"Streckfus Steamers, by Roy M. Streckfus,\\\" and three were signed, \\\"Streckfus Steamers, by Joseph Streckfus, Manager.\\\"\\nOn each of the several dates named in these letters to the mayor of Vicksburg, the appellant ran pleasure excursions from Vicksburg and returning thereto, and the city made no effort to collect the privilege taxes for any of these operations until after the final conclusion of the above-mentioned suit in this court, when payment of the privilege taxes of two hundred dollars for each day on which excursions had been run, as designated in the aforesaid letters to the mayor, was demanded, and payment of these taxes was refused. The appellant thereupon employed other attorneys, and by a petition in admiralty in the United States District Court it sought to have the said ordinance declared void as to it, and the city of Vicksburg and its official perpetually enjoined from enforcing and collecting the sums alleged to be due and to- become due under said ordinance.\\nThereafter the appellee, Abe Kiersky, assessor and tax collector of the city of Vicksburg, under authority and directions of the mayor and aldermen, instituted this suit in the circuit court of Washington county by an attachment against the appellant as a nonresident corporation; the declaration filed being in four counts based upon the following separate theories:\\n(1) That the agreements of appellant which were embodied in the several letters addressed to the mayor of said city covering the tax and occasions in question, which were relied upon and acted on by the city, were valid, effectual, and binding stipulations to abide by the judgment in the former case between the same parties by payment of said taxes in full, and that since said former or \\\"test\\\" case had been finally determined in favor of appellee, liability was independently and absolutely imposed by virtue of such stipulations.\\n(2) That the decision of this court, as reported in City of Vicksburg v. Streekfus Steamers, 167 Miss. 856, 150' So. 215, is res judicata as to all questions presented by the present suit and imposes and conclusively fixes appellant's liability for the taxes imposed by the ordinance in question.\\n(3) That the business pursued by the appellant is of such nature and kind as is covered and contemplated by the ordinances in question, and that under said ordinances by its course of business liability was independently imposed and fixed.\\nThe appellant thereafter filed its bond and petition for removal of the cause to the United States District Court on the ground that it was one of a civil maritime nature over which the District Court of the United States had original and exclusive jurisdiction, and involved questions controlled by the laws of the United States. Appellee filed exceptions to this petition, alleging as grounds thereof, among others, that the cause was not one of a bivil maritime nature, or one over which the federal court had original jurisdiction, or which involved any federal constitutional question, or which was predicated upon the laws of the United States. The court below sustained these exceptions and denied the petition for removal.\\nThereafter, appellant filed a plea in abatement averring that there was then pending in the United States District Court an action between substantially the same parties in respect to the same facts, and that a determination of the said cause in admiralty would determine the rights of the parties. Appellee demurred to this plea on the ground, among others, that on its face it disclosed that the issues and parties were not substantially the same, and that the pendency of the suit in the United States Court did not in law serve to abate or delay tbe action in tbe state court. This demurrer was sustained.\\nThereupon the appellant filed a plea of the general issue and gave notice thereunder that it would offer evidence to establish the following affirmative defenses: (1) That it was authorized and empowered to conduct its vessels in the coasting trade of the United States as a passenger excursion boat, and that it was carrying on said business on a free, navigable stream of the United States, and for that reason the ordinances in question were void as to it; (2) that the action was in effect a libel in admiralty, and therefore within the exclusive jurisdiction of the federal courts in admiralty; (3) that the l'evenue produced by the operation of appellant's boats was so small, and cost of operation so great, that the tax sought to be imposed by the said ordinances was exorbitant, prohibitive, and destructive of appellant's business to an extent that it amounted to a taking of its property without due process of law; (4) that the ordinance effective January 1, 1931, was not certified by the city clerk and approved by the mayor, as required by section 2642, Code of 1930; (5) that said ordinance, although made immediately effective upon its passage, contained no statement of the reasons of its urgency, as required by section 2642, Code of 1930; (6) that the ordinance dated January 16, 1933, is made effective as of January 1, 1933, and is therefore void as being an ex post facto law; (7) that said ordinance is made effective as of a past date, which is the equal 'of no date, and it contains no emergency statement, as required by section 2642, Code of 1930; (8) 'that the letters and agreements, copies of which were attached to the declaration, were executed under duress, and without consideration, and were therefore not binding on the appellant; and (9) that the business of the appellant was not conducted within the corporate limits of the city of Vicksburg, but was conducted on a navigable stream, and was therefore not subject to the tax sought to be collected.\\nTo this notice there were attached certified copies of certificates of inspection and enrollment and license granted to the appellant by the clerk of the United States Custom Service at St. Louis, Missouri, and a certified copy of the ordinance of the city of Vicksburg effective January 1, 1931.\\nAppellee offered in evidence a certified copy of the proceedings in the former appeal to this court, wherein the opinion of the court is reported in City of Vicksburg v. Streckfus Steamers, 167 Miss. 856, 150' So. 215, and also the testimony of the mayor of Vicksburg, for the purpose of establishing the agreement had by the city with the attorneys and representatives of appellant to abide by the final result of said former cause as fixing the liability of appellant for the tax on all future excursions. Upon identification by the mayor, the several letters which were attached to the declaration and which contained the purported agreements between the parties were, over the objection of appellant, offered in evidence. Through the mayor, appellee also offered evidence as to the number and kind of the several excursions conducted by appellant from and returning to Vicksburg wharf after the execution of the said purported agreements.\\nUpon identification by the city clerk, appellee offered in evidence the minutes of the mayor and aldermen showing the method of adoption of the! ordinance of January I, 1931, and the ordinance itself as spread at large on such minutes, and also a certified copy of the ordinance. There was also introduced the city ordinance book in which there was enrolled an exact duplicate of said ordinance as the same appears on the minutes of the mayor and aldermen, but neither of these copies of the ordinance showed on its face that it had been approved by the mayor and certified by the clerk. The ordinance of January 16, 1933, which was attempted to be made effective as of January 1, 1933, as the same appeared at large on the minute book, was also offered in evidence as was also the city ordinance book containing the said ordinance. This ordinance as it appears in the ordinance book is signed by the city clerk and approved by the mayor. The city clerk testified that the original of the ordinance first above referred to was filed as a part of the Supreme Court record in the former appeal, but was lost, and, over the objection of appellant, she testified that it was signed by the clerk and approved by the mayor. The appellant offered, no- evidence whatever.\\nThe first assignment of error presented by counsel for appellant is that the court erred in denying its petition to remove the cause to- the federal court; the contention being that the cause was removable on the face of the record, including the petition for removal, which averred that there was involved a matter over which the United States District Courts have original and exclusive jurisdiction, that is, a civil cause in admiralty involving a constitutional right and question. It is well settled that upon the filing of the petition for removal, supported by the necessary security, there is presented to the state court a question of law; that is, whether, admitting the facts stated in the petition for removal to be true, it appears on the face of the record, which includes the petition and all the pleadings prior thereto, that the petitioner was entitled to remove the suit, and that question the state court has a right to decide for itself. Burlington, C. R. & N. R. Co. v. Dunn, 122 U. S. 513, 7 S. Ct. 1262, 30 L. Ed. 1159; Crehore v. Ohio & M. R. Co., 131 U. S. 240, 9 S. Ct. 692, 33 L. Ed. 144; Hercules Powder Co. v. Nix, 144 Miss. 113, 109 So. 862; 54 C. J. 331-333. In 23 R. C. L. 774, this rule is announced in the following language : The filing of a petition and bond presents to the state court a pure question of law, and that is whether, admitting the facts stated in the petition for removal to-be true, it appears on the face of the record that the petitioner is entitled to a removal of the suit. If, upon the face of the record, including the petition for removal, a suit does not appear to be removable, then the state court is not bound to surrender its jurisdiction, and may proceed as if no application for removal had been made. That question the state court has the right to decide for itself. If it errs in keeping the case, and the highest court of the state in which a decision can be had affirms the ruling, the federal supreme court has jurisdiction to- correct the error, considering, for that purpose, only the part of the record which ends with the petition for removal.\\\"\\nSection 41 (3), title 28, U. S. C. A., provides, among other things, that the United States District Courts shall have original jurisdiction \\\"of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it.\\\" In the case at bar, appellee's cause of action is based solely upon the laws of this state, and no right whatever is asserted under the Constitution and laws of the United States. The declaration states a pure common-law action wherein the amount in controversy is less than three thousand dollars. This common-law action is not one cognizable in admiralty, but if the action should be construed as maritime in its nature, still the remedy at common law was adequate, and under said section 41 (3), title 28 U. S. C. A., the appellee had the right to elect \\\"whether to ask relief in a state court or in the district court; and the defendant may not object to the proceeding in the state court on the ground that the cause of action is in its nature maritime, so long as the action is in personam. \\\"1 R. C. L. 408. We conclude, therefore, that the court committed no error in declining to remove the cause to the federal court.\\nAppellant next contends that the court erred in sustaining the demurrer to its plea in abatement. If it be conceded that the parties to the suit pending in the federal court and in the case at bar were the same, it is clear that the issues and relief sought were not the same, and that appellee's remedy, if any, in the federal court was not as effective as that afforded by the suit in the state court, and for that reason the demurrer was proper ly sustained. Carbolineum Wood Preserving & Manufacturing Co. v. Meyer, 76 Miss. 586, 25 So. 297, 298. Furthermore, the great weight of authority is to the effect that the pendency of an action in a federal court is not ground for abatement of a like suit in a state court. This rule is stated in 1 C. J. 87, 88, in the following language: \\\"It is now well settled as a general rule that the pendency of a prior suit in a state court is not ground for abatement of a subsequent suit in a federal court, although the prior suit is between the same parties and for the same cause; nor is the pendency of a suit in a federal court ground for abatement of a like suit in a state court. And this rule applies, according to the weight of authority, even though the courts are in the same state and the state court is within the district covered by the' jurisdiction of the federal court, since the two courts, although they may not be foreign to each other, belong to different jurisdictions in such sense that the doctrine of the pendency of a prior suit as ground for abatement is not applicable. It is clear of course that the pendency of an action in a federal or state court is no ground for abatement of a prior suit in the other. ' '\\nAppellant next contends that the court below erred in admitting in evidence the transcript of the record of the former appeal, hereinbefore referred to. This record was offered in support of the second count of the declaration, which was based upon the theory that the decision in that case, as reported in City of Vicksburg v. Streckfus Steamers, 167 Miss. 856, 150 So. 215, was res judicata of all issues and questions presented in the case at bar, and conclusively fixed appellant's liability for the taxes sued for. For the purpose for which it was offered this record was competent, and while some parts thereof may be of no probative value, in view of the issues presented in the case now before us, the appellant was not prejudiced thereby, since- we do not rest this decision upon the doctrine of res judicata upon all issues raised by the pleadings in this cause. The former decision is clearly decisive of any question raised, or that might be raised, as to the validity of the ordinances in question, with specific reference to the power to enact such' ordinances reposed in the city of Vicksburg under its special charter; as to the reasonableness of the classification for purposes of taxation, and as to whether or not in conducting these excursions the appellant was engaged in interstate commerce; and no issue upon these points seems to be presented by the pleadings.\\nAppellant next contends that the ordinances under which the taxes were sought to be enrolled were void, and particularly void as to appellant, for the reason that its boats were duly licensed and enrolled to operate passenger excursions on the- navigable streams of the United States, and particularly the Mississippi river. Appellant's argument on this point seems to proceed upon the theory that the navigation of the public waters of the United States is subject to the regulation of Congress, and that a license granted under the laws and by the authority of the United States to a boat to carry on coasting trade entitles it to navigate all such waters without restraint by state law, although not engaged in interstate commerce in its ordinary conception; or, in other words, that \\\"navigation is commerce and the business of navigation is commerce as used in the Constitution according to the interpretation of the United States Supreme Court,\\\" and since \\\"commerce includes navigation it is not necessary for the vessel to- be engaged in interstate transportation to come within the commerce clause of the Constitution.\\\"\\nIt is true that in construing the commerce clause of the Constitution (art. 1, sec. 8, clause 3) the Supreme Court of the United States has held that the power to regulate commerce includes navigation as well as traffic in its ordinary signification, and that a license granted-under the laws and by the authority of the United States to a vessel to carry on the coasting trade' entitles such vessel to navigate the public waters of the United States without interference by state law. Brown v. Maryland, 12 Wheat. 419, 6 L. Ed. 678; Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23. But the appellant is not in a position to avail of the doctrine announced in these and other decisions of the Supreme Court of the United States to the same effect. Section 251, title 46, U. S. C. A., defines what vessels shall be considered vessels of the United States in the following language: \\\"Vessels of twenty tons and upward, enrolled in pursuance of this chapter, and having a license in force, or vessels of less than twenty tons, which, although not enrolled, have a license in force, as required by this chapter, and no others, shall be deemed vessels of the United States entitled to the privileges of vessels employed in the coasting trade or fisheries.\\\"\\nIn Conway v. Taylor, 1 Black (66 U. S.) 603, 17 L. Ed. 191, it was said, in effect, that the enrollment of a vessel ascertained her ownership and gave her national character, while her license gave her authority to carry on the coasting trade; and together they entitled the owner to raise questions under the laws of the United States and particularly the commerce clause- of the Constitution. There is no proof whatever that the appellant's boats were enrolled or licensed to engage in the coasting trade. In a notice under its plea of the general issue appellant set up that.it would offer proof to show that it was authorized and empowered to conduct its vessels in the coasting trade of the United States as passenger excursion boats, and with this notice, as exhibit thereto, it filed purported certificates of inspection and certified copies of consolidated certificates of enrollment and license for the vessels in question, but these purported certificates and licenses were not introduced in evidence. The appellant offered no evidence whatever, and upon the record-before us the appellant is in the same situation as one operating vessels which were neither enrolled nor licensed, and therefore is not-entitled- to raise any question as to interference with the power- of 'Congress over navigation. ' f.....\\nAppellant next contends that the ordinances under which liability was sought to- be established are void for various defects and omissions in the enactment thereof; the first objection to the ordinance of December 31, 1930, being that the record fails to- show that it was approved by the mayor of the city. In support of this objection appellant cites the original section 10 of the special charter under which the city of Vicksburg operates, which provides, in part, as follows: \\\"Each ordinance shall be submitted by the City Clerk to the Mayor for his approval or disapproval, on the day following its adoption by the Aldermen, and the Mayor, if he shall approve the same, shall sign it approved by him, and the ordinance shall become a law as it may provide. If he disapprove the ordinance he shall, within three days after the Clerk shall have delivered it to him, return the same to the Clerk, with his disapproval and reasons therefor, in writing, addressed to the Board of Mayor and Aldermen. If the Mayor shall fail to return the -ordinance to the Clerk within the time aforesaid, with his action thereon, in writing, the ordinance shall become- a law according to its provisions, without the action of the mayor. The Clerk shall endorse on each ordinance the date of delivery to the Mayor, and also the time of its return to him by the Mayor, and shall lay before- the Board of Mayor and Aldermen at their next meeting any vetoed ordinance, with the accompanying communication from the- Mayor. ' '\\nAs shown by the records on file in the office of the secretary of state, by an amendment approved by the governor on August 14, 1912, section 10- of the original charter of said city was changed to read as follows:\\n\\\"There shall be a Mayor and two Aldermen, each of whom shall be elected from the City at large by the qualified voters thereof, and shall serve four years and until the election and qualification of their successors.\\n\\\"The said Mayor and Aldermen shall respectively exercise and perform all the powers and duties belonging to and exercised- and performed by the Mayor and Alder men at the date of the adoption of this amendment, except as hereinafter expressly limited. The Mayor shall have no veto power, and shall be entitled to vote on all questions in the same manner, and with the same effect as the Aldermen. No appropriation of public funds shall be made to any private use or advantage as distinguished from the interest of the corporation, except by unanimous vote of the Mayor and Aldermen and not in any event for more than Two Hundred and Fifty ($250.00') dollars for any one purpose.\\n\\\"Two Aldermen, or the Mayor and one Alderman, shall constitute a quorum for the transaction of business at any meeting of the Board of Mayor and Aldermen, and any ordinance, resolution or corporate power whatsoever which the said Board of Mayor and Aldermen shall have the power to enact, adopt or exercise, may be enacted, adopted or exercised by the vote of two Aldermen or of the Mayor and one Alderman, regardless of any provision in the said Charter requiring the vote of any specified number of Aldermen, except as to appropriations for non-corporate purposes as hereinbefore provided. The Mayor, or any Aldermen, shall have the right at any time, to call a special meeting of the Board of Mayor and Aldermen.\\\"\\nIt will be noted that by the above-quoted amendment of section 10 of the charter of the city of Vicksburg, the mayor is divested of all veto power, and the board of mayor and aldermen are empowered to adopt ordinances by the vote of two aldermen, or of the mayor and one alderman. There is no requirement that any ordinance shall be approved by the mayor before it shall become effective, and since the charter of the city of Vicksburg makes specific provision for the adoption of ordinances without the formal approval of the mayor, section 2642, Code of 1930, providing for the adoption of ordinances by municipalities operating under the common statutory charter for municipalities, chapter 50, Code of 1930, is not applicable. Consequently, formal approval by the mayor of the ordinance, or the ordinance dated January 16, 1933, was unnecessary. There was offered in evidence certified copies of these ordinances, and also the city ordinance hook in which they were entered, which by virtue of section 2547, Oode of 1930, was prima facie evidence of the existence of the ordinances and that the same were adopted as provided by law. Therefore, it appears that the ordinances were sufficiently proved, and that they were a valid exercise of power conferred by the charter of the city, and were legally adopted.\\nThe ordinance dated December 31, 1930, was made effective on January 1, 1931, while the ordinance of January 16, 1933, provided that it should be effective as of January 1, 1933, and it is argued- that the latter ordinance is void for the reason that it is an attempt to enact an ex post facto law. Section 2542, Code of 1930, provides that ordinances shall not be enforced, unless for cause the contrary be ordered, for one month after their passage. The only effect of the failure of the ordinance of December 31, 1930, to assign cause for the immediate enforcement thereof was to cause it to become effective and enforceable not earlier than one month after its passage. Of course, the mayor and aldermen had no-power to make the ordinance -of January 16, 1933, effective prior to the date of its passage, but the attempt to do so did not render the ordinance void after its passage by proper vote and act of the mayor and aldermen; it was merely ineffective and unenforceable until the lapse of one month after its passage, and since the appellant incurred no liability thereunder, and no attempt was made to- enforce it for any operations of appellant carried on prior to the time the ordinance became effective, one month after its passage, the appellant cannot complain of the abortive effort to- make it effective at an earlier date.\\nIt is next argued that the tax imposed was so exorbitant as to- be prohibitive and destructive of appellant's business. All taxes are presumed to be reasonable unless proved to be unreasonable, and in its notice of affirmative defenses to be proved, tbe appellant set up tbe unreasonableness of the ordinances, but offered no evidence whatever to substantiate the averment, and consequently that question is not here presented by the evidence.\\nAs said by counsel for the appellant near the conclusion of their brief, the record \\\"boils itself down to the question of whether or not the two ordinances upon which this suit is predicated are valid ordinances.\\\" We think these ordinances are valid, and in reaching the conclusion that, on this record, appellant is liable for the taxes sued for, we have proceeded without consideration of the agreements embodied in the several letters signed with the name of the appellant corporation and addressed to the mayor of the city, and therefore, if there were errors in the admission of these letters, as to which we express no opinion, such errors were harmless. The judgment of the court below is affirmed.\\nAffirmed.\"}" \ No newline at end of file diff --git a/miss/1885602.json b/miss/1885602.json new file mode 100644 index 0000000000000000000000000000000000000000..a60a9b7e30208c7d46007c58a7b963d94fe6aede --- /dev/null +++ b/miss/1885602.json @@ -0,0 +1 @@ +"{\"id\": \"1885602\", \"name\": \"Moore v. Illinois Cent. R. Co.\", \"name_abbreviation\": \"Moore v. Illinois Cent. R.\", \"decision_date\": \"1937-11-08\", \"docket_number\": \"No. 32860\", \"first_page\": \"276\", \"last_page\": \"291\", \"citations\": \"180 Miss. 276\", \"volume\": \"180\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:02:27.903707+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Moore v. Illinois Cent. R. Co.\", \"head_matter\": \"Moore v. Illinois Cent. R. Co.\\n(Division A.\\nNov. 8, 1937.\\nSuggestion of Error Overruled Jan. 3, 1938.)\\n[176 So. 593.\\nNo. 32860.]\\nChalmers Potter, of Jackson, for appellant.\\nMay & Byrd, of Jackson, and Burch, Minor & McKay, of Memphis, Tenn., for appellee.\\nArgued orally by Chalmers Potter, for appellant, and by J. L. Byrd, for appellee.\", \"word_count\": \"2634\", \"char_count\": \"15469\", \"text\": \"Smith, C. J.,\\ndelivered the opinion of the court.\\nThe appellant sued the appellee on an alleged_ breach of a contract of employment. The appellee filed ' six special pleas. Demurrers by the appellant to the first four pleas were overruled. The appellant replied to the fifth plea and a demurrer to his replication was sustained, as was also his demurrer to the appellee's sixth plea. The appellant declined to plead further, and judgment final against him was rendered.\\nThe declaration alleges, in substance, that on and long-prior to February 15, 1933, the plaintiff was a member of the Brotherhood of Railroad Trainmen, with which the defendant had entered into a contract which provided the rules, rates of pay, etc., for trainmen employed by it. That the plaintiff had been employed by the defendant as a trainman since June 2, 1926, and on November 13, 1926, the defendant, in accordance with its contract with the Brotherhood of Railroad Trainmen, published a seniority roster for its trainmen, giving the plaintiff No. 52 thereon. Under the' provisions of the contract, the trainmen were given work by the defendant according to their seniority on this roster, and, among other things, the contract provided that no employee should be discharged by the defendant without just cause. That although the plaintiff had rendered the defendant faithful and efficient service, and was ready, willing, and able to so continue, he was arbitrarily discharged by the defendant on F'ebruary 15, 1933, since which he has been unable to obtain employment, to the damages of the plaintiff in the sum of $3,000. The Brotherhood of Railroad Trainmen's contract was filed as an exhibit to the declaration, and is practically identical with the one under consideration in Moore v. Yazoo & M. V. R. Co., 176 Miss. 65, 166 So. 395, and McGlohn v. v. Gnlf & S. I. R. R. (Miss.), 174 So. 250.\\nThe first three of the appellee's pleas allege, in substance : The first plea, that the employment of the plaintiff was not for a- definite time, and was terminable at will; the second plea, that the contract sued' on is unilateral, there being no agreement on the part of the plaintiff to perform any services whatever for the defendant, and was without consideration; the third plea, that the contract sued on was not one .of hiring between the plaintiff and the defendant, but was merely a schedule of wages governing yardmen and switchmen, and that by it no switchman was employed for any specific period, no switchman agreed to perform any service for the defendant for any specified time, and, therefore furnishes no basis for a recovery by the plaintiff.\\nThese pleas seem to be, in fact, demurrers, but aside from that, the demurrers thereto should have been sustained under McGlohn v. Gulf & S. I. R. R., supra, wherein the court held that a contract by a labor union with an employer, similar to the one here, was: (1) Yalid-; (2) that a member of the labor union which made the contract could sue thereon, although he had not, himself, agreed to work for the employer for any definite time; and (3) could not be discharged by the employer at will. That case was decided after the trial in the court below of the case now under consideration.\\nThe fourth plea set forth a provision of the contract sued on, reading as follows: \\\"(d) Yardmen or switch-tenders taken out of the service are censured for cause, shall be notified by the Company of the reason therefor, and shall be given a hearing within five days after being taken out of the service, if demanded, and if held longer shall be paid for all time so held at their regular rate of pay. Yardmen or switchtenders shall have the right to be present and to have an employee of their choice at hearings and investigations, to hear the testimony, and ask questions which will bring out facts pertinent to the case. They shall also have the right to bring such witnesses as they desire to give testimony, and may appeal to higher officers of the Company in case the decision is unsatisfactory. Such decision shall be made known within three days at New Orleans and at other points ten days after the hearing, or yardmen or switchtenders shall be paid for all time lost after the expiration of three days at New Orleans and ten days at other points. In case the suspension or dismissal or censure is found to be unjust, yardmen or switchtenders shall be reinstated and paid for all time lost.\\\" It then alleges, in substance, that when the appellant was discharged on February 15, 1933, he was notified thereof, in writing, by the defendant's superintendent, whereupon the plaintiff notified the superintendent in writing that he desired a hearing on his discharge, which request was complied with by the superintendent. While the plea does not so allege, it is clear therefrom that the superintendent declined to reinstate the plaintiff, whereupon he gave written notice to the defendant that he desired to appeal from this ruling of the superintendent. The defendant, through its proper officers, advised the plaintiff that a hearing on this appeal would be accorded him on a named date, but the plaintiff failed to appear and abandoned his appeal, because of which he is without the right to maintain this suit.\\nThe appellant is not seeking to be restored to the appellee ]s employment, nor does his complaint involve any question of discipline or policy arising under the contract. It includes only his right, vel non, to damages, because of his alleged discharge by the appellee, for the determination of which the courts are open to him without his having exercised his right to attempt to gain his reinstatement in the appellee's employ by appealing from its superintendent to his superior officers. Independent Order of Sons & Daughters of Jacob v. Wilkes, 98 Miss. 179, 53 So. 493, 52 L. R. A. (N. S.) 817; Eminent Household of Columbian Woodmen v. Ramsey, 118 Miss. 454, 79 So. 351, and Eminent Household of Columbian Woodmen v. Payne, 18 Ala. App. 23, 88 So. 454. The demurrer to this plea should have been sustained.\\nThe fifth plea is one of res judicata, and alleges, in substance, that on October 15, 1932, the plaintiff sued the defendant in the First district of Hinds county, in a cause appearing there as No. 8232, and on February 23, 1933, filed an amended declaration therein alleging that he had been given a lower place on the defendant's seniority roster, resulting in his being, in effect, discharged, by reason of which he had been damaged. After the filing of this amended declaration, the defendant filed the following third special plea: \\\"Now comes the defendant, Illinois Central Railroad Company, by its attorneys, and for a further and special plea to the declaration herein, says that in any event, the plaintiff is not entitled to recover pay for any time after the 15th day of February, 1933, because it says that on said 15th day of February, 1933, it notified the said plaintiff, Earl Moore, in writing, that his services were no longer desired, and that his employment was at an end, and his said employment with this defendant did end on said date and any right the said Moore might have had to work for the defendant ceased on said date.\\\" To this plea, the appellant replied as follows: \\\"And now comes the plaintiff and for replication to the third special plea of the Illinois Central Railroad Company heretofore filed herein says that nothing therein contained should defeat or prevent the maintenance of plaintiff's cause of action, because it is alleged in the declaration and in. the exhibits annexed thereto under Article 17 of said Exhibit, the following, 'No switchman will be discharged or suspended without just cause,' and said special plea does not allege that the said defendant, Illinois Central Railroad, had any sufficient cause of firing the. said plaintiff who was a switchman and the said plaintiff does hereby allege and aver that the only reason that he was fired was because that he had filed this lawsuit seeking a re dress of his wrongs in the defendants, and plaintiff avers that the tiling of a lawsuit to compel the courts to perform their contracts is not sufficient cause within the meaning of said contract of employment. All of which the defendant is ready to verify.\\\" Issue on this replication was joined by consent, and the cause proceeded to trial resulting in a verdict for the defendant, and a judgment that the plaintiff recover nothing.\\nThe replication of the plaintiff to this plea of res judicata sets forth, among other things, that: \\\"It was alleged in said declaration, in suit No. '8232, and the following allegation constituted the gist of plaintiff's action herein, that the said defendants therein had breached a contract between the Switchman's Union of North America, of which plaintiff was, at the time he went to work for the Alabama & Vicksburg Railway Company, a member, in that he had been given a lower place on the seniority roster of both defendants in their Jackson yards than the place to which he was entitled under the contract, yet plaintiff avers that the basis of his cause of action in said cause, to-wit, Nio. 8232, was breach of the contract originally entered into between the said Alabama & Vicksburg Railway Company and the Switchman's Union of North America, for a failure of this defendant and the Yazoo and Mississippi Valley Railroad Company to give him the place upon the seniority roster' to which he was entitled, the contract between the Switchman's Union of North America, and the Alabama & Vicksburg Railway Company having 'been expressly assumed as alleged in the pleadings in said cause by the defendants therein, and all other matters alleged, either in the declaration or in any subsequent pleadings filed by either party thereto, did not form the basis of plaintiff's cause of action therein, but merely t\\u00f3 show and explain the extent of damages suffered by said plaintiff, or any attempt by the defendants to limit said damages. That the cause of action between the Illinois Central Railroad Company and this plaintiff in said cause No. 8232, is in no way identical with the cause of action here sued on, because the cause of action here sued on is based not upon the Switchman's Union contract, but a contract between this defendant and the Brotherhood of Railroad Trainmen. The basis of this suit is not a failure to give plaintiff a place upon the seniority roster to which he conceived he was entitled, but is a suit for his wrongful discharge under a contract of hire. Plaintiff further alleges that said plea constitutes no defense because cause No. 8232 was decided by this court and affirmed by the Supreme Court [Moore v. Yazoo & M. V. R. Co., 176 Miss. 65, 166 So. 395] upon the grounds that the contract therein sued on provided that within thirty days after the promulgation of the seniority list, the seniority list therein sued on having been promulgated in.November, 1928, that any person not being satisfied with the number given him thereon should, within thirty days after the promulgation of said list, file a written protest; that this the plaintiff in cause No. 8232 failed to do personally within the time required by the contract between the Switchman's Union of North America and the Alabama & Vicksburg Railway Company, and for that reason a directed verdict was rendered against said plaintiff, which was affirmed by the Supreme Court of the State of Mississippi, a copy of the opinion of the Circuit Court' and the opinion of the Supreme Court both being attached hereto marked Exhibits 'B' and 'C' respectively, and prayed to be considered a part hereof as fully and completely as if copied herein, and the issue herein involved has never been decided upon its merits either by this court or any other court. All of which the plaintiff is ready to verify.\\\" The declaration in the former suit, filed as an exhibit to this replication, is in accord therewith.\\nIt appears from the appellee's fifth plea that this discharge of the appellant was pleaded by it in the former suit, not in bar of the action, but only in bar of the right of the appellant \\\"to recover pay for any time after the 15th day of February, 1933,\\\" the date of his discharge.\\nThe appellee says that the wrong-fulness, vel non, of the appellant's discharge by it on February 15, 1933, was one of the questions presented and litigated in -the former suit, and was decided by the verdict and judgment there rendered.\\nThe appellant admits that this question was presented in the former suit by the appellee's plea, but says that it did not and could not have entered into the verdict and judgment rendered; and, further, that the evidence necessary to support his there cause of action differed, in material aspects, from that necessary to support his cause of action here sued on.\\nIt appears from the replication to this plea of res judicata, and from the opinions of the trial and the Supreme Court, to which both the appellant and the appellee, in their pleadings, refer, that the trial court directed the jury to return a verdict for the defendant, but, in so doing, did not and could not have considered and determined the wrong-fulness, vel non, of the appellant'.s discharge by the appellee on February 15, 1933; and, further, that the trial court directed the jury's verdict only on the ground that the appellant had no cause of action because of his having been given the wrong number on the appellee's roster of workmen, and therefore could recover nothing. Had a recovery been allowed for the time intervening between the publication of the appellee's roster and the appellant's discharge on February 15, 1933, a different question would be here presented. The judgment in the former suit is not res judicata here.\\nWe have left out of view the fact that the appellant here sues on a contract made with the appellee by the Brotherhood of Railroad Trainmen, and in the former ' suit on a contract made with appellee by the Switch-man's Union of North America, the provisions of which are similar.\\nThe appellant's demurrers to the first four pleas should have been sustained, and the appellee's demurrer to the appellant's replication to the fifth plea should have been overruled.\\nThe appellee's sixth plea is to the effect that the appellant's cause \\u00f3f action is barred by section 2299, Code of 1930, the 3-year statute of limitations, for the reason that \\\"the contract of employment between the plaintiff and this defendant was verbal, and the alleged breach of the contract occurred on February 15th, 1933, more than three years before the appellant's suit was begun.\\\"\\nThe appellant's suit is not on a verbal contract between him and the appellee, but on a written contract made with the appellee, for appellant's benefit, by the Brotherhood of Railroad Trainmen; consequently, section 2299, Code of 1930, has no application, and the time within which the appellant could sue is six years under section 2292, Code of 1930. The demurrer to this plea, therefore, was properly sustained. This question was presented by a cross-appeal by the appellee.\\nReversed and remanded.\"}" \ No newline at end of file diff --git a/miss/1905478.json b/miss/1905478.json new file mode 100644 index 0000000000000000000000000000000000000000..f896dd0ed963fbb35d996365cc6851e58205ed3e --- /dev/null +++ b/miss/1905478.json @@ -0,0 +1 @@ +"{\"id\": \"1905478\", \"name\": \"Hodges v. State\", \"name_abbreviation\": \"Hodges v. State\", \"decision_date\": \"1942-02-09\", \"docket_number\": \"No. 34747\", \"first_page\": \"322\", \"last_page\": \"326\", \"citations\": \"192 Miss. 322\", \"volume\": \"192\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T20:30:47.484380+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hodges v. State.\", \"head_matter\": \"Hodges v. State.\\n(In Banc.\\nFeb. 9, 1942.)\\n[6 So. (2d) 123.\\nNo. 34747.]\\nP. P. Lindholm, of Lexington, for appellant.\\nGreek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee.\", \"word_count\": \"716\", \"char_count\": \"4151\", \"text\": \"McGehee, J.,\\ndelivered the opinion of the court.\\nThe appellant* Beatrice Hodges, was tried for the alleged murder of Dave Wright, and convicted of manslaughter. On appeal she assigns as error, first, the refusal of the court below to grant a peremptory instruction in her f\\u00e1vor; second, the giving of certain instructions on behalf of the state; and, third, the overruling of a motion for a new trial, on the ground that the verdict of the jury was contrary to the overwhelming weight of the evidence.\\nThe rule announced in the case of Weathersby v. State, 165 Miss. 207, 147 So. 481, and in other cases to the same effect, is invoked in support of the contention that the appellant was entitled to the requested peremptory instruction. No other witness saw the accused inflict the knife wound which caused the death of Dave Wright. He stated, while en route to the hospital, that he did not know who cut him. The appellant later admitted to the sheriff that she did the cutting at a time when Dave Wright was trying to impose his attentions upon her, over her protest and against her will, in such manner as to commit a statutory offense against her person. He was in an intoxicated and drunken condition when visited by a local physician at the hospital shortly after being wounded. Assuming that the appellant's version as to the necessity for using her knife in the lawful defense of her person was a reasonable account of what occurred, we are of the opinion that in view of other circumstances disclosed by the testimony on behalf of the state it was a question for the jury as to whether her story was substantially contradicted in material particulars by any credible witness or witnesses for the state, or by any physical facts and matters of common knowledge.\\nWe deem it unnecessary to set forth in detail at this time all the facts and circumstances testified to, and also think it improper to comment upon any reasonable inference to be drawn therefrom, either as supporting or contradicting\\\" the defense made, upon which we base this conclusion, for the reason that we have determined that the case should be reversed and remanded for a new trial, both on the ground that the evidence most strongly tends to support the appellant's version of what occurred, and because the instructions granted for the state seem to have presented for the consideration of the jury the single theory as to whether or not the appellant hilled her alleged assaulter in order to prevent him from killing her, or doing her some great bodily harm in the sense of danger to her life, when there was no issue of self-defense plead or presented by the evidence within that meaning of the term, the sole defense made by tbe appellant being interposed under subsection (f) of section 988, Code 1930, declaring that the killing of a human being shall be justifiable, \\\"When committed in the lawful defense of one's own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished.\\\" In other words, if the appellant had reasonable grounds to apprehend a design on the part of Dave Wright to commit a felony against her person, or to do her some great personal injury, and that there was imminent danger of such design being carried out, the homicide was justifiable; whereas, the instructions for the state seem to require that the jury should believe that the appellant entertained a reasonable apprehension that he intended to take her life, or to do her great bodily harm, in the sense of endangering her life, before the jury would be warranted in acquiting her, entirely leaving out of consideration the right to protect her person against the commission of the threatened felony testified to. Staten v. State, 30 Miss. 619; McNeal v. State, 115 Miss. 678, 76 So. 625.\\nReversed and remanded.\"}" \ No newline at end of file diff --git a/miss/1931277.json b/miss/1931277.json new file mode 100644 index 0000000000000000000000000000000000000000..8910da9bf3cb41b49cc002f112e2e601109a5c4a --- /dev/null +++ b/miss/1931277.json @@ -0,0 +1 @@ +"{\"id\": \"1931277\", \"name\": \"Miller v. State\", \"name_abbreviation\": \"Miller v. State\", \"decision_date\": \"1945-05-14\", \"docket_number\": \"No. 35858\", \"first_page\": \"277\", \"last_page\": \"283\", \"citations\": \"198 Miss. 277\", \"volume\": \"198\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:39:40.561883+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Miller v. State.\", \"head_matter\": \"Miller v. State.\\n(In Banc.\\nMay 14, 1945.)\\n[22 So. (2d) 164.\\nNo. 35858.]\\nL. G-. North, of Belzoni, for appellant.\\nGreek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.\", \"word_count\": \"1119\", \"char_count\": \"6204\", \"text\": \"Roberds, J.,\\ndelivered the opinion of the court.\\nAppellant was convicted of burglary and grand larceny. On this appeal he makes the contention, among others, that the evidence purporting to connect him with this crime is so vague, indefinite, uncertain and unreliable that it does not justify his conviction, and his request for a peremptory instruction should have been granted; but, if mistaken in this, that the verdict is against the great weight of the believable, creditable evidence, and the case should be reversed and remanded for trial by another jury.\\nThe place burglarized was a store in Inverness, Mississippi, and the property stolen consisted of two radios. One Mack King and Henry Lindsey had already been convicted of the crime, and Lindsey had served his term in the state penitentiary therefor. King was also sentenced to the state penitentiary, but it is not shown definitely whether he had already served his term when the trial was had. He did not testify, and it is not shown whether he was available, nor why he was not used as a witness.\\nThe state relies for conviction on the testimony of Henry Lindsey, and on flight of appellant. The officers found the radios, with much other stolen property, at the home of Lindsey. His testimony purports to connect appellant Miller with the crime at three points \\u2014 first, in the agreement to commit it; second, the commission itself; and, third, delivery of the radios to Lindsey's home.\\nOn the first point he testified that he and King and Miller were together, and that King said they \\\"would get a couple of radios\\\"; that it was agreed the witness would have one, and he supposed King would have the other; that when he and King were talking Miller was \\\"Standing off.\\\"\\n\\\"Q. Could he hear Mack talking? A. No, sir, he couldn't exactly hear him.\\n\\\"Q. Where was it Sam came up while you and Mack were talking?' A. He never did get close to us at all.\\n\\\"Ql. How close did he get? A. Close as from here to that gentlemen there.\\n\\\"Q. What was it he said if anything? A. He didn't say nothing. Me and Mack was talking.\\n\\\"Qi. Sam was standing there? A. Yes, sir;\\n\\u00a3\\u00a3Q. And you and Mack were talking? A. Yes, sir. '\\nHe then said Mack told him to go ahead to the store, and Mack and Sam (appellant) would come later, and that when he left Mack and Sam were \\\"standing there.\\\"\\nDescribing the happenings at the store, he says he went on ahead, and Mack told him to stand and watch; that they were then near the front' of the building; that he watched in an alley beside the building; that he did not see any one go in the building, or come out; and did not, of course, see what was stolen; and that he never saw or heard anything of Sam on that occasion. It might be explained that the building was entered by prizing open a rear door.\\nOn the third point he says that about a week after the burglary some one drove up to his home in an automobile at night, and called out, \\\"I got a pig and I want you to keep that.\\\" He first said that it was the voice of Sam, but later said it sounded like Sam's voice; and when asked, \\\"You couldn't swear it was?\\\" said, \\\"No, sir.''' Presumably Mack delivered the radios to him, although that is not clear. But he does say definitely he never saw Sam on that occasion, and the only identification of him was the testimony regarding the voice, above set out. Boiled down, his testimony is that he never saw Sam from the time of the first conversation with Mack, when Sam \\\"was standing off,\\\" until the trial took place over three years later. In view of the fact that the witness is a confessed accomplice in the crime, and that the testimony of a confederate should be received and weighed with care and caution, coupled with the vague, uncertain and indefinite character of the evidence given by him, it must be admitted that the state's case, based upon that evidence, is extremely weak; and but for the evidence of flight, as hereinafter set out, a majority of the Court is of opinion that appellant would be entitled to be discharged.'\\nIt is shown that appellant, about a week after commission of the crime, fled the state, and when apprehended in another state, resisted extradition; that while the extradition proceedings were pending, he was inducted into the army, and later, when on furlough at his home near Inverness, he was arrested and put to trial. He testified that his reasons for fleeing were that when in Inverness a few days after the event, he heard that the crime had been committed, and that King and Lindsey had been ar rested and severely whipped because of it; and when he reached his home, some two miles in the country, that night, his wife told him the officers had been there looking for him, and he was afraid he, also, would be whipped; and that he did not flee because he had any part in the crime. This evidence was competent, and the reason for his flight was a question for the jury.\\nGiving full effect to all of the evidence, we think it is sufficient to withstand the request for a peremptory instruction, but, since the accused is presumed innocent of the crime, and his guilt must be shown by the evidence beyond every reasonable doubt, our sense of duty and responsibility impels us, in view of the unsatisfactory condition of this proof, to remand the case so that another jury can pass upon his guilt or innocence. In the recent case of Ewing v. State, 9 So. (2d) 879, 880, this Court said, ' ' The question before us is not whether the defendants are in fact guilty or are probably guilty, but whether the State has made out beyond a reasonable doubt a case sufficient to withstand the weight of testimony consistent with innocence. The doubt that reasonable men engaged in a search for truth could safely accept and act upon the evidence to a moral certainty of guilt must be resolved in favor of the defendants. We are of the opinion that justice requires that the case be remanded and a new trial awarded.\\\" That statement is applicable here.\\nReversed and remanded.\"}" \ No newline at end of file diff --git a/miss/1931313.json b/miss/1931313.json new file mode 100644 index 0000000000000000000000000000000000000000..bf828cf5cced23cda1ad80b8fd31acd07b3a380e --- /dev/null +++ b/miss/1931313.json @@ -0,0 +1 @@ +"{\"id\": \"1931313\", \"name\": \"Smith v. State\", \"name_abbreviation\": \"Smith v. State\", \"decision_date\": \"1945-12-10\", \"docket_number\": \"No. 35954\", \"first_page\": \"788\", \"last_page\": \"797\", \"citations\": \"198 Miss. 788\", \"volume\": \"198\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:39:40.561883+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Smith v. State.\", \"head_matter\": \"Smith v. State.\\n(In Banc.\\nDec. 10, 1945.)\\n[24 So. (2d) 85.\\nNo. 35954.]\\nA. M. Warwick, of Carthage, for appellant.\\nGreek L. Rice, Attorney-General, by R. 0. Arrington, Assistant Attorney-General, for appellee.\", \"word_count\": \"1839\", \"char_count\": \"10462\", \"text\": \"L. A. 'Smith, Sr., J.,\\ndelivered the opinion of the court.\\nAppellant had bought a cow from a Mr. Martin, which, under the terms of the trade, was to be delivered by the seller at the home of the appellant. The Martin brothers, in performance of this term of the transaction, had loaded the cow in the truck of one of them and were proceeding to deliver it when it appeared they were, or about to run, out of gasoline. Appellant was a passenger in the truck. They stopped at a certain crossroad and proceeded to make an examination. While several were standing around, one of the persons saw a bottle of whiskey in the pocket of appellant. Shortly thereafter appellant removed the bottle of whiskey from his pocket and hid it under his coat as he saw another car approaching where he was standing with these several people. Almost immediately he walked across to the truck, opened the cab door, and put the whiskey on the floor of the cab. When the approaching car stopped, a deputy sheriff, accompanied by a member of the highway patrol, was in it. The deputy had a warrant for the arrest of appellant on a charge of drunken driving the night before. There is conflict between the deputy sheriff and the highway patrolman as to whether or not he arrested appellant \\\"be fore searching the truck. It is unimportant here, we think.\\nNeither the deputy nor the highway patrolman saw the whiskey before it was taken from the cab of the truck, but they did see the motions and maneuvers of appellant and his opening the door of the cab and putting something therein from beneath his coat. The deputy sheriff, without a search warrant, proceeded to search the cab, and his doing so under such circumstances, and the admission of the evidence obtained thereby, is the basis of one of the assignments of error here. Appellant claimed that he had the truck rented, and, therefore, had dominion over it at the time when the search was made, and it was unlawful and against his rights. However, the evidence is clear that he did not have the truck rented, but that it belonged to one of the Martins, was being driven by one of them on their business of complying with the contract of sale of a cow and delivery thereof to the home of the appellant. Appellant, therefore, was not in a position to object to the search, or to the admission of the evidence secured thereby. Davis v. State, 144 Miss. 551, 110 So. 447.\\nAppellant says that he was in the mere transitory possession of the whiskey for the purpose of taking a drink, which had been offered to him by a negro just before the deputy and the patrolman came on the scene, and that therefore under the authority of such cases as Harness v. State, 130 Miss. 673, 95 So. 64, Anderson v. State, 132 Miss. 147, 96 So. 163, and Brazeale v. State, 133 Miss. 171, 97 So. 525, he was improperly convicted of unlawful possession of intoxicating liquor. However, he is contradicted as to this, and the. jury heard the testimony and brought in a verdict contrary to the contention of appellant, and, under familiar rules, we will not disturb it. We have carefully considered the evidence on both sides in this case and are of the opinion that the verdict of the jury was not contrary to the great weight of the testi mony, -which, was conflicting. Therefore, the assignment of error based on the weight of the testimony is overruled.\\nThe important issue to be determined in this case is a plea in abatement, based on the following facts: Some days after the scene at the truck, an affidavit against appellant was sworn to and lodged with a justice of the peace of District I of Leake County, Miss., where the crime occurred. However, the justice of the peace before whom this affidavit was made and with whom it was lodged was then at the county seat attending circuit court in District No. 2, which convened that day. This was in the morning. _ Later in the afternoon the grand jury of the county indicted appellant for the offense here involved and being the same identical offense charged in the affidavit. He was arrested under the indictment, but it does not appear from the record that he had then been arrested under the affidavit. He was tried and convicted in the circuit court, and from that conviction' he appeals, assigning' the errors discussed above and in addition raising the difficult question of jurisdiction between the circuit court and the justice of the peace courts. The rule with reference to the concurrent jurisdiction of the circuit and justice of the peace courts as to misdemeanors is Section 1831, Code 1942, and is construed in Milling v. State, 188 Miss. 592, 194 So. 291. The second syllabus is as follows: \\\"The rule that where concurrent jurisdiction is vested in two courts, the court first acquiring jurisdiction should proceed with trial and disposition of case is intended to prevent confusion and conflicts in jurisdiction, and to prevent a person from being twice tried for the same offense, and no defendant has the vested right to be tried in any particular court of concurrent jurisdiction.\\\"\\nWe are, therefore, faced with the issue, whether the lodging with the justice of the peace, under' these circumstances, of the affidavit against appellant whereon no warrant had been issued, prevented the circuit court under such conditions from acquiring exclusive jurisdiction to dispose of the case finally, as was done here. Section 1832, Code 1942, provides that: ' ' On affidavit of the commission of any crime of which he has jurisdiction lodged with a justice of the peace, he shall issue a warrant for the arrest of the offender returnable forthwith or on a certain day to be named, and shall issue subpoenas for witnesses as in civil cases, and shall try and dispose of the case according to law; and, on conviction, shall order such punishment to be inflicted as the law provides.\\\" We have in a number of cases held that an affidavit is essential to confer jurisdiction on a justice of the peace to try and punish an offender, and that such affidavit is a prerequisite to prosecution for the foundation of the jurisdiction of the justice of the peace, and that the court has no jurisdiction without it. Bigham v. State, 59 Miss. 529; Bramlette v. State, 193 Miss. 24, 8 So. (2d) 234, and others. However, we do not seem to have held more than that \\u2014 in other words, we do not seem to have heretofore decided that the mere lodging of an affidavit with a justice of the peace confers full, final and exclusive jurisdiction on such justice court, so as to preclude the circuit court from indicting the offender, and disposing of such offender in the circuit court where warrant had not been issued by the justice of the peace prior to the indictment. We approached the matter from that angle in the case of Hampton v. State, 138 Miss. 196, 197, 103 So. 10. In that case an affidavit was filed in the justice of the peace court of the county charging' appellant with the sale of liquor, and upon this charge she was arrested and entered into bond for her appearance in that court to answer the charge. The affidavit had not been disposed of and was still pending in the justice of the peace court at the time of the trial in the circuit court. During the term of the circuit court an indictment was returned against the defendant charging her with the same offense. It was held that, under the conditions described, the circuit court acquired no jurisdiction. In the case at bar the justice of the peace had issued no warrant of arrest be fore the indictment was returned, and arrest pursuant to the indictment.\\nThe state attacked the jurisdiction of the justice of the peace on the ground that the affidavit was made and lodged with him while he was out of his court district. We do not think there is anything to this argument.\\nThe appellant, in the circuit court, filed a plea in abatement on an agreed statement of facts, as above set out, and claimed that the rule governing the concurrent jurisdiction between the justice of the peace court and the circuit court deprived the circuit court of jurisdiction here, since the jurisdiction had become fixed and exclusive in the justice of the peace court before the indictment was returned and appellant arrested 'under the indictment. This plea in abatement was overruled by the court, and such action by the court is assigned as error here. We are of the opinion that the trial court was right.\\nWe have reached a conclusion in harmony with the views expressed in the case of Hampton v. State, supra, and in Smithey v. State, 93 Miss. 257, 46 So. 410, in which we held that a justice of the peace court has jurisdiction concurrent with the circuit court of misdemeanors, and, in the absence of fraud and collusion, may try a defendant duly charged with and arrested to answer a misdemeanor, although an indictment for the same offense has been found and returned in the circuit court, where defendant has not been arrested to answer it. Judge Mayes, in delivering the opinion of the Court, said: \\\"The crime was one over which the justice of the peace had jurisdiction concurrent with the circuit court. Until arrest under the indictment, in the absence of proof or charge of fraud, the jurisdiction had not attached in the circuit court, so as to exclude the jurisdiction of the justice of the peace. Whenever there is an indictment and arrest, in either court, jurisdiction is then exclusive; but until then, in the absence of any allegation and proof of fraud or collusion, either court maj^ proceed . . . \\\" All of the statutes cited by appellant, including Section 2438, Code 1942, were in the code prior to and at the time of the Smithey case, so that none of them are newly before us. Therefore, the. circumstances of the instant ease, in view of the authorities cited, had not reached the point at which exclusive jurisdiction had become fixed in the justice of the peace court, because no warrant had been issued by the justice of the peace and served by arrest of appellant at the time the indictment was found and returned in the circuit court and appellant arrested pursuant to said indictment; and the trial court was correct in overruling the plea in abatement.\\nThe judgment of the trial court is affirmed.\\nAffirmed.\"}" \ No newline at end of file diff --git a/miss/374263.json b/miss/374263.json new file mode 100644 index 0000000000000000000000000000000000000000..096b27bc9b5a8d16ab31f011735d881a9588b140 --- /dev/null +++ b/miss/374263.json @@ -0,0 +1 @@ +"{\"id\": \"374263\", \"name\": \"Hampton R. Lusby et al. v. Hezekiah Cobb et al.\", \"name_abbreviation\": \"Lusby v. Cobb\", \"decision_date\": \"1902-03\", \"docket_number\": \"\", \"first_page\": \"715\", \"last_page\": \"730\", \"citations\": \"80 Miss. 715\", \"volume\": \"80\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:44:27.227106+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hampton R. Lusby et al. v. Hezekiah Cobb et al.\", \"head_matter\": \"Hampton R. Lusby et al. v. Hezekiah Cobb et al.\\n1. Wills. Construction. Environments of testator.\\nIt is competent in construing a will to look to the situation of the testator, his environment as related to his estate and devisees or legatees at the time the will is made.\\n2. Same. Kin. Meaning of term.\\nThe word \\u201ckin,\\u201d standing alone in a will, means such kin as take under the statutes of descent; but where there are other words in the will disclosing, with reasonable certainty, that particular persons were meant to be designated, courts will give the word the meaning the testator attached to it.\\n3. Same. Case. \\u201cKind\\\" used for km.\\nWhere a testator devised his estate to \\u201c all. my blood kind in Louisiana and Texas,\\u201d and at the time the will was made and at his death he had two half-brothers and one nephew of the whole blood residing in Louisiana and nephews and nieces and grandnephews and grandnieces of the whole blood residing in Texas, the word \\u201ckind\\u201d should be construed as \\u201ckin,\\u201d and the half-brothers are entitled to a per capita share of the estate.\\nFrom tbe chancery court of Washington, county.\\nHon. A. McO. Kimbrough, Chancellor.\\nCobb and others, appellees, were complainants in the court below; Lusby and others, appellants, were defendants 'there. From a decree in complainants\\u2019 favor defendants appealed to the supreme court. The opinion states the case.\\nCampbell & Starling, for appellants.\\nThe principal question presented for consideration is: To whom did T. C. Lusby intend his estate to go, and what did he mean by the words \\u201cto all my blood kind in Louisiana and Texas ?\\u201d The words \\u201cblood kind\\u201d in this clause unquestionably is the equivalent of \\u201cblood kin.\\u201d (See Century Dictionary.) So that the clause should be read, \\u201cTo all my blood kin in Louisiana and Texas.\\u201d When the testator died, the two half-brothers and one nephew resided in Louisiana, and the rest of the said kindred resided in Texas. In common acceptation, the being a man\\u2019s kindred is being of his blood, and it is in that sense that the word \\u201ckindred\\u201d is used in the statute of distributions, so that a bequest to \\u201ckindred\\u201d is understood to. refer to blood relations, without the use of the word, \\u201cblood.\\u201d Roper on Legacies, 118.\\nA devise or bequest to \\u201cnext of kin\\u201d is understood to mean the nearest blood relation in equal degree of the propositus, such relations being determined without regard to the statute of distributions. Jarman on Wills (1893), vol. 2, 112; Hawkins on Wills, 97; 1 Roper, 119.\\nA devise or bequest to \\u201crelations\\u201d simply applies only to the person or persons who would, by virtue of the statute of distributions, take the estate under an intestacy, either as next of kin or by representation of next of kin. Such is the construction by a long line of decisions, English and American, adopted for convenience, and to prevent a bequest, so made, from being void for uncertainty. 2 Jarman on Wills, p. 130; 1 Roper on Legacies, 100; Schouler on Wills, see. 537.\\nThe word \\u201cblood,\\u201d mentioned in the statutes of descent and distribution, has been uniformly construed to include, in its technical, as well as in its natural sense, the half blood. 4 Am. Eng. Enc. Law, 585; Anderson v. Bellj 29 L. R. A., 541; 1 Roper Leg., 119.\\nWe have not been able to find, after diligent search, a single case in the books wherein language in a devise or bequest exactly like that under consideration has been construed. Had the devise in question been to \\u201cnext of kin,\\u201d the half brothers would have taken to the exclusion of the nephews and nieces of the whole blood. 2 Jarman on Wills, 112; 16 Am. & Eng. Enc. Law, 705; Loche v. Locke, 45 N. J. Eq., 97; 1 Roper, 19. Had the devise in question been simply to \\u201crelations,\\u201d the half brothers would have taken in common with the nephews and nieces of the whole blood, under the statute of distributions of England, and under that of most of the United States. 2 Jar-man on Wills, 135; 16 Am. & Eng. Enc. Law, 704; Schouler on Wills, sec. 537.\\nSince, therefore, the nephews and nieces of the whole blood of J. C. Lusby would have taken his estate, under the Mississippi statute, had he died intestate, to the exclusion of his half brothers, and since a bequest to \\u201crelations\\u201d includes only those entitled to take under the statute of distributions, appellees contend that they are entitled to the whole estate to the exclusion of the half brothers. If that be true, and if it be held that the meaning of a bequest to \\u201crelations\\u201d would vary according as local statutes of distributions may vary, so that the word \\u201crelations\\u201d would include a certain class under one statute, and a different class under another statute, the devise in question is not to \\u201crelations,\\u201d but to \\u201cblood kin,\\u201d and not only to \\u201cblood kin,\\u201d but \\u201call my blood kin in Louisiana and Texas,\\u201d which conveys quite a different meaning, as would be commonly understood from a devise to \\u201crelations\\u201d simply.\\nIt is well settled that, where a bequest is to \\u201crelations,\\u201d and the testator has fixed, in the will, a test by which the number of relations, intended by' him to receive his estate, can be ascertained; or where a testator has shown an intention in his will to comprehend relations who would not be entitled to take under the statute of distribution, his intention will prevail, and those entitled to take under the will, will not be limited to those who would be entitled to take under the statute of distribution. 1 Koper on Legacies, 112. Where it is stated that a legacy to such relations of the testator as are not worth five hundred pounds would entitle all relations to the testator, who could show that their property is within the sum mentioned, to share in the legacy, without regard to the limit prescribed within the statute of distribution. See, also 4 Vesey, Jr. P., 719, note 5. \\u2022\\nIn Greenwood v. Greenwood, 1 Brown\\u2019s C. 0., 32, a testatrix bequeathed her estate to be divided between her ''''relations\\u201d \\u25a0 \\u2014 i. e., the Greenwoods, the Everits, and Dows. The Events, although not related to the testatrix, within the statute of distribution, were permitted to take jointly with their next of kin, the Greenwood\\u2019s and the Dows, on the ground that the word \\u201crelations\\u201d is explained by the context of the will, and extended beyond the confines of the statute. In that case the testatrix named a family not related to her within the statute of distribution, and thereby manifested her intention to go beyond the confines of the statute. So Lusby, by the devise in question, manifested his intention to go beyond the confines of our statute by devising his estate to \\u201call his blood kin in Louisiana and Texas.\\u201d The beneficiaries intended by a will may be ascertained as well by a description of their locality as by name.\\nAs Lusby mentioned the persons intended by him to take under his will as being in Louisiana and Texas, and as his two half brothers and one nephew lived in Louisiana, and the rest of his blood kin lived in Texas, it must be presumed that he Avas aware of their locality; and, therefore, as he knew that only three of his blood kin were in Louisiana, and that two of these were his half brothers, he surely intended to include them, when he said \\u201cto all my blood kin in Louisiana and Texas.\\u201d\\nThe intention of the testator, in the construction of a will, is the great criterion, and courts strain to discover his intention. Rules of testamentary construction have but a limited and subordinate application. Certain words and expressions, as given above, Avhen standing unexplained, acquire from precedents a someAvhat definite meaning; but if it could be once a question, whether or not technical phrases should conclude a testator\\u2019s intention, it is no longer doubtful that his intention is paramount. The same literal expression in two wills might demand the same construction; but unless the two wills are identical throughout, and dispose of similar fortunes under similar circumstances, a precedent fails of its full force. Schotler on Wills, 'sec. 462; Boston, etc., Go. v. Goffin, 8 L. R. A., 740; Masterson v. Townsend, 10 L. R. A., 816; Vcmnerson v. Culbertson, 10 Smed. & M., 150; Sorsby v. Vance, 36 Miss., 564; Tatum v. McLellan, 50 Miss., 1.\\nShields & Boddie and W. S. & Farrar L. McGain, for appellees.\\nWe insist that the meaning of the will is the same as if it bad been couched in these words: I, J\\\". C. Lusby, declare this to be.my last will and testament: I constitute my friend, W. M. Paine, my executor, believing him to be the most suitable and competent person to take care of my creditors and wind up my affairs, and I direct that no bond be required of him. My heirs live in Louisiana and Texas, and I desire that my prop.erty be divided among them as if I had died intestate.\\nThe original instrument shows on its face that it was drafted by one of very limited education, and it is obvious that the word \\u201ckind\\u201d is the word \\u201ckin\\u201d misspelled. As all the heirs, both of the whole blood and of the half blood, resided in Louisiana and Texas, the issue narrows itself down to the single question whether the word \\u201ckin,\\u201d as used in the will is, as we insist it is, the legal equivalent of the word heirs. It is evident that the sole object of the testator, as well as of the draftsman of the will in this particular case, was to name the person who should wind up the affairs of the testator. That being accomplished, the testator had no further will to express.\\nThe adjective \\u201cblood,\\u201d as used in the alleged will, seems to be meaningless. If a bachelor has kin other than blood kin, it is unnecessary, of course, for him to use any word in his will to qualify kin if he wishes them to take his property, since the statute does not give any part of a bachelor\\u2019s estate to those who are related to him by mere affinity.\\n\\\"Where a man does not mean anything by the use of a particular word in his will, it is a hopeless task for the court to undertake to extract the meaning of that word, and we really think that in the nse of the word \\u201cblood,\\u201d the testator in this case, meant nothing more than is implied by the word kin; bnt if any meaning whatever can be imputed to the word \\u201cblood,\\u201d it could only have been used to emphasize the idea that the testator wished his property to go to his heirs of the whole blood,as distinguished from those of the half blood. If he meant kindred of the whole blood as distinguished from those of the half blood, the phrase he used to express the idea is a very awkward one, we admit, but if \\u201cblood\\u201d as used in this will does not mean whole blood, then it does not mean anything.\\nWe think it will be agreed also that there is a common impression among laymen that one cannot have heirs if he has never had children, and in this case the word kin was doubtless used by the draftsman and the testator 'to avoid the, to them, apparent absurdity and incongruity \\u2022 of speaking of a bachelor\\u2019s heirs.\\nBut even if the testator had in mind as the object of his bounty some person or persons other than his legal heirs, the courts, in construing wills, have found it impracticable to give effect to any such general terms as \\u201crelatives,\\u201d \\u201ckin,\\u201d and the like. Whether we accept the orthodox view that He hath made of one blood all nations, of the more modern and less dignified theory that we are merely tailless specimens of the monkey family, that is to say, whether we accept the idea that all the people in Texas and Louisiana are descendants of the primeval pair, and hence are of kin to us all, or whether our ancestry is to be traced to a different source, it is none the less true that nearly every person has, and doubtless the testator in this case had, a large number of kinsfolk extending into ramifications of distant family connections, and the courts, for practical purposes, have found it to be absolutely essential to fix a limit beyond which they will not undertake to go in distributing the property of an intestate. The books tell us of cases in which the courts have been overwhelmed with people claiming to be \\u201crelatives\\u201d of a testator where he had made a provision for \\u201crelatives.\\u201d\\nThere is but-one safe and practicable rule, and that is to adopt the statute of descents- and distribution, and this seems to be the rule quite universally acted upon in such cases.\\nThe law is thus stated in 2 Woemer\\u2019s Am. Law of Administration, sec. 423: \\u201cA gift to 'relations/ without a particular specification, is necessarily construed as a gift to- those who would take the estate in case of. intestacy, because in its widest sense it would include every degree of consanguinity and thus render the gift void for uncertainty.\\u201d\\nPage on Wills, sec. 529, says: \\u201cThe popular meaning of the word 'relatives/ or 'relations/ is that of all persons within any degree of relationship whatever of consanguinity or affinity. But when the word 'relations\\u2019 is used in a will to denote a class of beneficiaries, it is settled that the law imposes a technical meaning and not the popular one. The primary meaning of the word 'relatives/ or 'relations/ is such persons as would take under the statutes of descents and distribution, if the testator had died intestate.\\u201d Jarman on Wills, 130 [972] ; 4 Kent\\u2019s Com., 537, notes; Beach on Wills, sec. 292.\\nIn Handley v. Wrightson, 60 Md., 198, the testator devised certain lands to his wife for life, which at her death were \\u201cto be equally divided between her near relatives and mine.\\u201d In construing this clause the court said: \\u201cThe capacity of those to take under a devise or legacy, who are described as 'relatives/ has been too long upheld by settled legal construction for legal uncertainty to attach to the term 'near relatives/ used by the testator in the will before us. In determining who, under this nomen collectivum, are entitled, and in what proportions, recourse, as a general rule, is had to the statute of distribution. 2 Jarman on Wills (5th Am. ed.), 661; 2 Wms. on Ex., 1003, and notes; 2 Bedfield on Wills (3d ed.), 85.\\n\\u201cIn Whilihorn v. Harris, 2 Vesey, Sr., 527, the bequest was to all and every person and persons who- are near relations to me. In Doe v. Over et al., 1 Taunton, 263, the testator gave his freehold estate to his wife for life, to be equally divided at her death among the relations on his side. In the first .case the legatees and in the second -the devisees, took under the statute of distribution.\\u201d\\nIn Drew v. Wakefield, 54 Me., 298, it is said: \\u201cWhen the bequest is to relations, the next of kin, according to the statute of distribution, are entitled to' the bequest.\\u201d\\nIn the matter of trusts, where property is given in trust to be distributed among the donor\\u2019s relations, the same rule applies.\\nPerry on Trusts, in sec. 256, says: \\u201cCourts have adopted the rule of the statute of distributions as a convenient rule in such cases, to prevent such gifts from being void for uncertainty.\\u201d\\nThe same author says, in sec. 699: \\u201cSo trusts for \\u2018poor relations\\u2019 have been considered charitable, and will be confined to such poor relations as are next of kin under the statute of distribution.\\u201d\\nIt is the settled construction of \\u00a7 1544, code 1892, the statute of descent and distribution, that brothers of the half blood are postponed to nephews and nieces of the whole bood. See cases cited in notes to \\u00a7 1544.\\nLeroy Percy, on same side.\\nWe are aware of the fact that all mankind are kin; that no limitation can be placed upon the remoteness of such kinship; that the fiftieth cousin is embraced within this comprehensive term as well as the twin brother, although the fact of Iqnship may be much more difficult to establish in the one case than in the other. If all of this class are, as contended by the appellants, entitled to participate per capita in the distribution of an estate, the number of such class who will come forward as claimants 'to establish their kinship with the \\u201cdear departed,\\u201d will very largely be governed by the size of the estate to be parceled out. The expense and trouble of proving a remote degree of kinship that would be too great to bear where the prize is small, would be cheerfully borne where an estate of magnitude was to be partitioned. For Lazarus, a brother, might not claim kinship; for Dives, his kin, would be more numerous dead than his acquaintances alive. Within two years, in the case of Barnett v. Handy, Amb., 708, four hundred and fifty-six mourning kin came forward. As a matter of fact, under a per capita 'distribution, more than forty-seven have already developed in this case. But the realization of the indefiniteness of such devisees has long since forced the courts to specifically define the meaning of such a term. As succinctly stated in 2 Jarman on Wills (4th Am. ed.), 33, \\u201cThe word relations, taken in its widest extent, embraces an almost illimitable range of objects; for it comprehends persons of every degree of consanguinity, however remote, and hence, unless some lines were drawn, the effect would be that every such gift would be void for uncertainty. In order to avoid this consequence, recourse is had to the statutes of distribution; and it has long been settled that a bequest to the relations applies to the person or persons who would take by those statutes;\\u201d and the learned author goes on to say that while formerly this was doubted as to real estate, that in the case of Thwaites v. Over, 1 Taunton, 263, the doctrine has been established likewise to real estate, and the author adds, \\u201cThe rule which makes the statute of distributions the guide in these cases is not departed from on slight grounds,\\u201d and that the statute of distributions not only determines the objects of the devise, but also regulates the proportions in which they take, the next of kin taking per stirpes, not per capita; and from the case cited in 1 Taunton this definition of the words-kin, blood kin, relations, has been followed by the unbroken current of decisions in England and in this country, and for centuries the phrase has not been a vague or indefinite one, but has been crystallized by numerous judicial decisions into a term, the meaning of which is clearly understood. For the English cases so deciding, see notes to Jarman, supra; and some of the American cases so holding-are, Drew v. Walcefield, 54 Maine, 291; Handel v. Waitman, 60 Md., 198; Boss v. Boss, 25 Conn., 307; Varrell v. Wendell, 20 N. H., 431; 2 Williams on Executors (5th ed.), 1003, note; 2 Redfield on Wills, 410, 421; 20 Am. & Eng. Enc. Law (1st ed.), 739, note; 1 Roper on Legacies, 326; Page on Wills, 529. '\\nWas this rule of construction adopted for the purpose of carrying out the intention of the testator? Not at all, except to the extent of carrying out his intention to die testate. It was adopted ex necessitate rei by the courts, because, otherwise, the decedent would die intestate by reason of the impossibility of ascertaining the persons who would take; in fact, as stated by Redfield, 2 Redfield on Wills, 410, \\u201cIn a large proportion of the English cases where this rule has been applied, it has evidently defeated the intention of the testator.\\u201d Some rule had to be adopted; some specific definition had to be attached to the phrase, and this significance was attached to it by earlier adjudications, and has been followed until the person now using it is using a term freed from all uncertainty and ambiguity; and, as stated by Lord Chancellor Burleigh, in the case of Bayner v. Mobray, 3 B. C. O., 234, \\u201cWhen once a rule has been laid down, it is best to abide by it. We cannot always be speculating what would have been the best decision in the first instance.\\u201d\\nArgued orally by B. B. Campbell, for appellant.\", \"word_count\": \"5608\", \"char_count\": \"31422\", \"text\": \"Whitfield, O. J.,\\ndelivered the opinion of the court.\\nJ. O. Lusby, a resident of Washington county, of this state, died therein on the 22'd of October, 1900, possessed of an estate worth from $75,000 to $100,000. He was never married, and had neither father nor mother living at the time of his death, but during his life he had two sisters of the whole blood and two brothers of the half blood. His two sisters of the whole blood died before he did, each of them leaving five childrefi. Two of these children afterwards married, and had children, and then died, one of them leaving a child, and, the other, three children; so that at the time of his death he left surviving him nephews and nieces, grandnephews and grandnieces, as descendants of his sisters of the whole blood, who are the appellees in this case, and two brothers of the half blood, who are the appellants. The two half brothers and one of the nephews resided in Louisiana, and all the rest resided in Texas. On the day of his death he made his last will and testament, disposing of his entire estate in the first item thereof, which is in the following language\\\"I give, devise, and bequeath all the property, real and personal, mixed and choses in action, I may own at my death, wherever located and situated, to all my blood kind in Louisiana and Texas. Mr. Spink's children in Texas heirs I do not know.\\\" There are but two other items in his will, and they relate alone to the appointment of an executor and the payment of his debts. The will was probated in Washington county, and the nephews and nieces and grandnephews and grandnieces of the testator filed their bill in the chancery court of said county against the two half brothers, claiming that they are entitled, under said will, to the whole of said estate to the exclusion of the half brothers, and asked the court to construe said will, and to cancel the claim of the two half brothers as a cloud on their title. The two half brothers answered the bill, claiming that they were entitled to share per capita in said estate. Thereupon the case was heard on bill and answer, and the court decreed that the nephews and nieces and grandnephews and grandnieces of the whole blood were entitled to said estate to the exclusion of the two half brothers, and from that decree the two half brothers have appealed.\\nThe question for solution here presented is this: What did the testator himself mean by the words \\\"all my blood kind in Louisiana and Texas?\\\" Whom did he intend to take his estate ? The word \\\"kind\\\" was, of course,',used for \\\"kin.\\\" It is doubtless true that the word \\\"kin\\\" standing alone in a will, without anything else to show what kin the testator meant, has received an interpretation supported by innumerable decisions to the effect that the kin meant are such kin as could take under the statute of descent and distribution. This is crystallized, but it must be remarked that it is operative alone in those wills where the testator has used no other words from which the court can determine what particular persons he meant by the mere word \\\"kin.77 It is just as thoroughly settled as the rule itself that wherever there are other words in the will which disclose with reasonable certainty to the court what particular persons the testator meant by the word \\\"kin,77 there, his intent being clear, and what he meant by use of the word \\\"kin77 being thus made clear, the court will, of course, give to the word \\\"kin77 the meaning the testator attached to it, whether that be the same as or different from the technical signification the courts have given the word \\\"kin77 when standing alone and wholly unexplained. The object always sought in construing a will is the ascertainment of the testator's intention. That intention must be ascertained from the words used in the will itself, since it is the function of courts merely to interpret, not to make, wills. It is, however, always competent to look to the situation of the testator with respect to his estate, his environment as related to his estate, or his devisees or legatees at the time of the making of the will. What was that environment in this case ? Here was a testator having no father nor mother nor wife or children, leaving an estate of about $100,-000 in value, and having nieces and nephews, grandnieces and grandnephews of the whole blood in the state of Texas, and having also one nephew of the whole blood and two brothers of the half blood in Louisiana, at the time of his death and of the execution of this will. He knew what estate he had. He was aware that the kin to whom he proposed to leave his estate were those living in Louisiana and Texas. He had in mind the fact that only one nephew of the whole blood and that two brothers of the half blood lived in Louisiana at the time. We must deal with him, situated as he was, with the knowledge that he had, put ourselves as far as possible in his place, and, having done that, see if there be in the will language showing what he meant by the use of the words \\\"all my blood kind in Louisiana and Texas.\\\" The wiS^ls \\\"all my blood kind\\\" apply as well to the phrase \\\"in Louisiana\\\" as the one \\\"in Texas,\\\" and for the purposes of this case we m\\u00e1y read the clause as if written \\\"all my blood kin in Loy\\u00e1siana.\\\" It is true, \\\"kin\\\" are, of course, \\\"blood kin,\\\" and that the same construction will obtain as if he had said \\\"all'iny kin in Louisiana.\\\" But we cannot concur with counsel for appellees that there is no significance in the words \\\"all my kin,\\\" in this connection. Considered in a purely abstract way, the phrase \\\"all my kin\\\" is doubtless equivalent to the phrase \\\"my kin.\\\" But when we take into consideration the fact that the testator, who used the phrase, \\\"all my blood kind in Louisiana,\\\" knew that he had but one person of the whole blood kin to him in Louisiana, it is inconceivable that he would use the phrase, \\\"all my blood kind in Louisiana,\\\" to designate simply one person. There was more than one person of his kin in Louisiana. There were three \\u2014 two, indeed, of the half blood, but nevertheless \\\"kin,\\\" and \\\"blood kin.\\\" And it is inconceivable that the testator, with these facts in mind, should have made use of the words, \\\"all my blood kind in Louisiana,\\\" to designate just one of the three persons. \\\"All\\\" is a term of plural significance, and it is incongruous to apply it in this will as intended to designate but one. We think it is clear that this testator meant to embrace the two half-brothers within the scope of the words, \\\"all my kind in Louisiana.\\\" It would be useless to cite authorities on the one view or the other, in our opinion. They are admirably collected by the very learned counsel of the respective parties. If Ave were to write pages, we could not make the ground of our opinion any clearer; that ground being that this testator, knowing that he had two brothers of the half blood and only one nephew of the whole blood \\u2014 three persons \\u2014 in Louisiana, must have meant the word \\\"all\\\" to have its usual plural significance, and so to embrace the three, and cannot reasonably be held to have used this word \\\"all\\\" as designating just one person. It is true enough, if he had had but the one nephew of the whole blood in Louisiana, the use of the words, \\\"all of my blood kind in Louisiana,\\\" would have applied to such a one; but that is not the same thing when we come to the matter of ascertaining the intention of the testator as making the word \\\"all\\\" \\u2014 a word of plural significance \\u2014 designate one of the three, when three were known to fulfil the condition of residence in Louisiana, by the testator, when he made the will. It advances the argument no whit to state \\u2014 what cannot be denied \\u2014 that the mere word \\\"kin,\\\" standing by itself, unexplained, is universally held to mean such kin as can take under the statute of descent and distribution, if the case be one in which the court, putting itself in the testator's place, can find from other words used in the will that his intention was that the word \\\"kin\\\"should have, not its technical signification, but a meaning which he gives to it himself by the use of such other words. This testator localizes and restricts the kin \\u2014 none but those who live in Louisiana and Texas can take. ILe then says that all such kin in Louisiana and Texas shall take. He has in mind the purpose to exclude, and' he uses apt words of locality to so exclude. If he had meant still further to shut out particular persons, would he not have used the very simple method of naming the one nephew of the whole blood in Louisiana ? Nothing was easier. On the contrary, his purpose was to give to all his kin \\u2014those localized in these two states \\u2014 his property, and we cannot adopt the construction which would shut out the two half-brothers by making the word \\\"all\\\" plural in its significance, and evidently used by him comprehensively, point singly to one person merely, where three fit the description. We think this is the natural, obvious, and reasonable interpretation of this will. As well said by Hr. Schouler, in his work on Wills (sec. 4-63) : \\\"Authority in the mere verbal interpretation of wills carries no great weight, especially if the words and tenor of the whole will are not absolutely identical. The construction given to a verbal expression in one will is no positive criterion for all wills containing the same expression.\\\" We heartily approve the wisdom of Mr. Justice Miller's observations in Clarke v. Boorman's Ex'rs, 18 Wall., 502 (21 L. Ed., 904), where he says: \\\"Of all legal instruments, wills are the most inartificial, the least to be governed in their construction by the settled use of technical legal terms; the will itself being often the production of persons not only ignorant of law, but of the correct use of the language in which it is written. Under this state of the science of the law applicable to the construction of wills, it may well be doubted if any other source of enlightenment in the construction of a will is of much more assistance than the application of natural reason to the language of the instrument, under the light which may be thrown upon the intent of the testator by the extrinsic circumstances concerning its execution, and connecting the parties and the property devised with the testator and with the instrument itself.\\\" We also approve of Mr. Justice Taney's remarks, in Bosley v. Wyatt, 14 How., 390 (14 L. Ed., 468), where he says: \\\"No two wills probably were ever written in precisely the same language throughout; nor any two testators died under the same circumstances in relation to their estate, family, and friends; and it would be very unsafe, as well as unjust, to expound the will of one man by the construction which a court of justice had given to that of another, merely because similar words were used in particular parts of it.\\\" Here is a man evidently dealing most comprehensively. He devises a v.ery large estate, of the value of nearly $100,000, in one sentence, with no particular directions. His whole will consists of this devise, in one sentence, and the direction that his debts should be paid, and a nomination of an executor. Manifestly, he dealt in a most sweeping and comprehensive way with his property, without particular izing; and just so lie designated who should take. He has but two thoughts in view \\u2014 to exclude all his kin except those residing' in Louisiana and Texas, and includeall those thus grouped within his bounty. He knew that there were three in Louisiana, and so he does not name the one of the whole blood, which would have been easy to do, but uses the broad, comprehensive word \\\"all,\\\" of plural significance, meaning, as we think, clearly to apply it to the three, and not meaning to apply it illogically to but one.\\nReversed and remanded.\"}" \ No newline at end of file diff --git a/miss/374307.json b/miss/374307.json new file mode 100644 index 0000000000000000000000000000000000000000..a731352c66626646c52550a7005cbc0fc34d8d57 --- /dev/null +++ b/miss/374307.json @@ -0,0 +1 @@ +"{\"id\": \"374307\", \"name\": \"Mack Stuart, Executor, et al. v. Elizabeth Stuart Robinson\", \"name_abbreviation\": \"Stuart v. Robinson\", \"decision_date\": \"1902-03\", \"docket_number\": \"\", \"first_page\": \"290\", \"last_page\": \"297\", \"citations\": \"80 Miss. 290\", \"volume\": \"80\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:44:27.227106+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Mack Stuart, Executor, et al. v. Elizabeth Stuart Robinson.\", \"head_matter\": \"Mack Stuart, Executor, et al. v. Elizabeth Stuart Robinson.\\n1. Wills. Pecmula/ry legacy. Charge on land.\\nWhere a testatrix, while on her death bed, knowing that she had and would leave neither personal property nor money, executed her will, bequeathing a pecuniary legacy, and died two days afterward, leaving only a valuable real estate, the legacy will be a charge on the land, although that be specifically devised.\\n8. Same. Construction. Surroundings of testator.\\nThe surroundings of a testator at the time of the execution of his will may be considered in determining whether lands are charged with pecuniary legacies.\\nRrom the chancery court of Lincoln county.\\nHon. Henry 0. Conn, Chancellor.\\nMrs. Robinson, appellee, was the complainant in the court below; Stuart, executor, and others, appellants, were defendants there. The suit was instituted by Mrs. Robinson, a legatee under the will, to subject lands to.the payment of a legacy.\\nThe late Miss Mary Emily Stuart, an aged maiden, who, in her lifetime lived and who died at Brookhaven, while on her deathbed made a last will and testament in these words:\\n\\u201cState of Mississippi, Lincoln county. I, Mary Emily Stuart, of Lincoln county, Mississippi, of sound and disposing mind and memory, make this my last will. I will, devise, and bequeath all of my estate and property as follows: To my cousin, Mrs. Elizabeth Stuart Eobinson, of Washington, D. C., daughter of my uncle, James Stuart, ($500) five hundred dollars in loving remembrance. To my niece, Mrs. Martha Stuart Cochran, of Waco, Texas? a tract of Eobinson county, Texas, land, known as a part of the P. S. McNeill tract, consisting of eight hundred and forty acres.\\n\\u201cThere are relics here belonging to the Cope family, which I will describe and trust to Mrs. Gussie Stuart to hand over to Mrs. Cochran. There is a small silver spoon, one hundred years old, which came out of my grandfather Stuart\\u2019s family, which is all I have of that table silver. There is one pin cushion, mounted in silver, dated 1184, formerly owned by Jennie Wilkins White, my grandmother; also one black Lama shawl, lama lace, which belonged to Mrs. Criswell, which is to be given to Mrs. Cochran. I have a book written by college students, \\u201cAddresses and Lectures to the Young,\\u201d which I gave to Mrs. Cochran. Should there be any thing specially among the heirlooms that Mrs. Kate Cooney Abbott would specially like to have, I want her to have it.\\n\\u201cTo my dear and beloved friend, Mrs. Mary Jane Grafton, widow of James Grafton, of Lincoln county, Mississippi, I leave to her the place known as the \\u2018Abells place,' situated near Montgomery, in Lincoln county, Mississippi, in loving remembrance. I hereby appoint Mack Stuart, of Beauregard, Mississippi, my beloved cousin, as executor of my estate without bond.\\n\\u201cTo my beloved cousin, George Eobert Stuart; my entire property situated in the town of Brookhaven, Lincoln county, Mississippi. In the event of his death the property is to be given to my beloved cousin, Jennie Yee Stuart. In case both should die, the property is to belong to Mack Stuart or his heirs. To Mrs. W. S. Bowen I leave my iron bedstead and the furniture in the room. To Mrs. East, wife of the Reverend Mr. East, who so kindly nursed me, I leave my piano. To Mrs. R. 0. Boone, my beloved friend, I leave the amount of fifty dollars to be paid at the convenience of the executor.\\n\\u201cI also request my executor to settle bills of Thomas Perkins, amounting to fourteen dollars and some cents; also my drug bill at Grafton\\u2019s Drug Store; also Doctor Johnson\\u2019s bill for services rendered me in professional capacity.\\n\\u201cThe said executor, Mack Stuart, shall at my death proceed to wind up the affairs of the estate as the will directs. [Eifty dollars to Mrs. East instead of the piano, and piano to Ida Keenan.]\\n\\u201cIn witness whereof, I have signed, published, and declared this instrument as my will, at Brookhaven, Lincoln county, Mississippi, this the 3d day of May, A.D., 1899.\\n\\u201cMary Emily Stuart.\\n\\u201cWitnesses: Mrs. Belle Larkin, Mrs. Jane Keenan.\\u201d\\nMiss Stuart, the testatrix, died on May 5, 1899, two days after the execution of the will, aud the will was duly proved and admitted to probate, and the executor named qualified as such.\\nThe bill in this case avers that at the time the testatrix executed the will, and at the time of her death, she had no money or personal property save the trifling articles mentioned in the will, which were entirely of inadequate value to satisfy the pecuniary legacies made by the will; that the testatrix knew when she made the will, and when she died, that the legacies could not be paid save by charging them on the land, because, as she well knew, there was no other source from which they could be paid; that it was the intention of the testatrix to charge the lands devised by her with the payment of the legacies, \\\"and that the lands were valuable, the Brookhaven lots alone being worth several thousand dollars. The defendants, now appellants, demurred to the bill, their demurrer was overruled, and they appealed to the supreme court.\\nA. G. McNair and McWillie & Thompson, for appellants.\\nIs complainant\\u2019s legacy charged on the real estate? We think not. This question must be determined from the will itself. There is no ambiguity in its terms; the doctrine contended for by appellee that the court must construe the will in the light of the testatrix\\u2019s surroundings has no application; that doctrine applies only when there is some doubt as to the meaning of the terms of the will. This is announced in the case of Gilliam v. Chancellor, 43 Miss., 431, so much relied upon by appellee. The will itself in this case must control,, and the averments of the bill which are in conflict with it count for naught.\\nWe have therefore a case in which a money legacy is given to the complainant; specific real estate is given to the devisees, defendants. It turns out that there is no money, and no source from which it can be derived. It cannot be said with any more force, for instance, that the Abells\\u2019 place, devised to Mrs. Grafton, is to be subjected to Mrs. Robinson\\u2019s money legacy, than it could be said, had the testatrix not owned the Abells\\u2019 place, or if there had been no such place, but had been $500 in money on hand at the death of the testatrix, that the default in Mrs. Grafton\\u2019s devise should be made good by encroachment upon Mrs. Robinson\\u2019s legacy. The thing is as long as it is broad. In order to make a. money legacy a charge on real estate, specifically devised, if must appear from the will, either by express direction to that effect or by clear implication from the instrument taken as a whole, that the testator so intended. The court will not'find any better discussion of this question than the opinion cf Chancellor Kent in Lupton v. Lupton, 2 Johns. Ch., 512. See the case with notes. 1 N. Y. Ch. Rep. (L. ed.), 614. See, also, Knotts v. Bailey, 54 Miss., 235.\\nThe will in. this case does not blend the real and personal estate as one fund in the residuary clause or otherwise. None of the devises of land are on condition that the legacies are to be paid, and there is no residuary legatee or devisee. The direction in the last clause of the will that the executor should \\u201cproceed to wind up the affairs of the estate as the will directs,\\u201d does not aid Mrs. Robinson. It would have been his duty to have done so without the provision.\\nP. Z. Jones, for appellee.\\nWe recognize the general rule that legacies are payable primarily out of the personal estate, and that generally when the personal estate proves insufficient, legacies abate; that they are not chargeable on the land except by express terms or by necessary implication. It will be noted that this is not a case where the insufficiency of the personal estate arose after the death of testator. It existed prior to her death, and prior to the making of the will, and at the time of its publication. The first provision of the will contains this clause: \\u201cI will, devise, and bequeath all my estate and property as follows,\\u201d and the very next item gives a pecuniary legacy to appellee.\\nThe question arises as to what the testatrix meant by \\u201cmy estate and property.\\u201d If at the time of the making of the will she had both real and personal property, does not the use of the terms \\u201cmy estate and property\\u201d blend her personal and real estate in one common mass; and if this be true, is not the legacy'chargeable on the lands the same as though there were a blending of the two estates in the residuary clause of the will? .If she owned no personal estate at the time of the making of the will, then she intended to refer to her real estate.\\n' Counsel for appellant contends that parol evidence is inadmissible .because the will is unambiguous; that parol evidence cannot create an ambiguity and then solve it, for this would be, they. say, to substitute for the will actually made by the testator, one which the court thinks she intended to make. They fail to observe a very important distinction between the interpretation of the written words of. the instrument and the direct evidence of intention on the part of the testator.\\nIt is said in Schlottman v. Hoffman, IS Miss., 199, \\u201cIt is a well settled canon for the construction of wills that the court will take into consideration the attending circumstances of the testator, the quantity and character of his estate; the state of his family, and all the facts known to him which may be reasonably supposed to have influenced him in the disposition of his property. But when viewed in this light and from the standpoint of the testator, if the language of the will cannot be reasonably so construed as to carry out his discovered purpose, the will, and not the intent of the testator, must control. In other words, if the will as made, may without variance to its terms be so construed as to effectuate the purpose of the testator as disclosed by the will and attending circumstances, the court will so construe it.\\u201d\\nThe question of patent and latent ambiguities arises in this matter. When the will is considered in connection with the surrounding circumstances at the date of its execution, doubt arises as to the intent of the testator. The presumption is that the legacy was to be paid out of the personal estate, but the facts and circumstances show that there was no personal estate; then was it not the intention of the testatrix that this legacy be paid out of the real estate ? The terms used in the will and its language are applicable alike to either personal or real estate, the words used being, \\u201cI will, devise, and bequeath all my estate and property as follows.\\u201d Estate and property are of three kinds, real, .personal, and mixed. And in arriving at the intention of the testatrix it becomes necessary to ascertain the condition of her estate at the time of the making of the will. It is alleged in the bill that the testatrix had no money and no personal property at the time of the making of the will. The demurrer, of course, admits that this allega tion is true, but the counsel contends that it makes no difference whether she had personal property or not; that the legacy fails unless there is personal property, and can in no event, under the terms of this will, be charged against the land. In the e^se of Schlotiman v. Hoffman, supra, three kinds of ambiguities are mentioned, an intermediate class partaking of the nature of both patent and latent ambiguities; when the words are all sensible, and have a settled meaning, but at the same time admit of two interpretations according to the subject-matter in the contemplation of the parties. Our court, however, assigned this class of ambiguities to that of latent ambiguities. Ambiguity in the case at bar, if any exists, is of the nature of that here suggested. The subject-matter in the contemplation of the testatrix at the time of the making of her will was the disposition of her estate. This estate consisted mainly and almost entirely of lands. The main purpose and pole star in the construction of a will is to ascertain the intention of the testator, and in doing this it seems to be held by all the authorities that che court should place itself \\u201cin his (the testator\\u2019s) situation to see things as he saw them and to apply his language as he understood and intended it.\\u201d This is not done to vary the terms of the will, or contradict it in any particular, but to ascertain its true meaning. Page on Wills, sec. 823. Ib. sec. 816 et seq. Bingall v. Volz, 16 L. R. A., 321; Echford v. Echford, 26 L. R. A., 370; Whitcomb v. Rodman, 28 L. R. A., 149; Sherwood v. Shewood, 30 Am. St. Rep., 757; Gilliam v. Chancellor, 43 Miss., 437.\\nA case very similar to the one at bar has been decided recently by the supreme court of Missouri. It is Lutz v. Clotilde, 50 L. R. A., 847. The question of patent and latent ambiguities is not discussed. No fine sophistry is indulged in. There is a review of a great many,of the authorities on this question and the result reached is adverse to the contention of the appellants in this-case. It approved from Hoyt v. Hoyt, 85 N. Y., 142, this language: \\u201cIt is assumed that no man in making a final disposition of his estate will make a legacy save with the honest intention that it shall be paid. Hence it is seen from the provisions of the will prior to the legacy that the testator must have known that he had already disposed -of his personal estate, and there would not be enough left to pay the legacy, and the bare fact of giving a legacy indicates an intention that it .shall be made from the real estate.\\u201d\", \"word_count\": \"2556\", \"char_count\": \"14360\", \"text\": \"Calhoon, J..,\\ndelivered the opinion of the court.\\nFrom the will in this record, which the reporter will publish in full, considered in the light of the surroundings of the testatrix at the time she made it, we conclude that her intent was that the money legacies were to be satisfied out of the lands specifically devised. This is not a case where a testator left money or personalty sufficient to satisfy pecuniary bequests. Miss Stuart had neither, and knew she had neither, and it cannot be supposed that, on her deathbed, only two days before she ceased to breathe, she had the purpose to perpetrate a ghastly joke. Clotilde v. Lutz (Mo. Sup.), 57 S. W., 1018; 50 L. R. A., 847; Davidson v. Coon (Ind.), 25 N. E., 601; 9 L. R. A., 584.\\nAffirmed.\"}" \ No newline at end of file diff --git a/miss/455.json b/miss/455.json new file mode 100644 index 0000000000000000000000000000000000000000..e8433ac6c5b613d5c2028f2ace29ec63463de2de --- /dev/null +++ b/miss/455.json @@ -0,0 +1 @@ +"{\"id\": \"455\", \"name\": \"Edwards v. Cash et al.\", \"name_abbreviation\": \"Edwards v. Cash\", \"decision_date\": \"1930-02-10\", \"docket_number\": \"No. 28362\", \"first_page\": \"507\", \"last_page\": \"514\", \"citations\": \"156 Miss. 507\", \"volume\": \"156\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T00:24:03.488016+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Edwards v. Cash et al.\", \"head_matter\": \"Edwards v. Cash et al.\\n(Division A.\\nFeb. 10, 1930.\\nSuggestion of Error Overruled, Feb. 21, 1930.)\\n[126 So. 33.\\nNo. 28362.]\\nJ. F. Dean, of Senatobia, for appellant.\\nHerbert Holme's, of Senatobia, and Herbert Fant, of Sardis, for appellees.\\nAkgued orally by J. F. Dean, for appellant, and by Herbert M. Holmes and Herbert Fant, for appellee.\", \"word_count\": \"1600\", \"char_count\": \"9065\", \"text\": \"McGowen, J.,\\ndelivered the opinion of the court.\\n' The appellant, Rosie Edwards, presented for probate, in solemn form, a paper purporting to be the will of Charlie Johnson, deceased, and made the administrator of the decedent's estate and Annie Johnson, his wife and the only heir, parties to the proceeding, the latter being appellees here. Answer was filed, denying' that the paper was the last will and testament of the deceased; that it was executed as the statute requires, or that it was attested by credible witnesses \\u2014 in short, alleged that the paper was a 'forgery. The issue, being made up as above indicated, was submitted by the court to the jury, who returned a verdict for the contestants appellees here; and from the judgment entered on said verdict an appeal is prosecuted here.\\nThe will presented is as follows:\\n\\\"In the Year of Our Lord.\\nDecember 17, 1919.\\n\\\"I, Charlie Johnson in the county of Panola in State of Mississippi. Being of sound mind and memory, and understanding do make my last will and testament in manner and form following first I give devise an bequeath to my wife Annie and my Neath Rossie Edwards all of my possession or estate to be divided equal.\\nCharlie X Johnson.\\n\\\"witness Lonza Lee Edwards\\n\\\"Mahala. Tankson\\\"\\nThe evidence shows that Charlie Johnson, a negro, died in January, 1929, and left a considerable estate. The proponent, Rosie Edwards, was Johnson's niece, and had been reared by him. Johnson executed the will mentioned on the day of his marriage to the contestant, Annie Johnson, and' at that time Rosie Edwards was also married.\\nThe names of the persons who signed themselves as attesting witnesses are Lonza Liee Edwards, a stepson of the proponent, and Mahala Tankson. Mahala Tankson wa.s served with process to attend the court as a witness a few days before the convening of court, but did not appear, and no delay of the trial of the cause was asked on that account.\\nBen Edwards, a brother of Lonza Lee Edwards, testified that he was present when Charlie Johnson executed the will, and saw the witnesses named sign it, bnt that he did not sign as a witness, because he could not write his name.\\nLonza Lee Edwards was called as a witness in July, 1929, and stated on the trial of the case at that time that he was twenty-one years of age, but that when the will was executed he was only twelve years old. When objection was raised by counsel for contestant as to this witness' credibility or competency as an attesting' witness to the execution of the will, the court reserved a ruling, hut, at the conclusion of all the evidence, it offered to counsel on both sides to pass on all reservations made during the trial, and did pass upon several. Upon asking counsel if they had any further objections upon which it should pass, no response was made.\\nCounsel for appellant, proponent in the court below, secured an instruction in the language of the statute as to execution of wills, with the following further statement: \\\"The court further instructs the jury that the word credible means competent and the question of competency relates to the time of the attestation and that the jury are the sole judges of whether or not the evidence preponderates in establishing whether the witness to the will was competent or credible 'on December 17, 1919, when said will is alleged to have been executed.\\\"'\\nCounsel for appellees, the contestants in the court below, procured from the court similar instructions.\\nWe do not think it is necessary to consider the other assignments of error, as no new propositions of law are presented, and they are without merit. The assignment which we shall consider is ' the court erred in submitting to the jury the question of the competency of a witness when that is the sole province of \\\\the judge. That the court cannot delegate its power to determine this question has been settled so long and so often that it is almost useless to submit authorities on that point.\\\" Let it be remembered that the witness when presented to testi fy in the case was twenty-one years of age, and no question of his competency as a witness to. deliver evidence in a trial was raised. The precise question as we understand the record, is that, at the time of the execution of the will, one of the attesting witnesses was a. child under fourteen years of age \\u2014 about twelve years old at the time of attesting; that the presumption was that he was incompetent to testify as a witness or attest a will. This presents a very interesting and serious question, as the appellant did not offer evidence in support of the witness' competency save his own statement as a witness on the witness stand nine years, after he had attested the will as a witness, and when he was under fourteen years ' of age. No evidence was offered by others who knew him at that age as to his ability, at that time, to apprehend facts, remember them, truthfully state them, and his appreciation of the solemnity of his oath as a witness at that tender age.\\nCounsel for appellant, the proponent here, was offered an opportunity by the court below to have this precise question which is raised here presented there. For reasons best known th themselves, counsel on both sides did not avail themselves of the opportunity to have the court pass upon this question, and, consequently, counsel for appellant cannot complain here because he secured instructions submitting the competency of the attesting witness as such to the jury- \\u2014 in other words, if error was committed, and, we -do not intimate any decision on that question, counsel for the appellant, by the requested instruction, induced the court to submit the question to the jury, thereby waiving any right to complain here on appeal ; nor can complaint be made because the court granted similar instructions to the contestant. The case was tried by the jury, as counsel- requested and desired it, and, having lost his case, he cannot now complain here of an alleged error which was induced and procured at the hands of the court by his own request.\\nCounsel cites the case of Peters v. State, 106 Miss. 333, 63 So. 666, in which this court held, on this question, that there must be a capacity to understand questions put, and to form and express intelligent answers, and there must also be a sense of moral responsibility, a consciousness of the duty to speak the truth, and, further, that the question of the capacity of a witness to testify is primarily a question for the judge, and his decision will not be reversed on appeal, unless it is clearly erroneous. In this case, it was the question of the competency of a witness six years of age offered as a witness; and this, and the other cases cited by counsel, unquestionably present the law, but the question here presented is entirety different, and counsel seem to appreciate that fact by requesting that this question be submitted to the jury for their determination.\\nIn the case of Liverpool Insurance Company v. Van Os, 63 Miss. 431, 56 Am. Rep. 810, which ivas cited in the case of Wilson v. Zook, 69 Miss. 700, 13 So. 351, Judge Cooper, speaking for the court, held that, where both the plaintiff and defendant in a case, in instructions granted by the court, invoke substantially the same rule of law for the guidance of the jury in determining their verdict, the fact that the rule so invoked is erroneous does not, in favor of either party, constitute a good ground for reversal of the judgment rendered. See, also, Clisby v. Mobile & O. R. Co., 78 Miss. 948, 29 So. 913; Yazoo & M. V. R. Co. v. Schraag, 84 Miss. 155, 36 So. 193; Illinois Cent. R. Co. v. Jones (Miss.), 16 So. 300, 301; Queen City Mfg. Co. v. Blalack (Miss.), 18 So. 800; Yazoo & M. V. R. Co. v. Williams, 87 Miss. 344, 39 So. 489. Both the appellant and appellee, in the court below, requested the court to submit the competency of Tjonza Lee Edwards as an attesting witness to the will to the jury, and the court granted their request; consequently they cannot complain of it here. But counsel states; in his brief that this quoted part of the charge was a modification by the court. It is not shown by the record to be a modification. If a party ask for an instruction, and the same be modified by the court, the rule is that, if such is used by the party requesting the instruction, he may not complain of the error in the modification thereof; and appellant therefore waived objection to the modification by accepting and using the same, and, further, the record must show the modification. See Y. & M. V. R. Co. v. Byrd, 89 Miss. 308, 42 So. 286; Williams v. State, 95 Miss. 671, 49 So. 513; Hardaway v. State, 128 Miss. 722, 91 So. 418.\\nWe find no reversible error in this record. Affirmed.\"}" \ No newline at end of file diff --git a/miss/6879265.json b/miss/6879265.json new file mode 100644 index 0000000000000000000000000000000000000000..7642a7472c6fb80371f27fc24ff652b9061103b1 --- /dev/null +++ b/miss/6879265.json @@ -0,0 +1 @@ +"{\"id\": \"6879265\", \"name\": \"Eddie McCOY, Jr. a/k/a Eddie W. McCoy, Jr. a/k/a Wayne McCoy a/k/a Eddie Wayne McCoy, Jr. a/k/a Eddie McCoy, Appellant v. STATE of Mississippi, Appellee\", \"name_abbreviation\": \"McCoy v. State\", \"decision_date\": \"2014-10-21\", \"docket_number\": \"No. 2013-KA-00198-COA\", \"first_page\": \"705\", \"last_page\": \"716\", \"citations\": \"160 So. 3d 705\", \"volume\": \"160\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:01:53.159330+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.\", \"parties\": \"Eddie McCOY, Jr. a/k/a Eddie W. McCoy, Jr. a/k/a Wayne McCoy a/k/a Eddie Wayne McCoy, Jr. a/k/a Eddie McCoy, Appellant v. STATE of Mississippi, Appellee.\", \"head_matter\": \"Eddie McCOY, Jr. a/k/a Eddie W. McCoy, Jr. a/k/a Wayne McCoy a/k/a Eddie Wayne McCoy, Jr. a/k/a Eddie McCoy, Appellant v. STATE of Mississippi, Appellee.\\nNo. 2013-KA-00198-COA.\\nCourt of Appeals of Mississippi.\\nOct. 21, 2014.\\nRehearing Denied March 17, 2015.\\nOffice of State Public Defender by George T. Holmes, Hunter Nolan Aikens, attorneys for appellant\\nOffice of the Attorney General by John R. Henry Jr., Laura Hogan Tedder, attorneys for appellee.\\nBefore GRIFFIS, P.J., MAXWELL and FAIR, JJ.\", \"word_count\": \"5198\", \"char_count\": \"31037\", \"text\": \"MAXWELL, J.,\\nfor the Court:\\n\\u00b6 1. Eddie McCoy was convicted of possession of cocaine with the intent to distribute. The charge came after officers found 2.7 grams of cocaine, small plastic bags, scales, a gun, and brass knuckles in his girlfriend's apartment.\\n\\u00b62. On appeal, McCoy challenges the admission of this evidence. He argues it was unlawfully seized in violation of his Fourth Amendment rights. But Fourth Amendment rights are personal. And here McCoy failed to establish that his Fourth Amendment rights were violated. Instead, at the suppression hearing, McCoy stressed that he did not stay with his girlfriend in the apartment. Thus, he failed to show he had a legitimate expectation of privacy in the apartment. Additionally, we find the search was justified for two other independent reasons \\u2014 exigent circumstances and consent. So the drug evidence was properly admitted.\\n\\u00b63. McCoy also challenges the sufficiency of the evidence. He suggests the State failed to prove beyond a reasonable doubt that he possessed the drugs. To prove constructive possession, the State had to show McCoy knowingly exercised control over the drugs. And McCoy claims that, since he did not own or exclusively control the apartment, the State could not prove he knowingly controlled what was inside. But when McCoy, who was in the apartment at the time, realized police officers had knocked on the door and were interviewing his girlfriend, he broke for the bathroom and tried to slam the door. When officers followed, they found him hovering over the trash can where cocaine and baggies were later found. From this, combined with scales and a pistol found near his clothes in another room and the more than $1,200 in cash found in his pocket, we find a reasonable juror could conclude McCoy knowingly possessed cocaine intending to distribute it.\\n\\u00b6 4. Because we also find McCoy's right to a speedy trial was not violated and his claim of ineffective assistance of counsel cannot be evaluated on direct appeal, we affirm his conviction and sentence.\\nBackground\\nI. Events Leading to Arrest\\n\\u00b6 5. A confidential informant told the Hattiesburg Police Department that McCoy was selling drugs out of unit A-7 in Pineview Apartments. So officers went to the apartment for a \\\"knock and talk.\\\" This investigative method involves a knock on the door and a request to interview the resident. Sometimes this leads to a search of the premises if the resident consents.\\n\\u00b6 6. When the officers knocked, McCoy's girlfriend, Chante Robinson, answered the door. Chante lived in the apartment with her mother, Cynthia Robinson, who leased the apartment. While the officers were talking with Chante, McCoy walked into the living room. Officers noticed McCoy had his hands shoved into his pockets.\\n\\u00b6 7. When the officers asked if McCoy would speak to them too, McCoy darted to the bathroom and tried to shut the door. Fearing McCoy was either retrieving a weapon or destroying evidence, the officers ran into the bathroom. They found McCoy hovered over a trash can and escorted him outside of the apartment to wait with another officer.\\n\\u00b6 8. At this point, Cynthia and Chante gave permission to search the apartment. And inside the bathroom where McCoy had fled, the officers found a bag of cocaine in the trash can. They also found a cup containing small empty baggies. In Chante's bedroom, they found a set of scales, a gun, and brass knuckles. They arrested McCoy. During the search incident to arrest, they found more than $1,200 in cash in his pocket. McCoy was later indicted for possession of 2.7 grams of cocaine with the intent to distribute.\\nII. Suppression Hearing\\n\\u00b6 9. Before trial, McCoy's counsel filed a motion to suppress the evidence found in the apartment. He argued the officers' search was illegal because the \\\"knock and talk\\\" was merely a pretext to get around the Fourth Amendment's warrant requirement.\\n\\u00b6 10. At the suppression hearing, the two officers who knocked on the door testified they did not believe, based on the informant's tip, they had sufficient probable cause to obtain a warrant, hence the \\\"knock and talk.\\\" See United States v. Jones, 239 F.3d 716, 720 (5th Cir.2001) (recognizing the \\\" 'knock and talk' strategy as a reasonable investigative tool when officers seek to gain an occupant's consent to search or when officers reasonably suspect criminal activity\\\"); see also Kentucky v. King, \\u2014 U.S. -, 131 S.Ct. 1849, 1860, 179 L.Ed.2d 865 (2011) (recognizing law enforcement may have \\\"entirely proper reasons\\\" for not \\\"seeking] a search warrant as soon as the bare minimum of evidence needed to establish probable cause is acquired\\\").\\n\\u00b6 11. But when officers knocked, and as they were talking to Chante, exigent circumstances led them to enter the apartment. Based on McCoy's reaction, they believed he was either heading for a weapon or destroying evidence. So they ran after McCoy to stop him. The officers did not search the premises until Cynthia gave her written consent to search the apartment and Chante gave her verbal consent to search her bedroom.\\n\\u00b6 12. Cynthia, and Chante also testified at the hearing. Cynthia confirmed that, though the officers' presence made her nervous, she gave her consent to search \\\"freely\\\" because she \\\"didn't have anything to hide.\\\" However, Chante's testimony was more equivocal. While she agreed she had let the officers in when she answered the door, she said she only gave her consent to search her bedroom because the officers threatened her. She was unwavering, however, on the fact McCoy did not stay in the apartment with her. One of the officers had testified that Chante told him McCoy had been living in the apartment for several months. But Chante disagreed. She claimed she never said McCoy stayed there.\\n\\u00b6 13. McCoy's grandmother was also called to the stand. She testified that McCoy stayed with her, not Chante.\\n\\u00b6 14. The circuit judge sized up this testimony and concluded McCoy did not occupy the apartment with Chante and her mother. Consequently, he had no Fourth Amendment rights in the property he could claim were violated. The judge also found the person who did have rights\\u2014 Cynthia \\u2014 had freely consented to a search. So he denied McCoy's motion to suppress.\\nIII. Trial\\n\\u00b6 15. At trial, the same two officers testified for the State. They described the events that led to the seizure of the drugs, baggies, scales, gun, brass knuckles, and cash. All of these items were entered into evidence.\\n\\u00b6 16. The officers testified how McCoy had immediately run to the bathroom when he saw them talking to Chante. And they described how he tried to block them from the bathroom, and how they had found the cocaine in the trash can he was standing over. Both officers also mentioned that, as they were escorting McCoy out of the apartment, he yelled at Chante to \\\"hold up for your shit.\\\" They interpreted this as McCoy's instruction to Chante to claim the cocaine was hers.\\n\\u00b6 17. At the close of the State's evidence, McCoy moved for a directed verdict, which was denied. McCoy's only witness was his grandmother, who testified McCoy lived with her and only \\\"ever[y] now and then\\\" stayed overnight with Chante.\\n\\u00b6 18. The jury found McCoy guilty of possession of a controlled substance with intent to distribute. The court sentenced him as a habitual offender to life in the custody of the Mississippi Department of Corrections without the benefit or possibility of parole or early release. See Miss. Code Ann. \\u00a7 99-19-83 (Rev. 2007). McCoy immediately appealed. On appeal, he is represented by the Indigent Appeals Division (IAD) of the Office of State Public Defender. In addition to the IAD's brief, McCoy filed a supplemental pro se brief. See M.R.A.P. 28(b).\\nDiscussion\\nI. Motion to Suppress\\n\\u00b6 19. Both briefs suggest the items found in the apartment should have been suppressed. As McCoy and his appellate, counsel see it, this evidence was inadmissible \\\"fruit of the poisonous tree,\\\" obtained in violation of the Fourth Amendment. See Powell v. State, 824 So.2d 661, 667 (\\u00b627) (Miss.Ct.App.2002) (citing Jones v. State, 798 So.2d 1241, 1247 (\\u00b610) (Miss.2001)).\\n\\u00b6 20. While the exclusionary rule bars the use of evidence from unlawful seizures, Fourth Amendment rights are personal. Walker v. State, 913 So.2d 198, 225 (\\u00b6 90) (Miss.2005) (citing Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969)). What this means is that McCoy could only invoke the exclusionary rule if his Fourth Amendment rights were violated. See id. And under the circumstances here, we agree with the trial judge that McCoy had no Fourth Amendment right to prevent a search or seizure of his girlfriend's mother's apartment.\\nA. No Legitimate Expectation of Privacy\\n\\u00b6 21. As recently summed up by the Mississippi Supreme Court, \\\"[t]he Fourth Amendment of the U.S. Constitution and Article 3, Section 23 of the Mississippi Constitution protect[ ] occupants of a home from warrantless and nonconsensual entry by police.\\\" Cooper v. State, 145 So.3d 1164, 1174 (\\u00b6 33) (Miss.2014) (citing Minnesota v. Olson, 495 U.S. 91, 95, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). \\\"[T]o claim protection under the Fourth Amendment, a defendant must have a 'legitimate expectation of privacy in the invaded placet.]' \\\" Id. (quoting Olson, 495 U.S. at 95, 110 S.Ct. 1684). Fourth Amendment protection is \\\"typically restricted to those who rent, own, or otherwise reside in the dwelling.\\\" Id. McCoy argues he falls into the \\\"otherwise reside\\\" category, alleging he often stayed overnight with his girlfriend, Chante, in her mother's apartment. See Olson, 495 U.S. at 95, 110 S.Ct. 1684 (holding that an \\\"overnight guest\\\" has a reasonable expectation of privacy in his host's home). But the evidence he offered at the suppression hearing contradicts this claim.\\n\\u00b622. On appeal, McCoy shifts gears. He now relies on the officer's testimony that Chante told him that McCoy had been living in the apartment for several months. But when McCoy called Chante to the witness stand, she denied saying this. Instead, when questioned by both McCoy's counsel and the State, she consistently maintained McCoy did not stay in the apartment.\\n\\u00b6 23. McCoy also called his grandmother, whose brief testimony solely consisted of the fact that McCoy lived with her when he was arrested. Granted, the grandmother did later testify at trial that McCoy stayed with Chante \\\"ever[y] now and then.\\\" But this testimony came at the end of the trial, after the evidence found in the apartment had already been admitted by the judge. Further, this testimony did not establish McCoy was staying with Chante when the officers knocked on her door.\\n\\u00b624. McCoy's appellate counsel asks us to assume McCoy had been staying overnight in the apartment because he was dating Chante. But it was McCoy's burden to establish he had a Fourth Amendment right invaded by the search of the apartment. Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (citations omitted). And during the suppression hearing, instead of trying to establish his legitimate expectation of privacy in the apartment, McCoy tried to prove the opposite \\u2014 that he was not an occupant. This strategy of distancing himself from the apartment was no doubt to bolster his defense that he had no knowledge or control over the cocaine and contraband found there.\\n\\u00b6 25. Because McCoy failed to establish he had a legitimate expectation of privacy in the apartment, his .argument that the judge wrongly admitted the evidence found there also fails.\\nB. No Warrant Required Under the Circumstances\\n\\u00b6 26. But even if we did assume McCoy had been staying overnight with Chante during the time period of the search, his Fourth Amendment argument still falters. The presumption that a war-rantless entry into' a home to conduct a search or make an arrest is unreasonable has two notable exceptions \\u2014 exigent circumstances and consent. See Steagald v. United States, 451 U.S. 204, 211-12, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (citing Payton, 445 U.S. 573, 100 S.Ct. 1371; Johnson v. United States, 333 U.S. 10, 13-15, 68 S.Ct. 367, 92 L.Ed. 436 (1948)). And here we have both.\\n1. Exigent Circumstances\\n\\u00b6 27. \\\"It is well established that 'exigent circumstances,' including the need to prevent the destruction of evidence, permit police officers to conduct an otherwise permissible search without first obtaining a warrant.\\\" King, 131 S.Ct. at 1854-54 (emphasis added). So long as \\\"the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.\\\" Id. at 1858.\\n\\u00b628. Citing King, McCoy's appellate lawyer argues the officers could not rely on the exigent-circumstances doctrine because they had already violated the Fourth Amendment when the exigency arose by bullying their way into the apartment. But we see no police-created exigency. Chante testified she voluntarily opened the door. She said she did so even though she could not see through the peephole who was on the other side and the only word she heard from the officers was \\\"Hattiesburg.\\\" Though she.was surprised to find police officers at the door, she admitted she \\\"let them in\\\" and voluntarily answered their questions.\\n\\u00b6 29. When McCoy walked in on their interview, instead of refusing to speak to the officers or asking them to leave, he ran to the bathroom and tried to slam the door. ' See id. (\\\"Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.\\\"). The officers had gone to the apartment to follow up on a tip that McCoy was selling drugs out of the apartment. So it was reasonable for them to believe McCoy had run to the bathroom to destroy evidence. See id. at 1857 (\\\"Destruction of evidence issues probably occur most frequently in drug cases because drugs may be easily destroyed by flushing them down a toilet or rinsing them down a drain\\\"). Thus, we find the exigent circumstances justified the officers to enter the apartment to stop McCoy. And once in the bathroom, the officers were further justified to detain McCoy and escort him outside of the apartment.\\n2. Consent\\n\\u00b6 30. This brings us to the point in the sequence of events when the actual search \\u2014 the search McCoy claims was unlawful \\u2014 occurred. And what the record shows is that this search was only conducted after the officers obtained written consent from Cynthia, the apartment's leaseholder. So the \\\"fruit\\\" was not borne of a \\\"poisonous tree\\\" but rather from a legal search of the apartment. See Graves v. State, 708 So.2d 858, 863 (\\u00b6 23) (Miss.1997) (citations omitted) (\\\"A voluntary consent to. a search eliminates an officer's need to obtain a search warrant.\\\").\\n\\u00b6 31. In Powell, this court found the defendant had a legitimate expectation of privacy in his girlfriend's car. This was because he had permission to drive the car whenever he wanted and could exclude anyone from the car except his girlfriend and her father, the title holder of the vehicle. Powell, 824 So.2d at 664-65 (\\u00b6 15). But we still decided the defendant's Fourth Amendment rights were not violated when officers searched the vehicle. There was no constitutional violation because \\\"the State presented uncontested evidence that the [girlfriend, the] person given possession by the lawful owner[,] had consented to the search.\\\" Id. at 665 (\\u00b6 16), 667 (\\u00b6\\u00b6 27-28). We find the same to be true here. Even if McCoy had a legiti mate expectation of privacy in the apartment, he failed in his burden to show the search of the apartment violated his Fourth Amendment rights because the State offered uncontested evidence the apartment's lessee had consented to the search.\\n\\u00b632. Thus, we find no error in the denial of McCoy's motion to suppress.\\nII. Motion for Directed Verdict\\n\\u00b6 33. Nor do we find error in the denial of McCoy's motion for a directed verdict. A motion for a directed verdict challenges the sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (\\u00b6 16) (Miss.2005). And here, contrary to McCoy's assertions, we find the State's evidence was sufficient to support the charged cocaine offense.\\n\\u00b6 34. When considering the sufficiency of the evidence, we view all evidence in the light most favorable to the State. Id. This means we \\\"give the State the benefit of all favorable inferences reasonably drawn from the evidence.\\\" Grossley v. State, 127 So.3d 1143, 1147 (\\u00b6 10) (Miss.Ct.App.2013) (citing Jones v. State, 20 So.3d 57, 64 (\\u00b6 16) (Miss.Ct.App.2009)). Viewing the evidence in this manner, we ask whether \\\"any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\\\" Bush, 895 So.2d at 843 (\\u00b6 16) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).\\n\\u00b6 35. The essential element McCoy claims is missing was his possession of the drugs and other distribution-related items found in the apartment. He does not attack the sufficiency of the State's evidence of his intent to distribute cocaine.\\n\\u00b6 36. The State's theory was that McCoy constructively possessed the cocaine and baggies found in the bathroom, as well as the scales, brass knuckles, and gun found in Chante's bedroom. \\\"Possession of a controlled substance may be actual or constructive.\\\" Knight v. State, 72 So.3d 1056, 1063 (\\u00b6 26) (Miss.2011) (citing Dixon v. State, 953 So.2d 1108, 1112 (\\u00b6 9) (Miss.2007)). \\\"Constructive possession may be established where the evidence, considered under the totality of the circumstances, shows that the defendant knowingly exercised control over the contraband.\\\" Id. \\\"The defendant's proximity to the drugs is a factor in establishing constructive possession, but it is not determinative.\\\" Id. \\\"Other incriminating circumstances must be present to establish constructive possession.\\\" Id.\\n\\u00b6 37. McCoy claims that the State was only able to prove his proximity to the drugs. He insists no \\\"other incriminating circumstances\\\" were present because McCoy neither owned nor exerted exclusive control over the apartment. It is true that proving ownership or control over the premises are two Ways to support a constructive-possession theory. See id. But they are not the only ways. The supreme court has also \\\"affirmed a conviction based on constructive possession when . the defendant did not own the premises but was sufficiently tied to the drugs found there by . placing himself in the midst of items implicating his participation in the processing of the substance .\\\" Dixon, 953 So.2d at 1113 (\\u00b6 11) (emphasis added).\\n\\u00b6 38. Here, we find ample evidence that McCoy constructively possessed the cocaine. McCoy was seen with his hands stuffed into his pockets. Once he saw the police, he ran hard for the bathroom, slamming the door to keep the officers out. And when the'officers got to him, he was standing over the trash can where the drugs were found. This was more than mere proximity to the drugs. From this incriminating circumstance, it was reasonable for jurors to conclude McCoy was trying to hide or destroy drugs. This alone showed he had sufficient knowledge and control over the cocaine to have constructively possessed it.\\n\\u00b6 39. Further, his yelling to Chante, \\\"Hold up for your shit,\\\" shows his knowledge of drugs in the trash. And while the other drug-related items were found in another room, they were near where McCoy had stored some of his clothes, which could lead a reasonable juror to conclude he was also storing the scales, brass knuckles, and gun there. See Hemphill v. State, 566 So.2d 207, 209 (Miss.1990) (guns and scales are \\\"tools of the drug trade\\\" and generally relevant in drug cases); see also Martin v. State, 413 So.2d 730, 733-34 (Miss.1982). Further, McCoy had been found in actual possession of the cash. See United States v. Munoz, 957 F.2d 171, 174 (5th Cir.1992) (holding proof of intent to distribute the drugs may be inferred from the presence of \\\"large quantities of cash\\\").\\n\\u00b6 40. Thus, we find the evidence, when viewed in the light most favorable to the State, supports McCoy's conviction of possession of cocaine with intent to distribute.\\nIII. Speedy Trial\\n\\u00b6 41. In his pro se brief, McCoy additionally asserts his right to a speedy trial was violated. But we fail to see any violation, given the length of the delay and the fact McCoy never asserted his right to a speedy trial until now.\\n\\u00b642. Both the United States and Mississippi Constitutions guarantee the accused the right to \\\"a speedy and public trial.\\\" U.S. Const, amend. VI; Miss. Const. art. 3, \\u00a7 26. \\\"A formal indictment or information or an arrest\\u2014 whichever first occurs \\u2014 triggers\\\" this right. McBride v. State, 61 So.3d 138, 142 (\\u00b6 8) (Miss.2011) (citations omitted). Here, McCoy's March 31, 2012 arrest preceded his September 20, 2012 indictment. So for speedy-trial purposes, the clock began running on March 31, 2012. McCoy was tried on January 9, 2013 \\u2014 more than eights months later. And \\\"[i]n Mississippi, a delay of more than eight months is presumptively prejudicial.\\\" Id. at (\\u00b6 7). But the length of delay is only one of four factors that must be considered when a speedy-trial violation is alleged. See id. at (\\u00b6 5) (citing Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 38 L.Ed.2d 101 (1972)). This factor must be considered alongside the reason for delay, whether McCoy asserted his right to a speedy trial, and whether any prejudice resulted from the delay. See id. (listing the four-factor test from Barker, 407 U.S. at 530, 92 S.Ct. 2182).\\n\\u00b6 43. Here, the length of delay, though presumptively prejudicial, is just barely so \\u2014 only nine days over the presumptive threshold.\\n\\u00b6 44. The record is silent on the reason for the delay of eight months and nine days \\u2014 except it does show McCoy, who had been out on bail since his March arrest, was indicted by the grand jury in September, arraigned a month later in October, and tried three months later the following January.\\n\\u00b645. Why there is no explanation for the delay ties into the third factor \\u2014 the assertion of right. The Mississippi Supreme Court has said that, while \\\"[a]n accused has no duty to bring himself to trial[,] . he does have some responsibility to assert his right to a speedy trial.\\\" Id. at 144 (\\u00b6 20) (internal citations omitted). And the United States \\\"Supreme Court in Barker emphasized 'that failure to assert the right to a speedy trial will make it difficult for a defendant to prove that he was denied a speedy trial.' \\\" McBride, 61 So.3d at 144 (\\u00b620) (quoting Barker, 407 U.S. at 532, 92 S.Ct. 2182). During the eight months and nine days between his arrest and trial, McCoy never asserted his right to a speedy trial. Nor did he seek dismissal from the trial court based on the violation of his speedy-trial rights, which would have prompted the trial court's own Barker analysis and evi-dentiary hearing. McCoy claims he verbally asserted his right to a speedy trial as soon as he was arrested on March 31, 2012. But there is simply nothing in the record to support this.\\n\\u00b646. Finally, McCoy has not shown prejudice, though he has alleged it \\u2014 claiming that a witness with the potential to exonerate him died during the delay. McCoy claims this man visited the apartment right before the police showed up that day and \\\"very well may have left the alleged item(s) there in the waste basket of the bathroom/restroom.\\\" But this unidentified man's existence \\u2014 let alone his death \\u2014 is in no way verified from the record. Thus, McCoy has failed to establish his defense was hampered by the delay. And as McCoy was free on bail pending his trial, we find no actual prejudice by the delay.\\n\\u00b647. According to the supreme court, \\\"where the delay is neither intentional nor egregiously protracted, and there is an absence of actual prejudice to the defense, the balance is struck in favor of rejecting a speedy trial claim.\\\" Johnson v. State, 68 So.3d 1239, 1246 (\\u00b6 22) (Miss.2011) (quoting Stevens v. State, 808 So.2d 908, 918 (\\u00b629) (Miss.2002)). Because such is the case here, we reject McCoy's claim that his conviction should be reversed based on a violation of his right to a speedy trial.\\nIV. Ineffective Assistance of Counsel\\n\\u00b6 48. Lastly, McCoy has raised in his pro se brief a claim of ineffective assistance of counsel, alleging various deficiencies by his trial counsel. When a claim of ineffective assistance is raised on direct appeal, we will only consider its merits under two circumstances \\u2014 (1) where the parties have stipulated the record is adequate for us to make an independent finding or (2) where \\\"the record affirmatively shows ineffectiveness of constitutional dimensions[.]\\\" Gill v. State, 126 So.3d 128, 133-34 (\\u00b6 27) (Miss.Ct.App.2013) (quoting Colenburg v. State, 735 So.2d 1099, 1101 (\\u00b6 5) (Miss.Ct.App.1999)). In other words, the record must show counsel's performance was so constitutionally deficient and prejudicial that the trial court should have declared a mistrial sua sponte. See id. at 134 (\\u00b6 27) (citing Colenburg, 735 So.2d at 1102 (\\u00b6 8)).\\n\\u00b6 49. Here, the parties have not stipulated the record is adequate for us to address McCoy's claims. Nor can we see from the record any reason the trial judge should have been alerted to any deficiencies in counsel's performance. Therefore, we decline to address the issue of trial counsel's performance on direct appeal. We dismiss McCoy's claim without prejudice, leaving open the possibility to make these same assertions in a motion for post-conviction relief. See id. at (\\u00b6 30).\\n\\u00b6 50. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE AND SENTENCE AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE OR EARLY RELEASE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.\\nLEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.\\n. In the record, McCoy's girlfriend's name is spelled as both \\\"Chante\\\" and \\\"Shaunte.\\\" This opinion uses \\\"Chante\\\" \\u2014 the spelling used by McCoy.\\n. McCoy's indictment was amended to reflect McCoy's status as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2007).\\n. The State also called the officer who took the bag of cocaine from the apartment to the crime lab and the crime lab's forensic scientist, who confirmed the lab's test results that the bag contained 2.7 grams of cocaine.\\n. On direct examination, Chante testified:\\nQ: When [the officers] asked you, Does [McCoy] stay at the residence with you, and does he have clothes in there, you answered what?\\nA: I answered he has some clothes there.\\nQ: Okay. What did you answer with respect to him staying there?\\nA: He does not stay there.\\nAnd on cross-examination, she further said:\\nQ: [A]m I understanding you right, it's your testimony that Eddie McCoy did not reside there?\\nA; He does not. He did not stay there.\\nQ: He didn't stay there; he didn't receive mail there?\\nA: He did not receive mail there. They asked that same question. I told them no.\\nQ: Okay. Didn't receive mail there. So would he have the right to tell people that they couldn't come in, exclude other people from the premises?\\nA: He don't be there like that to even have to answer a question like that.\\n(Emphasis added).\\n. In his pro se brief, McCoy characterizes his removal from the bathroom as an arrest, which he claims was illegal because the officers had yet to find the evidence against him in the apartment. But at this point McCoy was merely being detained, based on the officers' reasonable suspicion that he had been dealing drugs, formed by the tip and McCoy's behavior when he saw the officers. See Singletary v. State, 318 So.2d 873, 876 (Miss.1975) (\\\"holding] that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest\\\"). While McCoy was detained, the officers gained consent to search the apartment and found the drugs McCoy was trying to destroy, along with the other incriminating items in the apartment. At this point, the officers then had probable cause to arrest McCoy. See id. (holding that \\\"[a]n arrest may be made only when the officer has probable cause\\\"). And based on this arrest, they were permitted to search McCoy's pockets, where they found the cash. See Williams v. State, 763 So.2d 202, 204 (\\u00b6 8) (Miss.Ct.App.2000) (citing United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973)) (\\\"There is no violation of the Fourth Amendment when a person, placed under lawful arrest, is subjected to a full search of his person.\\\").\\n. In his pro se brief, McCoy challenges the legitimacy of Cynthia's consent. He alleges she was not competent to consent because she was under the influence of prescription drugs at the time. But this argument totally relies on documents that are not part of the record and thus outside the scope of our consideration. See Keller v. State, 138 So.3d 817, 874 (\\u00b6 168) (Miss.2014) (citing Tanner v. State, 764 So.2d 385, 402 (\\u00b6 47) (Miss.2000)). What the record shows is that Cynthia testified at the suppression hearing that her consent had been \\\"freely given.\\\"\\n. As the Mississippi supreme court said in Dixon:\\nIn previous decisions, this Court has affirmed a conviction based on constructive possession when: (1) The defendant owned the premises where the drugs were found and failed to rebut the presumption that he was in control of such premises and the substances within; or (2) the defendant did not own the premises but was sufficiently tied to the drugs found there by (a) exerting control over the premises when he knew or should have known of the presence of the substance or (b) placing himself in the midst of items implicating his participation in the processing of the substance.\\nDixon, 953 So.2d at 1113 (\\u00b6 11). Further, the supreme court noted this list was not exhaustive. Id. at n. 2.\\n. While the jury heard evidence that the gun was registered to Chante, they also heard one of the officers testify Chante had bought the gun for McCoy.\"}" \ No newline at end of file diff --git a/miss/7013776.json b/miss/7013776.json new file mode 100644 index 0000000000000000000000000000000000000000..81782e107ac52dd553d45ff35a4efd077f9a9d10 --- /dev/null +++ b/miss/7013776.json @@ -0,0 +1 @@ +"{\"id\": \"7013776\", \"name\": \"In the Matter of the ADOPTION OF a Minor Child, A.S.E.L. V.S.P., Appellant v. M.J.W. and M.S.L., Appellees\", \"name_abbreviation\": \"V.S.P. v. M.J.W.\", \"decision_date\": \"2013-04-02\", \"docket_number\": \"No. 2011-CA-01438-COA\", \"first_page\": \"1243\", \"last_page\": \"1253\", \"citations\": \"111 So. 3d 1243\", \"volume\": \"111\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T17:29:38.344550+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before LEE, C.J., BARNES and FAIR, JJ.\", \"parties\": \"In the Matter of the ADOPTION OF a Minor Child, A.S.E.L. V.S.P., Appellant v. M.J.W. and M.S.L., Appellees.\", \"head_matter\": \"In the Matter of the ADOPTION OF a Minor Child, A.S.E.L. V.S.P., Appellant v. M.J.W. and M.S.L., Appellees.\\nNo. 2011-CA-01438-COA.\\nCourt of Appeals of Mississippi.\\nApril 2, 2013.\\nMatthew Shepherd Poole, Jackson, attorney for appellant.\\nRobert M. Logan, Jr., Newton, attorney for appellees.\\nBefore LEE, C.J., BARNES and FAIR, JJ.\", \"word_count\": \"5731\", \"char_count\": \"34234\", \"text\": \"BARNES, J.,\\nfor the Court:\\n\\u00b6 1. This appeal stems from a Newton County Chancery Court judgment where Vincent S. Parker's amended petition to set aside the adoption of his natural son, Andy, by Melanie J. Watkins and Mark S. Lewis, was dismissed with prejudice. On appeal, Parker argues that he cannot have his parental rights terminated, as he was never made a party to the adoption proceeding and did not receive notice, and that the chancellor erred in dismissing the case under Mississippi Rule of Civil Procedure 60(b) and Mississippi Code Annotated section 93-17-6 (Supp.2012). While it is undisputed that Parker did not receive formal notice of the adoption (and should have), this fact does not mean that the adoption is void, as Parker contends. Even if Parker had received notice, he did not meet the standard of demonstrating \\\"a full commitment to the responsibilities of parenthood\\\" under section 93-17-5(3), which would have allowed him, as an unwed father, to object to the adoption. Accordingly, we find no reversible error, and affirm the adoption of Andy and the termination of Parker's parental rights.\\nSTATEMENT OF FACTS AND PROCEDURAL HISTORY\\n\\u00b6 2. Dana Foster and Parker conceived a child, Andy, who was born out of wedlock on May 25, 2004. At the time, Dana was seventeen years old and Parker was nineteen years old. The couple never married, and Parker was not listed as the father on the birth certificate at the hospital. The certificate was never amended. During her pregnancy, Dana lived with Parker at his mother and step-father's mobile home in Brandon, Mississippi. Dana was unemployed, and Parker did seasonal work. Approximately six weeks after Andy's birth, Dana moved out of the residence because she and Parker were not getting along. She also suspected Parker was using drugs. Apparently, Dana did not keep in touch with Parker after she left.\\n\\u00b6 3. Dana moved to her father's mobile home in Richland, Mississippi, where she lived for about a week. Then, Dana and Andy moved in with Mark Lewis, Dana's brother (Andy's natural uncle), and Melanie Watkins, his wife, in Newton County, Mississippi, for approximately one month. After a \\\"little fuss,\\\" Dana moved back to her father's residence.\\n\\u00b6 4. Soon after, in August 2004, Melanie notified the Mississippi Department of Human Services (MDHS), alleging Andy was living in \\\"deplorable conditions\\\" at the mobile home of Dana's father. The Rankin County Youth Court appointed a guardian ad litem (guardian) on behalf of Andy. Dana told MDHS investigators that she wanted to give custody of Andy to Susie and Joe Kirk, friends of Dana's family and godparents to Andy. The Kirks were granted temporary custody, and in September 2004, MDHS concluded that there was no evidence of neglect by Dana. However, the youth court directed Dana to fulfill certain prerequisites before she would be eligible to have Andy returned to her.\\n\\u00b6 5. In November 2004, Melanie and Mark requested the youth court change Andy's custody from the Kirks to them. Melanie testified the Kirks had no objection to this change; thus, after a \\\"shelter hearing,\\\" Melanie and Mark were awarded temporary custody.\\n\\u00b6 6. In January 2005, Andy's first guardian recommended a petition for neglect against Dana be filed in the youth court, because she \\\"has not made progress in improving her ability to care for this child. Dana is bouncing from house to house, wherever anyone will let her stay.\\\" Additionally, the guardian reported Andy was \\\"thriving\\\" with Melanie and Mark. In March 2005, the youth court issued an order finding Andy neglected by Dana, and Andy remained in Melanie and Mark's custody.\\n\\u00b6 7. Also in March 2005, Melanie, with Andy, met Parker at a Waffle House in Brandon, Mississippi, and told him of her intent to adopt Andy. Melanie testified that Parker told her he thought the adoption was in Andy's best interest \\u2014 he did not \\\"need to be a father\\\" at the time, and did not want Dana to have custody.\\n\\u00b6 8. In April 2005, Dana signed a consent to Andy's adoption by Melanie and Mark, and to the termination of her parental rights. On October 26, 2005, a petition for adoption by Melanie and Mark was filed in the Newton County Chancery Court; Parker was not made a party to the proceedings. At this time, Parker's paternity had not been established because he had thus far ignored the youth court's recommendations to have a DNA test performed. On December 16, 2005, the final decree of adoption was entered.\\n\\u00b6 9. Nearly four years later, in September 2009, Dana filed a motion to set aside the adoption. Then, in late 2009, Dana approached Parker, asking him to file a petition to set aside the adoption. In May 2010, Parker filed such a petition, seeking custody of Andy, and Dana joined it. In the petition, Parker claimed Melanie and Mark committed fraud in bringing the adoption proceedings because they intentionally did not notify Parker. Also, he claimed Melanie and Mark conspired together, and coerced Dana into signing the adoption papers. Parker stated Melanie intentionally kept the child away from him and thwarted his efforts at paternity testing.\\n\\u00b6 10. In December 2010, the chancellor dismissed Dana's petition as untimely under Mississippi Code Annotated section 93-17-15 (Rev.2004) because her petition was not filed within six months of the adoption, but Parker's petition remained on the docket. In January 2011, the chancellor ordered paternity testing, and Parker complied. The test confirmed Parker is Andy's biological father. Also, Parker filed an amended petition to set aside the adoption. In it, he stated that he received no service of process or notice of the adoption.\\n\\u00b6 11. In April 2011, a guardian was appointed to represent Andy in the proceedings. The guardian filed a detailed report on all of the parties in July 2011. In his report, the guardian opined that while the adoption did not meet the minimum standards of due process, the fact that Parker had made no attempt to visit Andy from 2005 to 2010, even though he had telephone numbers and \\\"with just a little effort\\\" could have found Melanie, is \\\"a cliff rather than a hill for Mr. Parker to climb\\\" regarding termination of his parental rights. The guardian recommended that if parental rights were not terminated, Andy remain with Melanie and regular visitation start slowly with Parker, and he pay child support to Melanie.\\n\\u00b6 12. In July 2011, a hearing was held on Parker's petition to set aside the adoption. Melanie testified that she did not serve Parker the adoption petition or obtain consent from him in October 2005 because her attorney did not advise her to do so. Further, Parker had not been adjudicated Andy's father at that point. Melanie stated Dana did tell her Parker was the father; however, Melanie expressed her doubts, as Dana was dating several men at the time of Andy's conception. Melanie testified at no point did Parker make an attempt to visit or contact Andy.\\n\\u00b6 13. Mark testified that he and Melanie divorced in approximately 2007, and Melanie has full custody of Andy. Mark now lives in Nevada, and has only visited Andy four times since the divorce. Mark claimed he knew where Parker lived, but Melanie never asked for the information. Also, Parker had not asked him for information about Andy in the last five years.\\n\\u00b6 14. Parker testified that he provided financial support to Dana during her pregnancy, as Dana had no income. He also transported her to the doctor. He claimed he and Dana were engaged before she became pregnant. Once Dana and Andy moved out of his parents' mobile home in June 2004, approximately one month after Andy was born, Parker did not have much contact with her. Parker claimed not to have received summonses for the youth court proceedings, but found out about them through his mother, whom Dana had told about the proceedings. When he met Melanie at the Waffle House, he agreed to the adoption as long as he could visit Andy, but the record indicates he never did. Initially, Parker claimed he had no idea that the December 2005 adoption had taken place until \\\"a couple of years\\\" later, but on cross-examination he stated that he had knowledge of the adoption in May 2006. He was not served any summonses to appear in chancery court, and did not know in which county the adoption took place. He made an effort to communicate with Andy by calling and emailing Melanie, but denied knowing where she lived. He had not seen Andy since the Waffle House meeting over six years ago.\\n\\u00b6 15. On cross-examination, Parker admitted that he had made no attempt to have his name placed on Andy's birth certificate from the time of Andy's birth until his petition to set aside the adoption, or approximately six years. Importantly, Parker admitted that he had an \\\"arrangement\\\" with Dana \\u2014 she would pay for the adoption litigation, but she wanted visitation rights if Parker obtained custody of Andy. At the time of the hearing, Parker was married to another woman and had two other children. They resided at the mobile home in Brandon. Parker was a general laborer but unemployed, although he hoped to start a new job the following week.\\n\\u00b6 16. Dana testified that Parker supported her during the pregnancy \\u2014 he bought groceries, clothes, and a crib for Andy. She also stated he helped care for the baby. Dana claimed to thwart Parker's relationship with Andy by not giving him her new telephone number. Dana stated she left the house of Parker's parents because she suspected Parker was using marijuana and crystal methamphetamine \\u2014 a claim Parker denied. She also admitted that she was paying for this litigation, and if Parker received full custody, she hoped to receive visitation rights from Parker. Dana visited Andy occasionally until October 2009, when the visits ceased due to a conflict with Mark and Melanie. She was aware that Andy had been diagnosed with severe attention deficit hyperactivity disorder.\\n\\u00b6 17. Andy's guardian cross-examined all four witnesses. The investigative reports from the MDHS and the youth court proceedings from 2004 were entered into evidence, as well as the DNA paternity report from January 2011. At the conclusion of Parker's case, Melanie's counsel moved for dismissal under Rule 60(b) and for failure to satisfy the requirements of section 93-17-6.\\n\\u00b6 18. In August 2011, the chancellor issued a final judgment dismissing the petition, finding the petition was not filed within a reasonable time under Rule 60(b), and Parker failed to satisfy section 93-17-6's requirements regarding his commitment to the responsibilities of fatherhood. Parker's parental rights were terminated. Parker filed a motion to reconsider, which was denied. He then timely appealed and asserts the following: (1) as a matter of law, a father cannot have his parental rights terminated if he was never made a party to an adoption proceeding or served with process; (2) the chancellor erred in applying Rule 60(b) and section 93-17-6 to set aside the adoption; and (3) the chancellor abused his discretion in dismissing the case under Rule 60(b) and section 93-17-6.\\nANALYSIS OF THE ISSUES\\n\\u00b6 19. It is undisputed that Parker did not receive proper notice of the adoption. As Andy's biological father, he should have been made a party to the proceedings under section 93-17-5. However, this omission does not mean the adoption is void. The analysis hinges on whether Parker had the right, as an unwed father, to object to the adoption under section 93-17-6. The chancellor found Parker did not have this right, and there is substantial evidence supporting this finding in the record.\\n1. Notice\\n\\u00b6 20. Parker argues that the chancellor erred as a matter of law in terminating his parental rights and not setting aside the adoption because Melanie and Mark did not make him a party to the adoption in 2005. Also, he contends they deprived him of formal notice of the adoption, even though they knew of Parker's paternity and physical location. Parker alleges the chancellor failed to follow clear precedent and compulsory statutes on these matters. He also claims these omissions violated his constitutional rights to due process.\\n\\u00b6 21. This issue presents a question of law, which is reviewed de novo. In re Adoption of J.E.B., 822 So.2d 949, 951 (\\u00b6 4) (Miss.2002) (citing Dep't of Human Sens, v. Gaddis, 730 So.2d 1116, 1117 (\\u00b6 4) (Miss. 1998)). Additionally, we note generally the setting aside of an adoption decree is disfavored in Mississippi. See id. at 952 (\\u00b6 10) (citing Humphrey v. Pannell, 710 So.2d 392, 399 (\\u00b6 35) (Miss.1998)). There is a strong public policy declaration in Mississippi's adoption statutes for the finality of adoption decrees. In re Adoption of M.D.T., 722 So.2d 702, 705 (\\u00b6 12) (Miss.1998) (citing In re Adoption of R.M.P.C., 512 So.2d 702, 707 (Miss.1987)).\\n\\u00b6 22. It is well established that the United States Supreme Court has offered constitutional protection to the rights of unwed fathers who have tried to have relationships with their children. Stanley v. Illinois, 405 U.S. 645, 651-59, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), held for the first time that under certain circumstances, such as when the putative father has participated in the care and custody of his child, the Constitution protected an unwed father's parental rights. The Supreme Court clarified the rights of unwed fathers six years later in Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978), where the Court established the requirement of a meaningful relationship with the child, and not just proof of biology, in a putative father's attempt to set aside an adoption. In Quilloin, the appellant did not petition for legitimation of his child for eleven years, between the child's birth and the filing of the adoption petition. Id. at 249, 98 S.Ct. 549. The father failed to seek custody of the child, and never had significant responsibility for the child regarding supervision, education, and care. Id. at 247, 256, 434 U.S. 246. The Supreme Court held that the natural father's substantive rights under the Due Process Clause were not violated by applying the \\\"best interest of the child\\\" standard in this instance, and the adoption was affirmed. Id. at 254, 256, 98 S.Ct. 549. In Caban v. Mohammed, 441 U.S. 380, 392-94, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979), the Supreme Court concluded the unwed father, who had had custody of his children for several years and thereby established a significant, supportive relationship, should have the privilege of vetoing the adoption of his children, not merely receiving notice.\\n\\u00b6 23. Both parties note in their briefs that at one time section 93-17-5 did not entitle an unwed putative father any notice whatsoever of an adoption. In Smith v. Malouf 722 So.2d 490, 497 (\\u00b6 30) (Miss.1998) (impliedly overruled on other grounds), the Mississippi Supreme Court held that this notice provision of the statute was unconstitutional in light of United States Supreme Court authority. Smith held that a natural unwed father may, in certain circumstances, have a constitutional right to be notified or to withhold his consent to an adoption. Id. The Mississippi Legislature thereafter amended section 93-17-5(3), allowing a father to have the right to object to an adoption if he has demonstrated \\\"a full commitment to the responsibilities of parenthood\\\" within thirty days after the birth of the child. Smith, 722 So.2d at 494 n. 1. While Parker cites to several of these same United States Supreme Court cases found in Smith in support of his argument, he fails to note the main distinction with his case \\u2014 he provided no evidence of an attempt to have a substantial relationship with his child.\\n\\u00b6 24. The case before us presents an unusual set of circumstances regarding notice of the initial adoption proceedings in 2005. Undisputedly, Parker was not made a party or served with any formal notice. Yet these omissions do not automatically void the adoption, as Parker argues. The record indicates that Melanie placed Parker on notice that she intended to adopt Andy at their Waffle House meeting in March 2005, and he orally agreed to the adoption seven months before Melanie filed her petition. Dana consented to the adoption the next month, and in October 2005, Melanie and Mark filed their petition for adoption, noting that there had been no adjudication of paternity. Additionally, Parker admitted at the hearing in July 2011 that he had actual knowledge from Dana that the adoption had been finalized five months after the final decree, in May 2006, but did not file a petition to set aside until approximately four years later. Therefore, the record shows Parker had knowledge of the adoption, but not formal notice through service of process or publication.\\n\\u00b6 25. Pursuant to section 93-17-5(3), had Parker been made a party defendant to the adoption proceeding in October 2005, as an unwed father he would have been entitled to a determination of his \\\"full commitment to the responsibilities of parenthood.\\\" This determination was before the court at the hearing in July 2011, and will be discussed in the next section. As the United States Supreme Court cases cited above explain, constitutional protection is only provided to unwed fathers who demonstrate a supportive, significant relationship with the child. Caban, 441 U.S. at 392-94, 99 S.Ct. 1760; Quilloin, 434 U.S. at 256, 98 S.Ct. 549. Accordingly, the court's finding that Parker did not meet this standard, in effect, negates his right to constitutional protection of his relationship with Andy. Therefore, as a matter of law, the failure to give notice to Parker of the original adoption does not, in and of itself, constitute reversible error.\\n2. Mississippi Rule of Civil Procedure 60(b) and Mississippi Code Annotated section 93-17-6\\n\\u00b6 26. At the end of the hearing, Melanie's attorney argued that Parker's petition was in the nature of a Rule 60(b) motion to set aside what Parker argues is a void judgment \\u2014 the initial adoption decree of 2005. In contrast, Parker's attorney argued that the United States Constitution prevents casting the case solely as a Rule 60 matter, because Parker was never a party to the adoption. The chancellor determined that Melanie had moved for a dismissal of Parker's petition under Rule 60(b), and concluded that Parker's petition had not been filed within a \\\"reasonable time\\\" under Rule 60(b), and also failed under the statutory requirements of section 93-17-6. Therefore, he dismissed Parker's petition and terminated his parental rights.\\n\\u00b6 27. Parker contends that the chancellor improperly applied Rule 60(b) and section 93-17-6 to his petition. Alternatively, Parker claims that even if the chancellor was correct in applying these rules, he abused his discretion in dismissing Parker's claim under section 93-17-6.\\n\\u00b6 28. While Rule 60 was not the appropriate vehicle for dismissal of Parker's petition, the point is moot since Parker did not meet the standard regarding a \\\"full commitment to the responsibilities of parenthood\\\" under section 93-17-6.\\nA. Rule 60(b)\\n\\u00b6 29. Rule 60(b)(6) states, in pertinent part: \\\"On motion . the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . (6) any other reason justifying relief from judgment. The motion shall be made within a reasonable time .(Emphasis added.) The standard of review for \\\"a motion for relief under Rule 60(b) is limited to whether the trial court abused its discretion by ordering or denying relief.\\\" Iuka Guar. Bank v. Beard, 658 So.2d 1367,1373 (Miss. 1995) (citing January v. Barnes, 621 So.2d 915, 927' (Miss.1992)).\\n\\u00b6 30. In the chancellor's bench opinion regarding Rule 60(b), he noted Andy was one year and seven months old when adopted by Melanie and Mark. Parker filed his petition to set aside the adoption four years and five months after the adoption, when Andy was almost six years old. The chancellor found that under the circumstances, this was not within a \\\"reasonable time\\\" pursuant to Rule 60(b). From the testimony, Parker had known about the adoption for at least four years, since May 2006. During this time, Parker had not seen his son or attempted to visit him; so Andy would not remember anything about Parker. The chancellor noted that with very little effort Parker could have learned about the adoption even sooner, because he knew all of the parties.\\n\\u00b6 31. On appeal, Parker does not elaborate on a Rule 60(b) error; he only mentions it by way of his issue statements. In the adoptive parents' brief, however, they cite two cases that are instructive on denial of Rule 60(b) relief in an adoption context. In M.D.T., the natural parents petitioned to set aside the adoption nine years after signing their consent. M.D.T., 722 So.2d at 703 (\\u00b6\\u00b6 2-3). The natural parents made several arguments, including that the adoption was void, and thus their petition needed only be made within a \\\"reasonable time\\\" under Rule 60(b), and not six months under the statute of limitations. Id. at 705 (\\u00b6 15). The supreme court was unpersuaded, holding that even if \\\"a reasonable time\\\" were the correct standard, the petition filed nine years after entry of the adoption decree was not made within a \\\"reasonable time.\\\" Id. at (\\u00b6 16).\\n\\u00b6 32. In J.E.B., the natural father filed a petition to vacate the adoption three years after it was agreed upon, alleging it was void. J.E.B., 822 So.2d at 950-51 (\\u00b6 3). The supreme court reversed the chancery court's grant of the petition to vacate the adoption, reinstating the adoption. Id. at 953 (\\u00b6 15). Finding no jurisdictional defect with the adoption, the supreme court found the petition barred by the six-month statute of limitations. Id. The supreme court stated:\\n[The father/petitioner] should not now be heard, years later, to set aside the decree because it allowed him to retain his parental rights.... Finally, to the extent that he claims relief under Rule 60(b), he is likewise untimely. The motion, as to the allegations of fraud and misrepresentation[,] was not made within six months and as to other claims was not made \\\"within a reasonable time.\\\"\\nId.\\n\\u00b6 33. In each of these cases, the parents had, by their consents, been made parties to the original proceedings. In the case before us, Parker was not made a party defendant and did not file a consent to the adoption. Therefore, Rule 60(b), which \\\"relieve[s] a party . from final judg ment,\\\" is not applicable. The chancellor may, however, have considered the effect of Parker's delay in asserting his parental rights on Andy under doctrines of waiver or laches. While Rule 60(b) was not the proper vehicle, this is not dispositive of the case.\\nB. Mississippi Code Annotated Section 93-17-6\\n\\u00b6 34. The chancellor found that Parker failed to meet the statutory requirements of section 93-17-6 regarding his right to object to the adoption.\\n\\u00b6 35. This Court's scope of review is limited regarding a chancellor's findings of fact. They will not be overturned \\\"when supported by substantial evidence unless an erroneous legal standard is applied .\\\" In re B.N.N., 928 So.2d 197, 200 (\\u00b6 6) (Miss.Ct.App.2006) (quoting Grafe v. Olds, 556 So.2d 690, 692 (Miss.1990)). Additionally, we are reluctant to disturb findings of fact because \\\"[t]he credibility of the witnesses and the weight of their testimony, as well as the interpretation of evidence where it is capable of more than one reasonable interpretation, are primarily for the chancellor as the trier of facts.\\\" Rodriguez v. Rodriguez, 2 So.3d 720, 724 (\\u00b6 6) (Miss.Ct.App.2009) (quoting Rainey v. Rainey, 205 So.2d 514, 515 (Miss.1967)). However, the chancellor's \\\"interpretation and application of the law is reviewed under a de novo standard.\\\" Nichols v. Funderburk, 883 So.2d 554, 556 (\\u00b6 7) (Miss.2004) (citing Tucker v. Prisock, 791 So.2d 190, 192 (\\u00b6 10) (Miss.2001)).\\n\\u00b6 36. Section 93-17-6 reads, in part:\\n(1) Any person who would be a necessary party to an adoption proceeding under this chapter and any person alleged or claiming to be the father of a child born out of wedlock who is proposed for adoption or who has been determined to be such by any administrative or judicial procedure (the \\\"alleged father\\\") may file a petition for determination of rights as a preliminary pleading to a petition for adoption in any court which would have jurisdiction and venue of an adoption proceeding .\\n(3) The sole matter for determination under a petition for determination of rights is whether the alleged father has a right to object to an adoption as set out in Section 93-17-5(3).\\n(4) Proof of an alleged father's full commitment to the responsibilities of parenthood would be shown by proof that, in accordance with his means and knowledge of the mother's pregnancy or the child's birth, that he either:\\n(a) Provided financial support, including, but not limited to, the payment of consistent support to the mother during her pregnancy, contributions to the payment of the medical expenses of pregnancy and birth, and contributions of consistent support of the child after birth; that he frequently and consistently visited the child after birth; and that he is now uniting and able to assume legal and physical care of the child; or\\n(b) Was willing to provide such support and to visit the child and that he made reasonable attempts to manifest such a parental commitment, but was thwarted in his efforts by the mother or her agents, and that he is now willing and able to assume legal and physical care of the child.\\n(Emphasis added.)\\n\\u00b6 37. The chancellor noted that before Parker could enjoy certain statutory protections as an unwed father, including his right to object to the child's adoption, he had to prove a commitment to parenthood as explained in Section 93-17-6(4); namely, that he established a \\\"substantial relationship\\\" with the child. As authority, the chancellor pointed to the United States Supreme Court's Caban, which established this standard for a putative father. See Caban, 441 U.S. at 393-94, 99 S.Ct. 1760.\\n\\u00b6 38. Parker argues that the chancellor erred \\u215b applying section 93-17-6 because it was not \\\"compulsory\\\" that Parker file a petition for determination of rights \\u2014 Parker's petition objecting to the adoption was permissible under the statute. Parker claims any petition to determine rights under section 93-17-6 would have had to have been filed prior to the grant of adoption. However, Parker misconstrues the statute's application. The chancellor was not penalizing Parker for not petitioning for a determination of rights, but analyzing the factors found in section 93-17-6(4) to determine if Parker could come to court and object to the adoption. Therefore, the chancellor did not err in applying the statute.\\n\\u00b6 39. The chancellor made the following factual findings related to his analysis of section 93-17-6(4). Parker had proof of Dana's pregnancy and Andy's birth, but they were in a relationship for \\\"convenience purposes.\\\" They never married, but lived together at Parker's parents' home for three to six weeks, at which point she left because Parker was not helping to care for the infant. Of note was the fact Melanie's residence in Decatur was approximately thirty miles from Brandon, where Parker resides, yet Parker claimed Melanie absconded with the child. Further, Parker testified that he was not presently in a position to pay child support. The chancellor did not find Dana's testimony credible because she contradicted herself at the hearing, as well as contradicted her testimony from an earlier deposition. And the chancellor found Parker's testimony was \\\"suspect at best, . trfying] to say what he needed to say to establish a relationship.\\\" The chancellor concluded:\\n[Tjestimony has not shown that Mr. Parker has consistently provided support for the child, consistently tried to visit with the child. It does not show anything about him contributing any money towards medical expenses or the cost of the birth of the child.... There is no testimony that he is now willing and able to assume physical care for this child.... There is also no testimony that Mr. Parker made any reasonable diligent efforts to try to locate this child, to try to visit with the child, spend time with the child, and . the testimony has established that without Dana['s] bringing him into this [litigation,] he wouldn't be here today.... She originally also was a party trying to set aside the adoption, but her case [was] dismissed because she signed a consent, and it was years, years later. The statute of limitations had run on her prior to the time she filed her complaint. So, once she was dismissed, then it all fell on Mr. Parker. He had to be the horse that everybody was riding. The trouble is it's at best a three-legged horse.\\n\\u00b6 40. On appeal, Parker argues that testimony showed Dana \\\"absconded\\\" with Andy when he was an infant, and intentionally deprived Parker from visiting him. After examining the record, we are not persuaded by this interpretation of the evidence. Further, our standard of review requires us to defer to the chancellor's interpretation of the evidence as well as the weight and credibility of the witnesses. See Rodriguez, 2 So.3d at 724 (\\u00b6 6).\\n\\u00b6 41. Parker exhibited no interest in asserting his paternal rights until he was approached by Dana over four years after the adoption. Dana confirmed Parker's testimony that she was paying for the litigation to set aside the adoption in the hope that if Parker won, she could obtain visitation rights. We note Parker did nothing to prevent Andy, in his infancy, from being adjudicated \\\"neglected\\\" by the youth court. Moreover, Parker did ve\\u00a5y little for Dana during the pregnancy or thereafter. In sum, he did not demonstrate actions indicative of any commitment to Andy, much less the required showing of a \\\"full commitment to the responsibilities of parenthood.\\\"\\n\\u00b6 42. This issue is without merit.\\nC. Termination of Parental Rights\\n\\u00b6 43. Parker's parental rights were terminated in the chancellor's judgment of August 2011. Parker does not make a separate argument regarding the termination, outside of his arguments above. Accordingly, we shall not address this issue.\\n\\u00b6 44. THE JUDGMENT OF THE CHANCERY COURT OF NEWTON COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.\\nLEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ\\\" CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.\\n. Pseudonyms are used in this opinion, rather than the parties' names, in order to protect the identity of the child who is the subject of the adoption petition.\\n. The relevant statute regarding parties to an adoption proceeding and notice is Mississippi Code Annotated section 93-17-5 (Rev.2004), which states in pertinent part:\\n(1) There shall be made parties to the proceeding by process or by the filing therein of a consent to the adoption proposed in the petition, which consent shall be duly sworn to or acknowledged and executed only by the following persons . :(a) the parents, or parent, if only one (1) parent, though either be under the age of twenty-one (21) years\\n(3) In the case of a child born out of wedlock, the father shall not have a right to object to an adoption unless he has demonstrated, within the period ending thirty (30) days after the birth of the child, a full commitment to the responsibilities of parenthood. Determination of the rights of the father of a child born out of wedlock may be made in proceedings pursuant to a petition for determination of rights as provided in Section 93-17-6.\\n(4) If such consent be not filed, then process shall be had upon the parties as provided by law for process in person or by publication, if they be nonresidents of the state or are not found therein, after diligent search and inquiry, or are unknown after diligent search and inquiry .\\n(Emphasis added.)\\n.Section 93-17-6 sets out the procedure for a determination of rights of fathers of children born out of wedlock, and whether they can object to an adoption of such children.\\n. Melanie continued to reside in Decatur, Mississippi, after the divorce, and is Andy's sole provider.\\n. However, we note Parker attended only one of the youth court's hearings about Andy, but it is unclear from the record which one.\\n. Section 93-17-6(4) states that \\\"proof of an alleged father's full commitment to the responsibilities of parenthood\\\" would be shown in financial support to the mother and child, or visiting the child.\\n. Section 93-17-6 gives an unwed father, such as Parker, the right to petition for determination of his rights as a putative father, and whether he could object to the adoption. Parker failed to take advantage of this procedure, just as he initially refused to take advantage of the paternity tests ordered by the youth court. Importantly, Parker delayed confirming his paternity for several years after the child was born. Testimony shows Parker ignored court recommendations for DNA paternity testing, but he finally complied in January 2011, over five years after the child was born.\\n. Rule 60(b) states that the \\\"rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.\\\" Since Parker is not a party to the judgment, Rule 60(b), including its requirement that the motion be filed within a reasonable time, is not applicable. See also Morrel v. Nationwide Mut. Fire Ins. Co., 188 F.3d 218, 222 (4th Cir.1999) (\\\"[A] motion for relief under Rule 60(b) . may be brought only by, or on behalf of, a party to the action that generated the contested judgment[.]\\\"); United States v. 8136 S. Dobson Street, Chicago, Ill., 125 F.3d 1076, 1082 (7th Cir.1997) (person seeking relief from a judgment under Rule 60(b) \\\"must have been a party\\\").\"}" \ No newline at end of file diff --git a/miss/7014673.json b/miss/7014673.json new file mode 100644 index 0000000000000000000000000000000000000000..0a226cff9e5e6ec8dde19707455f86209ef2d7e7 --- /dev/null +++ b/miss/7014673.json @@ -0,0 +1 @@ +"{\"id\": \"7014673\", \"name\": \"Walter Lee TAYLOR, Appellant v. Willie M. GALLOWAY and Lucille S. Galloway, Appellees\", \"name_abbreviation\": \"Taylor v. Galloway\", \"decision_date\": \"2012-12-11\", \"docket_number\": \"No. 2011-CA-01378-COA\", \"first_page\": \"1160\", \"last_page\": \"1171\", \"citations\": \"105 So. 3d 1160\", \"volume\": \"105\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T18:38:12.535793+00:00\", \"provenance\": \"CAP\", \"judges\": \"BARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT. RUSSELL, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., IRVING, P.J., AND MAXWELL, J.\", \"parties\": \"Walter Lee TAYLOR, Appellant v. Willie M. GALLOWAY and Lucille S. Galloway, Appellees.\", \"head_matter\": \"Walter Lee TAYLOR, Appellant v. Willie M. GALLOWAY and Lucille S. Galloway, Appellees.\\nNo. 2011-CA-01378-COA.\\nCourt of Appeals of Mississippi.\\nDec. 11, 2012.\\nPaul E. Rogers, Jackson, attorney for appellant.\\nJames L. Martin, Madison, attorney for appellees.\", \"word_count\": \"5307\", \"char_count\": \"31908\", \"text\": \"GRIFFIS, P.J.,\\nfor the Court:\\n\\u00b6 1. Willie M. Galloway and Lucille S. Galloway filed a complaint against Walter Taylor for damages under Mississippi Code Annotated section 95-5-10 (Rev. 2004), commonly referred to as the Mississippi timber trespass statute. The County Court of Madison County, Mississippi, entered a judgment in favor of the Galloways for compensatory damages, statutory damages, and court costs, including attorney's fees. In this appeal, Taylor asserts three issues: (1) whether a statement made by Taylor's father to Taylor was erroneously excluded as hearsay; (2) whether the county court erred when it directed a verdict on the issue of statutory damages under section 95-5-10(2); and (8) whether the county court erred in the award of court costs, including attorney's fees. We affirm in part and reverse and remand in part.\\nFACTS\\n\\u00b6 2. On April 20, 2009, the Galloways filed a complaint against Taylor for the unlawful cutting of timber on 3.92 acres of their property, without their permission, in violation of Mississippi Code Annotated section 95-5-10. On June 10, 2009, Taylor filed an answer and counterclaim. Taylor asserted a claim to the subject property based on adverse possession.\\n\\u00b6 3. The county court held a jury trial on July 19 and 20, 2010. At the conclusion of the evidence, the Galloways made a motion for a directed verdict as to Taylor's counterclaim for adverse possession. The county court granted a directed verdict and dismissed Taylor's counterclaim for adverse possession.\\n\\u00b6 4. The Galloways also made a motion for a directed verdict for the unlawful cutting of trees without consent and for the assessment of statutory damages on the basis that Taylor's actions were willful and in reckless disregard for the Galloways' rights. The county court granted the directed verdict and concluded that the Gal-loways were the owners of the subject property, and Taylor cut timber on the subject property without the Galloways' consent. As a result, the court found that Taylor was liable for compensatory damages and statutory damages under section 95-5-10(1) and (2).\\n\\u00b6 5. The county court judge submitted to the jury the determination of the fair market value of the cut timber. The jury concluded that the fair market value of the cut timber was $17,425.64, and this amount was awarded to the Galloways as compensatory damages under section 95-5-10(1). The issue of statutory damages was not submitted to the jury. The county court determined that reasonable jurors could not have arrived at a verdict in favor of Taylor on the issue of whether he cut the Galloways' timber willfully and in reckless disregard for their rights.\\n\\u00b6 6. On July 30, 2010, the county court entered a final judgment. The Galloways were awarded $17,425.64 in compensatory damages and $43,010 in statutory damages, for a total of $60,435.64.\\n\\u00b6 7. On August 9, 2010, Taylor filed a motion for reconsideration, a motion for a new trial, and a motion for a judgment notwithstanding the verdict. The county court denied these motions. On August 30, 2010, the Galloways filed a motion for court costs under section 95-5-10(3). By order dated September 9, 2010, the county court awarded the Galloways $15,378.51 in court costs, which included the Galloways' attorney's fees.\\n\\u00b6 8. Taylor timely appealed to the Madison County Circuit Court. On August 26, 2011, the circuit court entered an opinion and order that affirmed the county court's judgment. It is from the circuit court's judgment that Taylor now appeals.\\nANALYSIS\\n\\u00b6 9. This case presented a claim for damages under the Mississippi timber trespass statute, Mississippi Code Annotated section 95-5-10, which provides:\\n(1) If any person shall cut down, deaden, destroy or take away any tree without the consent of the owner of such tree, such person shall pay to the owner of such tree a sum equal to double the fair market value of the tree cut down, deadened, destroyed or taken away, together with the reasonable cost of reforestation, which cost shall not exceed Two Hundred Fifty Dollars ($250.00) per acre. The liability for the damages established in this subsection shall be absolute and unconditional and the fact that a person cut down, deadened, destroyed or took away any tree in good faith or by honest mistake shall not be an exception or defense to liability. To establish a right of the owner prima facie to recover under the provisions of this subsection, the owner shall only be required to show that such timber belonged to such owner, and that such timber was cut down, deadened, destroyed or taken away by the defendant, his agents or employees, without the consent of such owner. The remedy provided for in this section shall be the exclusive remedy for the cutting down, deadening, destroying or taking away of trees and shall be in lieu of any other compensatory, punitive or exemplary damages for the cutting down, deadening, destroying or taking away of trees but shall not limit actions or awards for other damages caused by a person.\\n(2) If the cutting down, deadening, destruction or taking away of a tree without the consent of the owner of such tree be done willfully, or in reckless disregard for the rights of the owner of such tree, then in addition to the damages provided for in subsection (1) of this section, the person cutting down, deadening, destroying or taking away such tree shall pay to the owner as a penalty Fifty-Five Dollars ($55.00) for every tree so cut down, deadened, destroyed or taken away if such tree is seven (7) inches or more in diameter at a height of eighteen (18) inches above ground level, or Ten Dollars ($10.00) for every such tree so cut down, deadened, destroyed or taken away if such tree is less than seven (7) inches in diameter at a height of eighteen (18) inches above ground level, as established by a preponderance of the evidence. To establish the right of the owner prima facie, to recover under the provisions of this subsection, it shall be required of the owner to show that the defendant or his agents or employees, acting under the command or consent of their principal, willfully and knowingly, in conscious disregard for the rights of the owner, cut down, deadened, destroyed or took away such trees.\\n(8) All reasonable expert witness fees and attorney's fees shall be assessed as court costs in the discretion of the court.\\n\\u00b6 10. The Galloways asserted a claim for compensatory damages under subsection (1). If a person trespasses on the land of another and cuts any timber, the trespasser shall be responsible to the owner for damages in the amount of \\\"double the fair market value of the tree cut down\\\" and the \\\"reasonable cost of reforestation.\\\" Miss.Code Ann. ? 95-5-10(1). The Gallo-ways may recover under subsection (1) if they prove that they own the land and that Taylor, or his agent, cut trees off their land. Subsection (1) specifically provides that \\\"liability for the damages established in this subsection shall be absolute and unconditional!,] and the fact that a person cut down, deadened, destroyed or took away any tree in good faith or by honest mistake shall not be an exception or defense to liability.\\\"\\n\\u00b6 11. The county court judge directed a verdict to grant the Galloways' claim for compensatory damages under section 95-5-10(1). The amount of the fair market value of the cut timber was presented to the jury, and the jury returned a verdict in the amount of $17,425.64. In the final judgment, the county court awarded compensatory damages under section 95-5-10(1) in this amount. Taylor does not challenge this award in this appeal. However, this claim is essential to our consideration of the first issue.\\n\\u00b6 12. The Galloways also asserted a claim for statutory damages under subsection (2). If the cutting is done \\\"without the consent of the owner of such tree [and is] done willfully, or in reckless disregard for the rights of the owner of such tree, then in addition to the damages provided for in subsection (1) of this section, the person cutting down . shall pay to the owner . a penalty\\\" based on the number and sizes of the trees cut. Miss.Code Ann. \\u00a7 95-5-10(2). However, for the Galloways to recover the statutory damages, the statute requires that they prove that Taylor acted \\\"willfully and knowingly, in conscious disregard for the rights of the owner,\\\" when he \\\"cut down, deadened, destroyed or took away such trees.\\\" Id. Unlike subsection (1), statutory damages under subsection (2) could not be recovered if the person who cut the tree was under \\\"good faith or . honest mistake\\\" when he cut the tree. Miss.Code Ann. \\u00a7 95 \\u2014 5\\u201410(1)\\u2014 (2). As to this claim, the county court judge directed a verdict on the claim and awarded damages in the amount of $43,010.\\n\\u00b6 13. The Galloways also asked the court to assess court costs, which include expert-witness fees and attorney's fees, under subsection (3). See Miss.Code Ann. \\u00a7 95-5-10(3). The county court judge awarded court costs in the amount of $15,378.51.\\n\\u00b6 14. With this overview in mind, we address the issues raised by Taylor.\\nI. The county court committed prejudicial error by not allowing Taylor's testimony of conversations with his father.\\n\\u00b6 15. Taylor argues in his first issue that the county court committed reversible error when it refused to allow Taylor to testify about his conversations with his father.\\n\\u00b6 16. At trial, Taylor's counsel asked Taylor about discussions between Taylor and his father. It was apparent that Taylor intended to testify that his father had told him that one day Taylor would own the property in question. When Taylor's counsel began to ask Taylor about his discussions with his father, the Galloways' counsel objected on the ground that such evidence would be hearsay. Taylor's counsel offered the county court judge no explanation as to why the testimony was not hearsay or would otherwise be properly admitted into evidence. The trial judge sustained the objection, and Taylor was not allowed to testify about his conversations with his father.\\n\\u00b6 17. On appeal, Taylor argues that the testimony was not offered to prove the truth of the matter asserted. Hence, he argues that the testimony did not meet the definition of hearsay under Mississippi Rule of Evidence 801(c). 'We review a trial court's ruling regarding the admission or exclusion of evidence under an abuse-of-discretion standard of review.\\\" Hester v. Samples, 74 So.3d 383, 388 (\\u00b6 19) (Miss.Ct.App.2011).\\n\\u00b6 18. It is important to put this argument in context. Taylor does not claim that this evidence would support his de fense to the Galloways' claim for compensatory damage, under section 95-5-10(1). Instead, for the first time in this appeal, Taylor claims that this testimony would be:\\nAn important element of [TaylorJ's defense to [the Galloways'] claim for additional punitive damages under Miss. Code. Ann. \\u00a7 95-5-10(2) [was] that he acted in good faith and not willfully or in reckless disregard for [the Galloways'] rights was testimony regarding that his belief of ownership originated from a conversation between he and his father in 1956 that the subject property belonged to [Taylor]'s father and would be his after his father died.\\nThus, Taylor argues that any statement made by his father that indicated that Taylor would one day own the subject property after his father's death was not hearsay, because the conversation was not offered to prove Taylor's ownership of the property but was offered to show Taylor's good-faith belief that he owned the property-\\n\\u00b6 19. As to the Galloways' claim for compensatory damages under section 95-5-10(1), the only issue was who was the legal owner of the property where the trees were cut. Taylor's testimony about his father's statement would have been offered to rebut the Galloways' claim of ownership. Such testimony of what Taylor's father told him about the ownership of the land would certainly be hearsay when offered for this purpose. \\\"Hearsay\\\" is defined as \\\"a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.\\\" M.R.E. 801(c). The trial judge was correct to exclude Taylor's testimony that his father told him he would one day own the property because such an out-of-court statement would have been offered \\\"to prove the truth of the matter asserted,\\\" i.e., ownership. Under Mississippi Rule of Evidence 802, such hearsay would not be admissible.\\n\\u00b620. However, if the testimony was offered to rebut the claim for statutory damages under section 95-5-10(2), the result could be different. The claim for statutory damages required the jury to consider Taylor's subjective belief that he owned the property. As to this claim, it would have been proper for Taylor to testify about his father's out-of-court statement for the nonhearsay reason that it was offered to prove Taylor had a good-faith reason to believe that he owned the property.\\n\\u00b6 21. Unfortunately, at trial, Taylor's counsel offered no response to the Galloways' objection. In fact, Taylor's counsel did not even argue that he sought to elicit this testimony for a nonhearsay purpose. Had Taylor's counsel offered such a response, the trial judge would have had an opportunity to admit the out-of-court statement for its proper purpose, with a limiting instruction. Taylor's coun sel made no such request or argument before the trial judge.\\n\\u00b6 22. Taylor now claims the trial judge was in error, but this matter was not presented to the trial judge. Taylor's counsel could have offered the disputed evidence for a nonhearsay purpose or asked the court to \\\"restrict the evidence to its proper scope and instruct the jury accordingly,\\\" but Taylor's counsel did neither. M.R.E. 105. As a result, we conclude that the trial judge was not in error in the decision to sustain the objection. Had Taylor's counsel argued and offered the testimony for a nonhearsay purpose, under Rule 105, our conclusion may be different. The matter argued on appeal was not properly presented to the trial judge and not preserved for appellate review. Based on the manner in which the testimony was presented, the trial judge's ruling to exclude the evidence was correct. We find no error and affirm the trial court's decision as to this issue.\\nII. Whether the county court erred by entering a directed verdict on the issue of statutory damages under Mississippi Code Annotated section 95-5-10(2) instead of submitting the issue to the jury.\\n\\u00b6 23. Taylor argues in his second issue that the county court committed reversible error when it granted a directed verdict in favor of the Galloways as to statutory damages under section 95-5-10(2). Taylor asserts that this is error because he presented evidence of his good-faith belief that he actually owned the property.\\n\\u00b624. \\\"This Court reviews the trial court's grant or denial of a motion for a directed verdict under a de novo standard of review.\\\" Ryals v. Bertucci, 26 So.3d 1090, 1094 (\\u00b6 16) (Miss.Ct.App.2009). \\\"In conducting such a review, we 'must decide whether the facts presented, together with any reasonable inferences, considered in the light most favorable to the nonmoving party, point so overwhelmingly in favor of the movant that reasonable jurors could not have returned a verdict for the plaintiff.' \\\" Id. (quoting Troupe v. McAuley, 955 So.2d 848, 858 (\\u00b6 28) (Miss.2007)).\\n\\u00b6 25. To award statutory damages under section 95-5-10(2), the cutting must have been done \\\"willfully, or in reckless disregard for the rights of the owner of such tree.\\\" Further, section 95-5-10(2) specifically states what proof the Gallo-ways must offer:\\nTo establish the right of the owner pri-ma facie, to recover under the provisions of this subsection, it shall be required of the owner to show that the defendant or his agents or employees, acting under the command or consent of their principal, willfully and knowingly, in conscious disregard for the rights of the owner, cut down, deadened, destroyed or took away such trees.\\n\\u00b6 26. Taylor argues that the county court erred when it granted a directed verdict on statutory damages and failed to submit this issue to the jury. Taylor claims that he submitted evidence that he did not act willfully or in reckless disregard for the Galloways' rights. We agree. Taylor's own testimony was sufficient to show that he did not act \\\"in conscious disregard for the rights of the owner,\\\" the Galloways. Taylor presented evidence that he believed he was the actual owner of the subject property. Thus, because there was conflicting evidence over whether Taylor acted willfully or in reckless disregard for the Galloways' rights, the issue should have been presented to the jury.\\n\\u00b6 27. The property in dispute was 3.92 acres of land that is located on the west side of Mt. Pilgram Road in Madison County, Mississippi. At trial, the parties disputed who owned the subject property. It was established that the Galloways were the actual owners, as evidenced by a warranty deed dated October 3, 1972. This fact is not disputed on appeal.\\n\\u00b6 28. Taylor testified that he believed that he owned the subject property. He asserts that this belief was a good-faith belief and negates any willfulness or reckless disregard for the Galloways' rights. Taylor's belief of ownership is based on his history of familial land ownership immediately adjacent to and surrounding the subject property. Taylor's grandfather owned several acres on the west and east sides of Mt. Pilgram Road. In 1954, Taylor's grandfather partitioned all of his property among his five children: parcel one went to Jerry Taylor, Taylor's father; parcel two went to Bessie Taylor B organ, Taylor's aunt; parcel three went to Mattie Taylor Shaw, Taylor's aunt; parcel four went to Willie Taylor, Taylor's uncle; and parcel five went to Emma Taylor Stewart, Taylor's aunt. Parcels four and five were on the west side of Mt. Pilgram Road, while the remaining parcels were on the east side of the road. In 1965, Taylor was deeded his father's property (parcel one), all of which was on the east side of Mr. Pilgram Road. Taylor testified that he believed he owned the subject property because he was born on the subject property in 1931, and he frequently played on the property as a child.\\n\\u00b6 29. In 2008, Taylor was preparing to sell portions of his property. He hired Kenneth Reese to survey his property, which Taylor thought included the subject property. Reese informed Taylor that he could not find any record evidence that Taylor owned the subject property.\\n\\u00b6 30. Nevertheless, on May 12, 2008, Taylor entered into a logging contract with Henson Logging to log the subject property along with another piece of property. Harold Henson paid Taylor for the timber Henson cut and removed from the subject property. According to the Galloways, the fact that Taylor was told there was no record evidence of Taylor owning the subject property is indicative of his willfulness or reckless disregard for their rights.\\n\\u00b6 31. Certainly, the Galloways may be correct. However, this issue should have been presented to a jury because Taylor presented conflicting evidence that he believed \\u2014 in good faith \\u2014 he owned the subject property. \\\"Credibility determination[s], the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict.\\\" Garner v. Hickman, 733 So.2d 191, 194-95 (\\u00b6 13) (Miss.1999) (citation omitted). \\\"The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.\\\" Id. Because there was enough conflicting evidence as to whether Taylor acted willfully or in reckless disregard for the Galloways' ownership rights, the issue of statutory damages should have been submitted to the jury.\\n\\u00b6 32. As a result, we reverse the award of statutory damages under section 95-5-10(2) and remand the case to the circuit court for a new trial on statutory damages. On remand, the circuit court shall have a jury determine whether statutory damages should be assessed against Taylor, and if so, the amount of such damages.\\nIII. Whether the county court erred in awarding the Galloways' court costs, including attorney's fees, under Mississippi Code Annotated section 95-5-10(3).\\n\\u00b6 33. In his final issue, Taylor argues that the county court committed reversible error when it awarded court costs and attorney's fees. Section 95-5-10(3) provides that \\\"[a]ll reasonable expert witness fees and attorney's fees shall be assessed as court costs in the discretion of the court.\\\" This provision gives a \\\"trial judge discretion to award expert witness fees and attorneys' fees to a litigant who prevails on a claim of cutting of timber.\\\" Stockstill v. Gammill, 943 So.2d 35, 49 (\\u00b6 29) (Miss.2006) (citation omitted). Our supreme court has ruled:\\nWith the sole exception of punitive damages cases, in the absence of contractual provision or statutory authority therefor, this Court has never approved awarding trial expenses and attorney's fees to the successful litigant. It has consistently been our view that such expenses are not allowable as part of the costs. Even where legal counsel for plaintiff unnecessarily put the opposing side to extra legal and trial expenses[,] we refused to permit an award of attorney's fees.\\nId. (quoting Grisham v. Hinton, 490 So.2d 1201, 1205 (Miss.1986)). Further, in Stockstill, our supreme court held that a trial judge properly refused to award court costs and attorneys' fees where the cutting of timber was done by mistake, and no statutory damages were awarded. Id. at 49-50 (\\u00b6\\u00b6 29-30).\\n\\u00b6 34. Because we reverse and remand the issue of statutory damages under section 95-5-10(2), we also reverse and remand the issue of court costs and attorney fees. We make no finding as to whether such costs should be assessed. Instead, section 95-5-10(3) gives the court discretion to award such costs, and the appropriate time to consider such award is at the conclusion of the case.\\nCONCLUSION\\n\\u00b6 35. The award of compensatory damages was not the subject of this appeal. Thus, our conclusion does not impact the award of damages under section 95-5-10(1). We reverse the court's entry of a directed verdict in favor of the Galloways as to the award of statutory damages under section 95-5-10(2) and remand the case to the circuit court for the jury to consider whether such damages are appropriate. We also reverse and remand the award of court costs, which included the Galloways' attorney's fees. At the conclusion of this matter, the trial court in its discretion shall determine whether to assess court costs and attorney's fees under section 95-5-10(3).\\n\\u00b6 36. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT AND THE APPELLEES.\\nBARNES, ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT. RUSSELL, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., IRVING, P.J., AND MAXWELL, J.\\n. Mississippi Rule of Evidence 105 provides:\\nLIMITED ADMISSIBILITY\\nWhen evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. The official comment to the rule provides: This rule is a reflection of the existing practice of admitting evidence regarding one party or one purpose and excluding it as regarding another party or another purpose. .\\nThe rule requires that the party affected make a request to limit the evidence. If no request is made, and consequently the evidence is admitted, existing practice suggests that no error has been committed. See Freed v. Killman, 192 Miss. 643, 6 So.2d 909 (1942).\\n. The Galloways later purchased Willie Taylor's property, which was adjacent to and north of the subject property on the west side of Mt. Pilgrim Road.\\n. The remand to the circuit court is required pursuant to Mississippi Code Annotated section 11-51-79 (Rev.2012).\"}" \ No newline at end of file diff --git a/miss/7049546.json b/miss/7049546.json new file mode 100644 index 0000000000000000000000000000000000000000..6c99b280eb66f25956f6cebe030401669fe76e31 --- /dev/null +++ b/miss/7049546.json @@ -0,0 +1 @@ +"{\"id\": \"7049546\", \"name\": \"Jessie Montrell OLIVER a/k/a Money, Appellant, v. STATE of Mississippi, Appellee\", \"name_abbreviation\": \"Oliver v. State\", \"decision_date\": \"2009-04-14\", \"docket_number\": \"No. 2007-CP-02071-COA\", \"first_page\": \"16\", \"last_page\": \"24\", \"citations\": \"20 So. 3d 16\", \"volume\": \"20\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:39:09.769167+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before LEE, P.J., GRIFFIS and BARNES, JJ.\", \"parties\": \"Jessie Montrell OLIVER a/k/a Money, Appellant, v. STATE of Mississippi, Appellee.\", \"head_matter\": \"Jessie Montrell OLIVER a/k/a Money, Appellant, v. STATE of Mississippi, Appellee.\\nNo. 2007-CP-02071-COA.\\nCourt of Appeals of Mississippi.\\nApril 14, 2009.\\nRehearing Denied July 28, 2009.\\nCertiorari Denied Oct. 29, 2009.\\nJessie Montrell Oliver, pro se.\\nOffice of the Attorney General by Deirdre Mccrory, attorney for appellee.\\nBefore LEE, P.J., GRIFFIS and BARNES, JJ.\", \"word_count\": \"3358\", \"char_count\": \"20447\", \"text\": \"BARNES, J.,\\nfor the Court.\\n\\u00b6 1. Jessie Montrell Oliver pleaded guilty in the Circuit Court of DeSoto County to three counts of armed robbery and was sentenced to ten years on each count, to be served in the custody of the Mississippi Department of Corrections (MDOC), with the sentences to run consecutively, followed by ten years of post-release supervision (five years reporting and five years non-reporting). Oliver, proceeding pro se, filed a motion for post-conviction relief, which the circuit court summarily denied. Oliver now appeals. Finding no error, we affirm.\\nSUMMARY OF FACTS AND PROCEDURAL HISTORY\\n\\u00b6 2. Although the record provides very little detail as to the underlying crimes in this case, we can discern that Oliver and his accomplices committed armed robberies of various Hispanic males in DeSoto County over a period of several days in July 2005. Oliver was indicted in April 2006 for conspiracy to commit armed robbery, three counts of armed robbery, and one count of aggravated assault. On October 20, 2006, Oliver pleaded guilty to the three counts of armed robbery and was sentenced to ten years to serve in the custody of the MDOC in Count II, ten years to serve in the custody of the MDOC in Count III, which was ordered to run consecutively to the sentence for Count II, and ten years to serve in the custody of the MDOC in Count IV to be followed by ten years of post-release supervision (five years reporting and five years non-reporting) with this sentence to run consecutively to Count II and Count III. Counts I and V were remanded to the file.\\n\\u00b6 3. On September 26, 2007, Oliver filed a motion for post-conviction relief to vacate and set aside his convictions and sentences, asserting several errors. The circuit court denied Oliver's motion for post-conviction relief on October 31, 2007, stating no evidentiary hearing was warranted. Oliver filed his notice of appeal on November 12, 2007.\\nSTANDARD OF REVIEW\\n\\u00b6 4. We will not disturb a circuit court's denial of a motion for post-conviction relief unless the decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(\\u00b6 3) (Miss.Ct.App.2002). \\\"A [circuit] court may dismiss a motion for post-conviction relief 'if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.' \\\" Dyson v. State, 996 So.2d 172, 173(\\u00b6 3) (Miss.Ct.App.2008) (quoting Miss.Code Ann. \\u00a7 99-39-11(2) (Rev.2007)). \\\"However, where questions of law are raised the applicable standard of review is de novo.\\\" Williams v. State, 872 So.2d 711, 712(\\u00b6 2) (Miss.Ct.App.2004) (citation omitted).\\nI. Whether Oliver was denied due process and subjected to an illegal sentence as a first-time offender.\\n\\u00b6 5. Oliver contends that, as a first-time offender, he received an unduly harsh sentence. \\\"Sentencing is within the discretion of the trial court and will not be disturbed on appeal absent a finding of abuse of discretion.\\\" Brown v. State, 989 So.2d 882, 886(\\u00b6 20) (Miss.Ct.App.2007) (citing Kirksey v. State, 728 So.2d 565, 568(1114) (Miss.1999)). \\\"This Court will not disturb a sentence that is imposed as long as the sentence is within the terms set forth in the statute.\\\" Lee v. State, 918 So.2d 87, 88(\\u00b6 4) (Miss.Ct.App.2006). The mere fact that \\\"a defendant is convicted of a felony for the first time does not preclude a maximum sentence.\\\" Johnson v. State, 908 So.2d 900, 902(\\u00b6 6) (Miss.Ct.App. 2005) (citing Nichols v. State, 826 So.2d 1288, 1292(\\u00b6 16) (Miss.2002)). Thus, the sentence that Oliver received, which was not the maximum sentence available, was not illegal, even if he had been a first-time offender. However, upon review, we find Oliver's claim of being a first-time offender completely devoid of merit as he admitted to previous convictions of possession of stolen property and burglary of a vehicle in his petition to enter his pleas of guilty.\\nII. Whether Oliver's sentences were excessive, disproportionate, and resulted in a violation of the Fifth and Fourteenth Amendments to the United States Constitution.\\n\\u00b6 6. Oliver claims that the sentences imposed by the circuit court were excessive and disproportionate to the offenses as they exceeded Oliver's life expectancy. Oliver calculates that, at the time of his birth, his life expectancy was sixty-four years. He was twenty-seven years old at sentencing; therefore, he claims that forty years is, in effect, a life sentence and that the circuit court judge should have conducted a \\\"sentencing proportionality analysis\\\" prior to imposing Oliver's sentence.\\n\\u00b6 7. As already stated, \\\"[a]s a general rule, a sentence that does not exceed the maximum period allowed by statute will not be disturbed on appeal.\\\" Towner v. State, 837 So.2d 221, 227(\\u00b6 20) (Miss.Ct. App.2003) (citing Wallace v. State, 607 So.2d 1184, 1188 (Miss.1992)). \\\"A sentence is subject to review, however, where it is alleged that the penalty imposed is disproportionate to the crime charged.\\\" Williams v. State, 784 So.2d 230, 236(\\u00b6 13) (Miss.Ct.App.2000). In Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), the United States Supreme Court developed a three-prong analysis to identify whether a sentence was disproportionate by reviewing: (1) the gravity of the crime and harshness of the penalties, (2) other criminals' sentences in the same jurisdiction for the same crimes, and (3) sentences other jurisdictions impose for commission of the same crime. In Hoops v. State, 681 So.2d 521, 538 (Miss.1996), the Mississippi Supreme Court further clarified that the Solem three-prong analysis only applies \\\"when a threshold comparison of the crime committed to the sentence imposed leads to an inference of 'gross disproportionality.' \\\" (Citation omitted).\\n\\u00b6 8. The Mississippi Supreme Court has stated that:\\nIn cases where the judge has in effect sentenced the defendant to a term of years that is basically a life sentence, the rule that governs in Mississippi is the one set out in the case Stewart v. State, 372 So.2d 257, 259 (Miss.1979). The rule as set out by the Stewart case states, \\\"... the trial court will make a record of and consider all relevant facts necessary to fix a sentence for a definite term of years reasonably expected to be less than life. The court should consider the age and life expectancy of the defendant and any other pertinent facts which would aid in fixing a proper sentence.\\\" Stewart, 372 So.2d at 259.\\nLindsay v. State, 720 So.2d 182, 185(\\u00b611) (Miss.1998). \\\"[A] trial court has to consid er a defendant's life expectancy when determining the length of a sentence in armed robbery convictions.\\\" Cannon v. State, 919 So.2d 913, 917(\\u00b6 11) (Miss.2005). However, \\\"[a] sentence is not an illegal life sentence if it is reasonably calculated to be less than life.\\\" Roland v. State, 939 So.2d 810, 812(\\u00b6 7) (Miss.Ct.App.2006).\\n\\u00b6 9. Oliver recognizes that he pleaded guilty to three counts of armed robbery, which the circuit court informed him at the plea hearing could carry a sentence of less than life on each count. See Gaskin v. State, 618 So.2d 103, 108 (Miss.1993) (without a jury recommendation, the maximum penalty for armed robbery is \\\"a definite term [of years] . less than life\\\"). Therefore, \\\"[e]ach sentence imposed for conviction of multiple offenses is to be imposed without respect to each other, even where the several offenses grew out of a single unbroken chain of events.\\\" McCline v. State, 856 So.2d 556, 560(\\u00b6 19) (Miss.Ct.App.2003) (citing Erwin v. State, 557 So.2d 799, 803 (Miss.1990)). \\\"This remains true even though the aggregation of the sentences exceeds the defendant's actuarial life expectancy.\\\" Id.\\n\\u00b6 10. However, Oliver counters by claiming that the armed robbery was really just one crime, broken into multiple crimes in order to lengthen the sentence. He also argues that his co-defendant, Arri-ca Jefferson, only received five years, which indicates that his sentence was disproportionate. We reject both of these arguments. Oliver knowingly and voluntarily pleaded guilty to all three counts of armed robbery and was fully informed of the maximum and minimum sentence for each count. As to the issue of Jefferson's sentence, we find that her sentence has no bearing on Oliver's sentences. The plea colloquy shows that Jefferson pleaded guilty to conspiracy, not armed robbery. In order to make a finding of disproportionate sentencing under Solem, the sentences for the same crimes must be comparable. Solem, 463 U.S. at 292, 103 S.Ct. 3001.\\n\\u00b6 11. Regardless, Oliver was only sentenced to a total of thirty years' imprisonment. The remaining ten years were under post-release supervision. This would mean that Oliver, who was twenty-seven when he was sentenced, would be fifty-seven years old when he is released, which is less than Oliver's alleged life expectancy of sixty-four years old. We find no error in the sentences imposed by the circuit court as they were not excessive or disproportionate.\\nIII. Whether the circuit court erred in failing to advise Oliver of his right to a direct appeal to the Mississippi Supreme Court of the imposed sentence.\\n1112. Oliver states that the circuit court erred in failing to advise him that he could appeal his sentences directly to the Mississippi Supreme Court. \\\"[W]hile [Mississippi Code Annotated] section 99-35-101 (Rev.2007) prevents a defendant from appealing his guilty plea itself, a defendant may pursue a direct appeal asserting the illegality of the sentence imposed pursuant to his guilty plea.\\\" Flowers v. State, 978 So.2d 1281, 1285(\\u00b6 11) (Miss.Ct. App.2008). Oliver cites Trotter v. State, 554 So.2d 313 (Miss.1989) for the proposition that a circuit court judge must inform a defendant who pleads guilty that he has the right to appeal his sentence. Nevertheless, although Trotter allows a criminal defendant who pleads guilty to \\\"challenge the sentence that results from the guilty plea on direct appeal[,].... [it] does not stand for the proposition that a trial judge must inform a criminal defendant about his right to directly appeal the sentence resulting from the guilty plea.\\\" Coleman v. State, 979 So.2d 731, 733(\\u00b6 4) (Miss.Ct.App.2008). Accordingly, we find no error in the circuit court's failure to advise Oliver that he had the right to appeal his sentence.\\nIY. Whether Oliver received ineffective assistance of counsel.\\n\\u00b6 13. Oliver claims that he received ineffective assistance of counsel due to (1) counsel's failure to advise him of his right to a speedy trial, and (2) counsel's failure to summon witnesses and conduct an adequate pretrial investigation.\\n\\u00b6 14. For Oliver to establish ineffective assistance of counsel, he \\\"must demonstrate that his attorney's performance was deficient and that this deficiency deprived him of a fair trial.\\\" Beene v. State, 910 So.2d 1152, 1155(\\u00b6 10) (Miss.Ct.App.2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). \\\"[T]here is a strong presumption that counsel's performance falls within the range of reasonable professional assistance [and].... [t]o overcome this presumption, 'the defendant must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.' \\\" Madden v. State, 991 So.2d 1231, 1236-37(\\u00b623) (Miss.Ct.App.2008) (citing Strickland, 466 U.S. at 689, 694, 104 S.Ct. 2052).\\nA. Right to Speedy Trial\\n\\u00b6 15. Oliver contends that his defense counsel failed to advise him of his right to a speedy trial prior to the entry of his guilty pleas and that his constitutional rights were violated as there was a delay of more than 270 days between his date of arrest and the trial date. \\\"[A] valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial including the right to a speedy trial, whether of constitutional or statutory origin.\\\" Madden, 991 So.2d at 1237(\\u00b6 25) (quoting Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991)). \\\"However, this Court may entertain a speedy trial claim in the context of ineffective assistance of counsel.\\\" Hardin v. State, 966 So.2d 844, 847(\\u00b6 11) (Miss.Ct.App.2007) (citing Thomas v. State, 933 So.2d 995, 997(\\u00b64) (Miss. Ct.App.2006)). In order for Oliver to prevail on his claim for ineffective assistance of counsel, he must demonstrate that, but for counsel's errors, his speedy trial claim would have succeeded. Id. at (\\u00b6 7).\\n\\u00b6 16. \\\"The constitutional right to a speedy trial attaches at the time a person is accused, whether at arrest, indictment, or information.\\\" Robinson v. State, 920 So.2d 1015, 1018(\\u00b6 6) (Miss.Ct. App.2005) (citing Smith v. State, 550 So.2d 406, 408 (Miss.1989)). The statutory right to a speedy trial, however, attaches from the date of arraignment. The record reflects that Oliver was taken into custody on August 24, 2005. However, Oliver was not served with a copy of his indictment until April 20, 2006. Oliver also waived his arraignment that same day in the pretrial scheduling order. \\\"If a defendant waives arraignment, that date is considered day one on the speedy trial calendar.\\\" Mayo v. State, 886 So.2d 734, 738(11 17) (Miss.Ct. App.2004) (citation omitted). A trial date was originally set for June 26, 2006, but Oliver's defense counsel filed two motions for continuance, which moved the trial date to November 13, 2006. As there was only a six-month delay between the arraignment and the guilty pleas, mainly due to continuances filed on behalf of Oliver, we find no violation of Oliver's statutory right to a speedy trial.\\n1117. However, in order to assess Oliver's constitutional right to speedy trial claim, this Court must employ the balancing test in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which \\\"requires consideration of the following factors: (1) length of the delay, (2) reason for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether the defendant was prejudiced by the delay.\\\" Thomas, 933 So.2d at 997(\\u00b6 7).\\ni. Length of the Delay\\n\\u00b6 18. In considering the first factor, any delay that is more than eight months is presumptively prejudicial and requires the Court to consider the remaining three factors. Id. at (\\u00b6 8). Oliver was arrested on or about August 24, 2005. The circuit court judge noted that Oliver had served 432 days prior to his guilty plea hearing, clearly over eight months, requiring the Court to address the other factors.\\nii. Reason for the Delay\\n\\u00b6 19. As already noted, Oliver requested two continuances after his arraignment and indictment, creating a delay of only 127 days from the original trial date of June 26, 2006. Continuances aside, there is still a delay of over 300 days, more than eight months, from Oliver's arrest date. Therefore, this factor would weigh in Oliver's favor.\\niii. Whether the Defendant Asserted His Right to a Speedy Trial\\n\\u00b6 20. \\\"While the State bears the responsibility to timely bring the accused to trial, the defendant has some responsibility to assert the speedy trial right.\\\" Robinson, 920 So.2d at 1018-19(\\u00b6 9) (citing Wiley v. State, 582 So.2d 1008, 1012 (Miss. 1991)). We find no evidence to show that Oliver asserted such right. However, as he might claim ineffective assistance of counsel based on his attorney's failure to assert the right, we will, for the sake of argument, weigh this factor as neutral.\\niv. Whether the Defendant was Prejudiced by the Delay\\n\\u00b6 21. \\\"[T]hree primary considerations in evaluating whether the defendant has been prejudiced by the delay are: (1) the prevention of oppressive pre-trial incarceration; (2) the minimization of anxiety and concern of the accused; and (3) limiting the possibility the defense will be impaired.\\\" Id. at 1019(\\u00b6 10) (citation omitted). Oliver has not provided this Court with any evidence, other than his pretrial incarceration, which would show how any delay constituted prejudice. We have found that \\\"pre-trial incarceration, without more, is not considered prejudicial.\\\" Id. at (\\u00b6 11). Consequently, we find that Oliver has not established prejudice attributable to the delay in his prosecution.\\n\\u00b6 22. We conclude that there is no ineffective assistance of counsel as Oliver has failed to show this Court how any filing of a motion for a speedy trial would have succeeded. This issue is without merit.\\nB. Failure to Summon Witnesses and Perform Pretrial Investigation\\n\\u00b623. Oliver also asserts that counsel rendered ineffective assistance of counsel in her failure to call witnesses or perform any pretrial investigation. A defendant is obligated to provide \\\"more than conclusory allegations on a claim of ineffective assistance of counsel.\\\" Carpenter v. State, 899 So.2d 916, 921(\\u00b623) (Miss.Ct. App.2005) (citing Wilcher v. State, 863 So.2d 776, 824 (\\u00b6 169) (Miss.2003)). In order for an attorney's \\\"failure to investigate to rise to the level of ineffective assistance of counsel, the defendant must state with particularity what the investigation would have revealed and how it would have altered the outcome.\\\" Johnson v. State, 987 So.2d 501, 504(\\u00b6 15) (Miss.Ct.App.2008) (citation omitted). While we recognize that defense counsel has a \\\"duty to interview potential witnesses and make an independent investigation of the facts and circumstances of [a] case[,] . a failure to do such will not alone give rise to ineffective assistance of counsel.\\\" Reed v. State, 918 So.2d 776, 778(\\u00b6 5) (Miss.Ct.App.2005) (citing Brown v. State, 798 So.2d 481, 496(\\u00b6 21) (Miss.2001)). Rather the failure to investigate must satisfy the second prong of the Strickland test and affect whether Oliver would have entered his guilty pleas. Id.\\n\\u00b6 24. Oliver has failed to provide this Court with any specific information to this effect. In addition, in Oliver's signed petition to enter a guilty plea, he stated: \\\"I believe that my lawyer is competent and has done all that anyone could do to counsel and assist me, and I am fully satisfied with the advice and help he has given me.\\\" Therefore, we find no merit to this issue.\\n\\u00b6 25. Oliver also claims that as his attorney represented other co-defendants, it was a conflict of interest. In order to prove a conflict of interest, the defendant must demonstrate \\\"that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance.\\\" Moore v. State, 985 So.2d 365, 369(\\u00b6 13) (Miss.Ct.App.2008). Again, Oliver has made no such showing.\\n\\u00b6 26. Accordingly, we find that counsel's performance was not deficient, and this issue is without merit.\\nV. Whether the circuit court erred in failing to allow the record to contain a transcript of the guilty plea colloquy.\\n\\u00b6 27. Oliver claims that the circuit court failed to include designated records, specifically the guilty plea colloquy, in the appeal to this Court. As the record before us contains the transcript from the plea colloquy, we find that this assignment of error is without merit.\\n\\u00b6 28. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.\\nKING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ\\\" CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT.\\n. Section 99-35-101 of the Mississippi Code Annotated was amended, effective July 1, 2008, to provide that \\\"where [a] defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to the Supreme Court shall be allowed.\\\" Miss.Code Ann. \\u00a7 99-35-101 (Supp.2008) (emphasis added). However, this change was not in effect at the time of Oliver's entry of his guilty pleas, and as such, it is not applicable here.\\n. Mississippi Code Annotated section 99-17-1 (Rev.2007) states that: \\\"Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned,\\\"\"}" \ No newline at end of file diff --git a/miss/7059330.json b/miss/7059330.json new file mode 100644 index 0000000000000000000000000000000000000000..ea781de686c15fb554fd25dc1383b8335468955a --- /dev/null +++ b/miss/7059330.json @@ -0,0 +1 @@ +"{\"id\": \"7059330\", \"name\": \"Jermail HUMPHRIES, Appellant, v. STATE of Mississippi, Appellee\", \"name_abbreviation\": \"Humphries v. State\", \"decision_date\": \"2009-09-15\", \"docket_number\": \"No. 2008-KA-00912-COA\", \"first_page\": \"305\", \"last_page\": \"310\", \"citations\": \"18 So. 3d 305\", \"volume\": \"18\", \"reporter\": \"Southern Reporter, Third Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T17:18:50.626134+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before KING, C.J., BARNES and CARLTON, JJ.\", \"parties\": \"Jermail HUMPHRIES, Appellant, v. STATE of Mississippi, Appellee.\", \"head_matter\": \"Jermail HUMPHRIES, Appellant, v. STATE of Mississippi, Appellee.\\nNo. 2008-KA-00912-COA.\\nCourt of Appeals of Mississippi.\\nSept. 15, 2009.\\nLeslie S. Lee, Jackson, Benjamin Allen S\\u00faber, attorneys for appellant.\\nOffice of the Attorney General by Lisa Lynn Blount, attorney for appellee.\\nBefore KING, C.J., BARNES and CARLTON, JJ.\", \"word_count\": \"2056\", \"char_count\": \"13013\", \"text\": \"CARLTON, J.,\\nfor the Court.\\n\\u00b6 1. A Hinds County Circuit Court jury convicted Jermail Humphries of the murder of Armond Butler. The trial court sentenced Humphries to life in the custody of the Mississippi Department of Corrections (MDOC).\\n\\u00b6 2. Humphries argues on appeal that he is, at most, guilty of manslaughter, and asks this Court to reverse his murder conviction and remand his case for a new trial or for re-sentencing on manslaughter. We find no error and affirm Humphries's conviction and sentence.\\nFACTS\\n\\u00b6 3. On September 28, 2006, Zarccheaus Anderson and Michael Buckhalter got into a fight in Jackson, Mississippi over a basketball game. Following the initial altercation, Anderson went to a nearby house, where he related the story of the fight to, among others, the defendant, Humphries.\\n\\u00b6 4. Humphries, Buckhalter, and two other people then drove back to the basketball court, where Buckhalter and Anderson began to fight again. During this second fight, other people became involved, including Buckhalter's friend, Sel-ester Jones, who fought directly with Humphries. After ending up on the ground and receiving a blow to the head, Humphries drew a gun and fired in the air, breaking up the fight and dispersing the crowd.\\n\\u00b6 5. When Anderson and Humphries later encountered Jones, Tian Short, and a group of young people walking down a street, a verbal confrontation ensued. Humphries again fired his gun in the air, causing Jones, Short, and the group to flee. He then fired shots in the general direction of the fleeing group.\\n\\u00b6 6. Later on, while still walking around the neighborhood, Jones, Short, and others encountered Butler and Jerrick Nichols and discussed the fight between Anderson and Buckhalter. A car in which Hum-phries rode passed by this group once, with Humphries hanging out of the window brandishing a gun. The car soon reappeared, at which time Humphries stepped out of the car, drew his gun, rested his hands on the car's roof, and began shooting at the fleeing group. Butler suffered a fatal gunshot wound. Humphries claims he fired his gun over the top of a house in the direction the group ran and that someone else fired shots, although he does not know who.\\n\\u00b6 7. A Hinds County grand jury indicted Humphries for depraved-heart murder pursuant to Mississippi Code Annotated section 97-3-19 (Rev.2006). After the trial, the jury convicted Humphries of murder. The trial court then sentenced Hum-phries to life in the custody of the MDOC.\\n\\u00b6 8. Humphries now appeals his conviction and sentence, raising the following assignments of error: (1) the jury instructions did not properly distinguish between depraved-heart murder and culpable-negligence manslaughter because the instructions did not accurately state the law and did not define the elements of manslaughter, and (2) the evidence presented at trial was insufficient to support a murder conviction.\\nI. Whether the jury instructions were confusing regarding the difference in depraved-heart murder and culpable-negligence manslaughter.\\n\\u00b6 9. Humphries alleges in his first assignment of error that the trial court's failure to properly distinguish between depraved-heart murder and culpable-negligence manslaughter in its jury instructions constitutes reversible error. Humphries further alleges that the trial court failed to instruct the jury on the elements of culpable-negligence manslaughter.\\n\\u00b6 10. This Court has articulated the standard of review for challenges to jury instructions: \\\"In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.\\\" Johnson v. State, 823 So.2d 582, 584(\\u00b6 4) (Miss.Ct.App.2002) (quoting Collins v. State, 691 So.2d 918, 922 (Miss.1997)).\\n\\u00b6 11. \\\"In order to preserve a jury[-]instruction issue on appeal, a party must make a specific objection to the proposed instruction in order to allow the lower court to consider the issue.\\\" Crawford v. State, 787 So.2d 1236, 1245(\\u00b6 35) (Miss.2001). Ordinarily, a \\\"party's failure to object to jury instructions at trial procedurally bars the issue on appeal.\\\" Hawthorne v. State, 835 So.2d 14, 19(\\u00b6 20) (Miss.2003) (citing Walker v. State, 729 So.2d 197, 202(\\u00b6 19) (Miss.1998)). Hum-phries not only failed to object at the trial level to jury instruction D-4, which defined culpable negligence, he submitted the instruction. Moreover, the instruction is virtually identical to the instruction defining culpable negligence manslaughter upheld in Mullen v. State, 986 So.2d 320, 324 (\\u00b6\\u00b6 13-15) (Miss.Ct.App.2007).\\n\\u00b6 12. Although Humphries did object to jury instruction S-2, which defined depraved-heart murder and distinguished it from culpable-negligence manslaughter, he based his objection on the sufficiency of the evidence. At no time did Humphries object to the jury instruction defining depraved-heart murder and distinguishing it from culpable-negligence manslaughter on the grounds that it was an unclear misstatement of the law. Lacking such an objection, we find this assignment of error is procedurally barred.\\n\\u00b6 13. Where a party fails to raise an objection at trial, he is limited on appeal to arguing that the error constituted plain error, which requires the party to show that the trial court's failure affected a substantial right. Waldon v. State, 749 So.2d 262, 267(\\u00b6 14) (Miss.Ct.App.1999) (citing Brown v. State, 690 So.2d 276, 297 (Miss.1996)). Humphries makes no such showing. Mississippi Code Annotated section 97 \\u2014 3\\u201419(l)(b) (Rev.2006) provides the following definition of depraved heart murder:\\n(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:\\n(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual.]\\n\\u00b6 14. The challenged jury instructions recited this statutory language almost verbatim. The Mississippi Supreme Court has \\\"consistently held that instructions in a criminal case which follow the language of a pertinent statute are sufficient.\\\" Crenshaw v. State, 520 So.2d 131, 135 (Miss.1988).\\n\\u00b6 15. Mississippi Code Annotated section 97-3-47 (Rev.2006) defines manslaughter as \\\"[e]very other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law[.]\\\" The jury instructions properly defined culpable negligence as \\\"conduct which exhibits or manifests wanton or reckless disregard for the safety of human life, or such indifference to the consequences of the defendant's acts under the surrounding circumstances as to render his conduct tantamount to wilfulness.\\\" In addition to the fact that Humphries offered the instruction in question, the Mississippi Supreme Court has endorsed a functionally identical jury instruction. See Shumpert v. State, 935 So.2d 962, 967(\\u00b6 14) (Miss.2006) (defining manslaughter by culpable negligence as \\\"such gross negligence . as to evince a wanton or reckless disregard for the safety of human life, or such an indifference to the consequences of an act under the surrounding circumstances as to render such conduct tantamount to willfulness\\\").\\n\\u00b6 16. While Humphries argues that the definitions for depraved-heart murder and culpable-negligence manslaughter are so similar as to create confusion in the minds of jurors, the two crimes are made distinct by the degree of mental culpability, an issue properly resolved by a jury. Id. Jury instruction S-2 drew attention to this distinction, stating that depraved-heart murder \\\"involves a higher degree of recklessness from which malice or deliberate design . may be implied.\\\"\\n\\u00b6 17. Humphries correctly observes that the jury did not receive instructions on the elements of manslaughter. He neglects to mention, however, that he failed to object to this omission at trial and even withdrew his proposed jury instruction that would have provided these elements. Moreover, a review of the record reflects that the offense of manslaughter was not fairly raised by the evidence. The trial court instructed the jury on the elements of depraved-heart murder, the difference between depraved-heart murder and culpable negligence manslaughter, and the meaning of culpable negligence. When the instructions are read as a whole, as the law requires, the jury instructions given correctly and clearly summarized the law; therefore, we find that no injustice resulted from the lack of a separate instruction containing the elements of manslaughter. This assignment of error is without merit.\\nII. Whether the evidence was legally sufficient.\\n\\u00b6 18. Humphries alleges in his second assignment of error that the evidence at trial was insufficient to support a conviction for murder, arguing that: (1) the State presented no evidence of premeditation; (2) Humphries did not intend to hurt Butler when he fired shots in Butler's direction; and (3) another person must have fired the fatal shot.\\n\\u00b6 19. In reviewing issues of legal sufficiency, the Court does not \\\"ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.\\\" Bush v. State, 895 So.2d 836, 843(16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). Rather, the Court will \\\"view the evidence in the light most favorable to the prosecution and determine whether a rational juror could have concluded beyond a reasonable doubt that all elements of the crime were satisfied.\\\" Readus v. State, 997 So.2d 941, 944(\\u00b6 13) (Miss.Ct.App.2008) (citation omitted). \\\"The proper remedy for insufficient evidence is for the Court to reverse and render.\\\" Id. (citation omitted). Viewing the evidence in the light most favorable to the prosecution, we find sufficient evidence in the record to support Humphries's conviction of murder.\\n\\u00b6 20. Several eyewitnesses testified that Humphries stepped out of a car, placed his hands on the roof of the car, and pointed a gun in the direction of a group of people that included Butler. The eyewitnesses fled from Humphries but heard bullets \\\"whizzing\\\" past them. No one testified to seeing anyone else fire a gun; Humphries presented no evidence in support of his theory of a second shooter. While Humphries argues there is no evidence of premeditation and that he did not intend to harm Butler, the depraved-heart murder statute does not require a premeditated design to kill or animus toward any particular individual. Humphries's argument, quite simply, misses the point. Instead, the inquiry should focus on whether there is sufficient evidence that Hum-phries's actions were eminently dangerous to others, evincing a depraved heart or without any regard for human life. Rational jurors were free to conclude, despite Humphries's asserted defenses, that: Humphries was the only shooter; he shot into a fleeing crowd of people; and his bullet struck Butler. These inferences were perfectly rational in light of the evidence presented at trial. Shooting into a crowd of people is not only a possible form of depraved-heart murder, it is the classic example of depraved-heart murder. See Readus, 997 So.2d at 942-944 (\\u00b6\\u00b6 4-11) (calling the act of shooting into a crowd the \\\"classic example of depraved[-]heart murder\\\" and holding that evidence was sufficient to support depraved-heart murder where the defendant fired shots inside an apartment that contained several unarmed individuals, even though the defendant claimed to have only intended to fire his gun in the air).\\n\\u00b6 21. We have carefully reviewed the record in this case. Examining the evidence in the light most favorable to the prosecution, we find that a rational juror could find Humphries guilty of depraved-heart murder beyond a reasonable doubt. Although Humphries may have disputed where he pointed his gun when he shot and whether anyone else fired shots, factual disputes raised at trial \\\"are properly resolved by the jury and do not mandate a new trial.\\\" Jones v. State, 791 So.2d 891, 895(\\u00b6 12) (Miss.Ct.App.2001) (quoting Benson v. State, 551 So.2d 188, 193 (Miss.1989)). This assignment of error is without merit.\\n\\u00b6 22. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.\\nKING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND MAXWELL, JJ., CONCUR.\"}" \ No newline at end of file diff --git a/miss/7436242.json b/miss/7436242.json new file mode 100644 index 0000000000000000000000000000000000000000..3c172852651cc78df3b86df463347c82bde9a5ad --- /dev/null +++ b/miss/7436242.json @@ -0,0 +1 @@ +"{\"id\": \"7436242\", \"name\": \"Oliver PATTON, Jr. a/k/a Walter Patton a/k/a Arthur Patton a/k/a Johnny Harold McFarland a/k/a Willie Henderson a/k/a Albert Jackson v. STATE of Mississippi\", \"name_abbreviation\": \"Patton v. State\", \"decision_date\": \"1996-06-18\", \"docket_number\": \"No. 93-KA-00194-COA\", \"first_page\": \"808\", \"last_page\": \"808\", \"citations\": \"687 So. 2d 808\", \"volume\": \"687\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T01:26:53.332064+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BRIDGES, P.J., and DIAZ and PAYNE, JJ.\", \"parties\": \"Oliver PATTON, Jr. a/k/a Walter Patton a/k/a Arthur Patton a/k/a Johnny Harold McFarland a/k/a Willie Henderson a/k/a Albert Jackson v. STATE of Mississippi.\", \"head_matter\": \"Oliver PATTON, Jr. a/k/a Walter Patton a/k/a Arthur Patton a/k/a Johnny Harold McFarland a/k/a Willie Henderson a/k/a Albert Jackson v. STATE of Mississippi.\\nNo. 93-KA-00194-COA.\\nCourt of Appeals of Mississippi.\\nJune 18, 1996.\\nJames L. Farrior, III, Gulfport, for Appellant.\\nMichael C. Moore, Attorney General, Jean Smith Vaughan, Sp. Asst. Attorney General, Jackson, for Appellee.\\nBefore BRIDGES, P.J., and DIAZ and PAYNE, JJ.\", \"word_count\": \"98\", \"char_count\": \"668\", \"text\": \"Appeal No. 8510529 from Judgment dated October 3, 1986; Robert T. Mills, Ruling Judge, Jackson County Circuit Court.\\nAffirmed.\\nFRAISER, C.J., and BARBER, COLEMAN, KING, MeMILLIN and SOUTHWICK, JJ., concur.\\nTHOMAS, P. J., not participating.\"}" \ No newline at end of file diff --git a/miss/7437018.json b/miss/7437018.json new file mode 100644 index 0000000000000000000000000000000000000000..11a6b4a1ece233860786c7fa968503661aa505c0 --- /dev/null +++ b/miss/7437018.json @@ -0,0 +1 @@ +"{\"id\": \"7437018\", \"name\": \"The MISSISSIPPI BAR v. John Thomas MURPHY, Jr.\", \"name_abbreviation\": \"Mississippi Bar v. Murphy\", \"decision_date\": \"1996-05-30\", \"docket_number\": \"No. 95-BD-00973-SCT\", \"first_page\": \"845\", \"last_page\": \"846\", \"citations\": \"675 So. 2d 845\", \"volume\": \"675\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:16:16.608292+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The MISSISSIPPI BAR v. John Thomas MURPHY, Jr.\", \"head_matter\": \"The MISSISSIPPI BAR v. John Thomas MURPHY, Jr.\\nNo. 95-BD-00973-SCT.\\nSupreme Court of Mississippi.\\nMay 30, 1996.\", \"word_count\": \"1137\", \"char_count\": \"6696\", \"text\": \"ORDER OF DISBARMENT\\nMeRAE, Justice.\\nThis matter came before the Court sitting en banc as a Formal Complaint filed on September 26, 1995 by the Mississippi Bar against John Thomas Murphy, Jr., a member of the Bar now serving time in federal prison in Pensacola, Florida.' Since Murphy entered a guilty plea to a felony charge in federal court, the Bar sought to disbar him pursuant to Rule 6(a) of the Rules of Discipline for the Mississippi Bar. This Court entered an Order to Show Cause on February 15, 1996. More than thirty days have passed and Murphy has not shown cause as to why he should not be disbarred. The Court, having fully considered the Formal Complaint and being fully advised in the premises, finds as follows:\\nMurphy entered a guilty plea on June 15, 1995 to one count of theft or embezzlement of government property pursuant to 18 U.S.C. \\u00a7 641 in the United States District Court, Southern District of Mississippi. He was sentenced on August 25, 1995 to serve five months in the custody of the United States Bureau of Prisons and upon release, to serve an additional three years supervised release. He further was ordered to pay $38,-207.26 in restitution. Judgment was entered in United States v. Murphy, No. 3:95cr22LS (S.D.Miss. Aug. 30, 1995).\\nRule 6(a) of the Rules of Discipline provides as follows for the disbarment of an attorney who pleads guilty to a felony:\\nWhenever any attorney subject to the disciplinary jurisdiction of the Court shall be convicted in any court of any state or in any federal court, or enter a plea of guilty or a plea of nolo contendere therein, or tender a guilty plea pursuant to the provisions of Miss.Code Ann. \\u00a7 99-15-26 (Supp. 1993), or any similar provision in state or federal law therein of any felony (other than manslaughter) or of any misdemeanor involving fraud, dishonesty, misrepresentation, deceit, or willful failure to account for money or property of a client, a certified copy of the judgment of conviction or order accepting and acknowledging the offer or tender of a guilty plea pursuant to Miss. Code Ann. \\u00a7 99-15-26 (Supp.1993), or any similar provision in the state or federal law shall be presented to the Court by Complaint Counsel and shall be conclusive evidence thereof. The Court shall then forthwith strike the name of the attorney and order his immediate suspension from the practice of law.\\nPursuant to this rule, entry of a plea of guilty to a felony mandates automatic disbarment. Mississippi Bar v. Sykes, 637 So.2d 192 (Miss.1994). This Court has stated that disbarment \\\"serves to help to preserve the dignity and reputation of the legal profession and also ensures protection of the public from such conduct.\\\" In re Baker, 649 So.2d 850, 853 (Miss.1995).\\nIT IS THEREFORE ORDERED as follows:\\n1. John Thomas Murphy, Jr. is hereby disbarred from the practice of law in the State of Mississippi and his name shall be immediately removed from the rolls of the Mississippi State Bar;\\n2. The Clerk of the Supreme Court of Mississippi (the Clerk) shall immediately forward to the attorneys of record for each party herein a copy of this Order of Disbarment, and shall send Mr. Murphy's copy by certified mail, return receipt requested;\\n3. The Clerk shall immediately forward an attested copy of this Order of Disbarment to the Clerks of the United States District Coui't, Northern and Southern Districts of Mississippi, to the Clerk of the United States Court of Appeals for the Fifth Circuit, and to the Clerk of the Supreme Court of the United States;\\n4. The Clerk shall immediately forward an attested copy of this Order of Disbarment to the judges of the circuit, chancery and county courts of the districts where Murphy resided and practiced law, with instructions to include a copy of this judgment upon the minutes of their respective courts;\\n5. The Clerk shall forward an attested copy of this Order of Disbarment to the Executive Director of the Mississippi State Bar;\\n6. The Bar is entitled to recover from Mr. Murphy all costs of this disciplinary proceeding, as well as all previously assessed sums. The Bar shall file its Motion for Costs and Expenses with the Coui't within ten (10) days of the filing of this Order;\\n7. Mr. Murphy is hereby enjoined from practicing law in Mississippi; from holding himself out as an attorney at law; from performing any legal service for others; from accepting any fee directly or indirectly for legal services to be performed for others; from appearing as counsel or in any representative capacity in any proceeding in any court of the State of Mississippi, or before any administrative body or agency thereof; from holding himself out to others as or using his name in any manner, in conjunction with the phrases \\\"attorney at law,\\\" \\\"attorney,\\\" \\\"counselor at law,\\\" \\\"counselor,\\\" or \\\"lawyer,\\\" for the period of his disbarment until such time as he is reinstated to the practice of law in this State by the Supreme Court of Mississippi;\\n8. Within ten (10) days of receipt of this Order of Disbarment, Mr. Murphy shall notify in writing each of his Mississippi clients of his disbarment and of his consequent inability to act as an attorney and shall advise each such client to promptly substitute another attorney or attorneys in his place or to seek legal advice elsewhere;\\n9. Mr. Murphy shall return all files, papers, monies and other properties belonging to his Mississippi clients in his possession, if any such clients request same after receiving notification from him. Within thirty (30) days of receipt of this Order of Disbarment, Mr. Murphy shall file with this Court an Affidavit stating that all current Mississippi clients have been notified of his disbarment and that all files, papers, monies and other property belonging to such clients have been returned as ordered herein; and showing in the cases where it was not possible to notify such clients or return their property, that due diligence was used to do so;\\n10. Within ten (10) days of receipt of this Order of Disbarment, Mr. Murphy shall notify every attorney and adverse party in any Mississippi proceeding in which he is involved and all affected courts and agencies, of his disbarment and consequent inability to act as an attorney. Within thirty (30) days of receipt of this Order of Disbarment, Mr. Murphy shall file with this Court an Affidavit stating that all attorneys or adverse parties in any such proceeding in which he is involved, and all affected courts and agencies, have been notified of his disbarment and consequent inability to act as an attorney.\\nSO ORDERED.\"}" \ No newline at end of file diff --git a/miss/7446365.json b/miss/7446365.json new file mode 100644 index 0000000000000000000000000000000000000000..8a2da49f8b7033af0898ed280a50adfbbd3ecf4b --- /dev/null +++ b/miss/7446365.json @@ -0,0 +1 @@ +"{\"id\": \"7446365\", \"name\": \"Marvin POWELL v. Christine A. POWELL\", \"name_abbreviation\": \"Powell v. Powell\", \"decision_date\": \"1994-10-20\", \"docket_number\": \"No. 92-CA-00497\", \"first_page\": \"269\", \"last_page\": \"281\", \"citations\": \"644 So. 2d 269\", \"volume\": \"644\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T18:45:02.858542+00:00\", \"provenance\": \"CAP\", \"judges\": \"HAWKINS, C.J., DAN M. LEE, P.J., and SULLIVAN, PITTMAN, BANKS and McRAE, JJ., concur.\", \"parties\": \"Marvin POWELL v. Christine A. POWELL.\", \"head_matter\": \"Marvin POWELL v. Christine A. POWELL.\\nNo. 92-CA-00497.\\nSupreme Court of Mississippi.\\nOct. 20, 1994.\\nHalbert E. Doekins, Jr., Jackson, for appellant.\\nRoy J. Perilloux, Perilloux & Milner, Sean A. Milner, Jackson, for appellee.\", \"word_count\": \"7236\", \"char_count\": \"43400\", \"text\": \"ON PETITION FOR REHEARING\\nJAMES L. ROBERTS, Jr., Justice,\\nfor the Court:\\nThe original opinions are withdrawn and these opinions are substituted therefor.\\nThis appeal arises from an order of the Hinds County Chancery Court, First Judicial District, transferring custody of sixteen-year-old Tracee Resehell Powell from her father Marvin to her mother Christine, awarding Christine child support and attorney's fees, and providing for the garnishment of Marvin's wages. The order had been entered after a hearing unattended by Marvin or counsel on his behalf. We find insufficient evidence that Marvin received notice of the hearing, and hold that he was denied due process by the adjudication of custody and support matters in his absence. We reverse and remand for a new hearing.\\nA.\\nFACTS AND PROCEDURAL HISTORY\\nMarvin and Christine Powell were married in 1972 and had two daughters. Sherrie Mischelle was born in 1973, and Tracee Resc-hell in 1976.\\nOn October 4, 1985, the Chancery Court of the First Judicial District in. Hinds County entered a judgment of divorce. Christine was awarded custody of the girls, then ages 12 and 9, and Marvin was ordered to pay child support in the amount of $300.00 per month until June 1, 1986, at which point the amount would increase to $400.00 per month.\\nOn September 5, 1989, Marvin and Christine agreed to a modification of the divorce judgment, and the Hinds Chancery Court entered an order transferring custody of both daughters to Marvin. Support payments were terminated.\\nOn November 21, 1991, Christine filed a motion for modification of the judgment, seeking custody of Tracee. She alleged that Tracee had expressed a desire to be with her, and that while Marvin was not averse to this, he refused to pay child support absent a court order. Christine requested child support and attorney's fees.\\nOn December 19, 1991, an alias summons was filed in the Hinds Chancery Court, stating that it had been served on Marvin Powell the previous day, apparently at his place of employment. The summons stated that a complaint was attached (Christine's motion for modification), and that Marvin was \\\"required to mail or hand-deliver a copy of a written response\\\" to Christine's lawyer within 30 days. The summons did not set a date or time for a hearing or other procedure.\\nOn March 2, 1992, Christine filed a Notice of Hearing in the Hinds Chancery Court, stating that she would bring her motion before the Court on March 9, 1992 at 9:00 a.m. A certificate of service stated that Christine's lawyer had sent a copy of the notice to Marvin at his home address of 147 Powell Road, Jackson. Marvin contends that he never received this notice.\\nThe hearing was held before the Hinds Chancery Court on March 9, 1992. Present were Christine and her lawyer, Roy Peril-loux. At the hearing, Perilloux stated that after filing the motion for modification, he had received a telephone call from Marvin's last attorney of record, Hal Dockins. Peril-loux also stated that he had spoken with Dockins \\\"last week to advise him of the hearing,\\\" and that Dockins had told him that while he was not representing Marvin, he did not think Marvin was opposed to the motion, except for the child support provision. The Chancellor requested that Perilloux take a quick look around the courthouse for Marvin. Marvin was not found, and the hearing was held.\\nIn an order dated March 12, 1992, the chancellor' transferred custody of Tracee from Marvin to Christine. He awarded $250.00 per month child support, as well as Christine's $550.00 attorney's fees. The judgment provided that an order be served on Marvin's employer, commanding Texas Eastern Transmission Corporation to withhold $250.00 per month for Tracee's support. The withholding order was to take effect immediately. Additionally, a writ of garnishment was served on Texas Eastern Transmission in the amount of $550.00.\\nMarvin filed a motion for relief from the March 12th judgment and to stay the garnishment proceedings. He claimed that although he had been served the alias summons in December 1991, he had never received notice of the hearing held March 9, 1992, and that the alias summons failed to comply with the notice requirements of M.R.C.P. 81. He asked the Court to set aside its judgment as void, to stay or vacate all garnishments, and to assess attorney's fees and court costs.\\nA hearing on this motion was held on April 23,1992. It was attended by Christine, Mar vin, and their lawyers. Marvin's lawyer Hal Dockins made the following statement concerning his client's alleged lack of notice of the March 9th hearing:\\nMy client never received any notice of the hearing. When he received the alias summons, Your Honor, he came to my office. I called Mr. Perilloux on the phone. I asked Mr. Perilloux, I said, \\\"I notice that your summons does not yet have a hearing date.\\\" He said, \\\"I haven't set it yet.\\\" I never heard from Mr. Powell or Mr. Peril-loux again. I saw Mr. Perilloux in the hallway one day when I was here on another matter, and he asked me a question about Mr. Powell's case. And I advised him that I had advised Mr. Powell that he should take some sort of action on the case. I was on another matter. I never received any notice of the hearing date. Mr. Powell never received notice of a hearing date. The next thing we knew about the case Mr. Powell was being garnished.\\nPerilloux had a somewhat different recollection of the conversation in the hallway:\\n(M)r. Dockins and (Carol English) were having a conversation at the counter on Friday, March the 6th, prior to this hearing, when I happened by. And Carol asked me was the hearing before you that Monday still on. And I said, \\\"You couldn't have asked me at a more appropriate time,\\\" because Mr. Dockins had made a telephone call on this case. And I turned to Hal and asked him, \\\"Are you representing Mr. Powell?\\\" And his response was, \\\"Definitely not.\\\" And I said somewhat in a joking manner, Judge, \\\"Speak now or forever hold your peace,\\\" to which Hal said, \\\"I am definitely not representing him. He's fair game.\\\" Judge, I think there's a waiver problem here.\\nDockins denied that he had ever told Peril-loux that he was no longer representing Marvin Powell.\\nThe chancellor was unsympathetic to Marvin's claim that he had not received notice of the March 9th hearing. He stated that he had an affidavit from Perilloux, swearing that he had sent notice of the hearing by first class U.S. mail to Marvin at his Powell Road address in Jackson. However, no such affidavit appears in the record. The chancellor held that notice of the hearing had been given, and denied Marvin's motion to set aside the judgment.\\nThe chancellor then permitted Dockins to call Marvin to make an offer of proof. Marvin testified that he had been employed at Texas Eastern for sixteen years, and that it was there he had been served the alias summons. He stated that the summons had given no indication of when or where he was to appear to defend his rights, and that had he received notice of the hearing, he would have appeared. Upon questioning by the judge, Marvin stated that he had no objection to Tracee going to live with Christine, and that he had no objection to paying child support.\\nThe chancellor denied Marvin's motion in an order dated April 28, 1992. On May 18, 1992, Marvin appealed the judgment to this Court.\\nB.\\nNOTICE\\nI. WHETHER A RULE 4 ALIAS SUMMONS, WHICH FAILED TO GIVE NOTICE OF THE DATE, TIME AND PLACE OF A MODIFICATION OF CHILD CUSTODY HEARING, COMPLIES WITH THE NOTICE REQUIREMENTS OF M.C.R.P. 81(d)(5).\\nII. WHETHER A LETTER CONTAINING THE DATE AND TIME OF A HEARING ALLEGEDLY MAILED TO THE RESPONDENT TWO MONTHS AFTER SERVICE OF THE RULE 4 ALIAS SUMMONS IS SUFFICIENT NOTICE OF HEARING OF RULE 81(d) MATTERS WHERE THE RULE 4 ALIAS SUMMONS DID NOT CONTAIN THE REQUIRED NOTICE OF THE DATE, TIME AND PLACE OF THE HEARING.\\nIII. WHETHER RESPONDENT'S RIGHT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA AND THE CORRELATING SECTION OF THE MISSISSIPPI CONSTITUTION WAS VIOLATED WHERE THE NOTICE OF THE TIME, PLACE AND DATE DID NOT COMPLY WITH M.R.C.P. 81(d)(5).\\nMarvin argues that the summons with which he was served on December 18, 1991, was of the wrong variety, and did not comply with the notice requirements of M.R.C.P. 81(d)(5). He notes that he was served with a Rule 4 or \\\"alias\\\" summons, which requires a written response to be delivered to the plaintiffs attorney within thirty days. Marvin contends that he should have been served with a Rule 81 summons, which does not require a response, but sets a time and place for a hearing in court concerning the matters set out in the complaint. Marvin also contends that he was not notified of the March 9, 1992, hearing on Christine's motion; in particular, he denies having received the notice Roy Perilloux certifies he mailed to Marvin on February 19, 1992.\\nChristine argues that Marvin was properly apprised of her motion for modification by service of the summons and complaint, and that the notice requirements of Rule 81 were met by the notice of hearing she claims was sent to Marvin on February 19, 1992. M.R.C.P. 81\\nM.R.C.P. 81 governs procedure in twelve categories of civil actions, including child custody actions. The comment to the Rule states:\\nRule 81(a) lists 12 categories of civil actions which are not governed entirely by the M.R.C.P. In each of those actions there are statutory provisions detailing certain procedures to be utilized . (h)ow-ever in any instance in the twelve listed categories in which the controlling statutes are silent as to a procedure, such as security for costs, form of summons and methods of service of process and notices, service and filing of pleadings, computation of time, pleadings and motions, discovery, subpoenas, judgments and the like, the M.R.C.P. govern.\\nComment, Rule 81. The statute pertaining to child custody (including modification of a custody order) is Miss.Code Ann. (1972) \\u00a7 93-5-23 (Supp.1992). It is silent concerning the procedures for summons and service of process; therefore, the M.R.C.P. govern. See Covington v. Covington, 459 So.2d 780 (Miss.1984) (where statute addressing chancery court's contempt power is silent as to methods of service of notices, M.R.C.P. govern).\\nRule 81(d)(1) provides that child support actions are \\\"triable 30 days after completion of service of process in any manner other than publication.\\\" Rule 81(d)(4) provides:\\nNo answer shall be required in any action or matter enumerated in subpara-graphs (1) and (2) above but any defendant or respondent may file an answer or other pleading or the court may require an answer if it deems it necessary to properly develop the issues .\\n(emphasis added). Finally, Rule 81(d)(5) provides:\\nUpon the filing of any action or matter listed in subparagraphs (1) and (2) above, summons shall issue commanding the defendant or respondent to appear and defend at a time and place, either in term time or vacation, at which the same shall be heard. Said time and place shall be set by special order, general order or rule of the court. If such action or matter is not heard on the day set for hearing, it may by order entered on that day be continued to a later day for hearing without additional summons on the defendant or respondent\\n(emphasis added). The Comment to Rule 81 states that section (d)(5) \\\"recognizes that since no answer is required of a defendant/respondent, then the summons issued shall inform him of the time and place where he is to appear and defend.\\\" Form ID in the Appendix to the Rules is entitled \\\"Rule 81 Summons.\\\" It notices the defendant that a complaint is attached, and provides blanks for the date, time and courthouse where the defendant should appear. It also states that the defendant may, but is not required to file an answer. A Form IA summons (an \\\"alias summons\\\"), on the other hand, notifies the defendant that he must deliver a response to the attached complaint to the plaintiffs lawyer within 30 days.\\nThe summons with which Marvin was served on December 18, 1991, was an alias summons. It stated that Marvin was required to respond within 30 days to Roy Perilloux; it did not set a time, date and place for a hearing on the complaint. In short, it did not comply with the requirements of Rule 81. \\u215b\\nIn Saddler v. Saddler, 556 So.2d 344 (Miss.1990), this Court considered whether a Rule 4 summons, served with a motion for modification of a divorce decree, was proper, where the custodial mother sought increased child support from the father. Lear, the mother, who alleged that Walter's income had substantially increased, had Walter served with the Rule 4 summons, pleadings, requests for admissions, and interrogatories. Walter did not answer any of the above. Several months later, Lear filed an application for a default judgment with an affidavit concerning Walter's finances. She also requested an evidentiary hearing to establish the precise amounts of increased child support and attorney's fees. Ten days later, a default judgment was entered, finding that Lear was entitled to an increase in child support and attorney's fees, and setting a date for a hearing three weeks later. At the hearing, the chancellor denied Walter's motion to set aside the default judgment, and ordered him to pay increased child support and attorney's fees. We reversed, holding that the entry of default was improper:\\nIt is patent and obvious that the Chancellor erred in granting the default judgment. Rule 81(d)(5) requires the issuance of summons commanding the defendant to appear and defend at a time and place at which the action is to be heard and precludes a default judgment. That kind of summons was not issued in this case.\\nSaddler v. Saddler, 556 So.2d at 346 (Miss.1990).\\nThe proper procedure under Rule 81 would have been to serve Marvin with the motion for modification and a Rule 81 summons, setting a time and date for a hearing at the Hinds Chancery Court, First Judicial District, and informing him that he was not required to respond in writing. It appears from the record that at the time Marvin was served with the motion and Rule 4 summons, no date was set for a hearing. It is clear that under Rule 81, even had Marvin been served with the correct form of summons, he would not have been required to respond in writing to the motion. The effect of the Rule 4 summons was merely to inform Marvin that a motion for modification had been filed. Such \\\"notice\\\" does not comply with Rule 81, which requires that a date and time be set for a hearing. Therefore, the Court finds that when proceeding under matters enumerated in Rule 81, a proper 81 summons must be served.\\nC.\\nAdditionally, we reverse the awards of child support and attorney's fees, and set aside the writ of garnishment on Marvin's wages. Applicable law, appropriate for consideration of these matters on remand, follows.\\nChild Support\\nIV. WHETHER AN AWARD OF CHILD SUPPORT IS PROPER WHERE COUNSEL FOR THE MOVING PARTY FAILED TO PLACE INTO THE RECORD ANY EVIDENCE OF THE RESPONDENT'S PRESENT INCOME, THE NEEDS OF THE CHILD, OR THE RESPONDENT'S PRESENT ABILITY TO PAY THE CHILD SUPPORT AWARD.\\nMarvin argues that the chancellor abused his discretion in awarding child support without taking into consideration all the relevant factors \\u2014 in particular, Marvin's ability to pay. Marvin notes that he has remarried and has custody of Tracee's sister, and contends that the evidence of his circumstances at the March 9th hearing was insufficient. He also contends that the record is similarly devoid of any evidence on Tracee's actual needs. Christine argues that the record shows that Marvin did not have difficulty paying $400.00 a month (when he was paying Christine support for both daughters), and that he is still employed at the same company at the same job; therefore, he can still afford $250.00 per month. She also argues that the chancellor's reasoning that \\\"costs have gone up,\\\" justifying an increase, was within the chancellor's discretion. Finally, she contends that since Marvin stated at the April 23rd hearing that he had no objection to paying child support, he effectively waived this issue on appeal.\\nDecisions regarding modification of child support are within the discretion of the chancellor, and this Court will reverse only where there is manifest error in findings of fact, or an abuse of discretion. Hammett v. Woods, 602 So.2d 825, 828 (Miss.1992); Lawrence v. Lawrence, 574 So.2d 1376 (Miss.1991). The party seeking modification must show a material change of circumstances of the father, mother, or children arising subsequent to the original decree. McEachern v. McEachern, 605 So.2d 809, 813 (Miss.1992); Cox v. Moulds, 490 So.2d 866, 869 (Miss.1986). The factors to be considered are 1) increased needs of children due to advanced age and maturity; 2) increase in expenses; 3) inflation; 4) relative financial condition and earning capacity of the parties; 5) health and special medical needs of the child, both physical and psychological; 6) health and special medical needs of the parents, both physical and psychological; 7) necessary living expenses of the father; 8) estimated amount of income taxes each party must pay; 9) free use of residence, furnishings, and automobile; and 10) other facts and circumstances bearing on the support as shown by the evidence. McEachern v. McEachern, 605 So.2d at 813 (Miss.1992); Adams v. Adams, 467 So.2d 211, 215 (Miss.1985).\\nIn the ease at bar, the only evidence concerning Marvin's ability to pay was Christine's testimony that he still worked at Texas Eastern, and that he had had no difficulty paying $400.00 per month when that was required. Moreover, there was no evidence presented concerning the other relevant factors \\u2014 for example, Christine's income, or lack thereof. Finally, because Marvin was not present at the March 9th hearing, he was unable to testify as to his capacity to pay, or to question Christine's statements concerning Tracee's needs.\\nIt is true that Marvin stated at the April 23rd hearing that he had no objection to paying child support. It is also true that the chancellor's award of $250.00 per month support for sixteen year old Tracee was probably reasonable. However, in reviewing an award of child support, as any matter, this Court looks to the record to see if sufficient evidence supports the chancellor's findings. See, e.g., Hammett v. Woods, 602 So.2d at 828-829 (Miss.1992) (no substantial evidence in record to support increase in support obligation). The award of child support in the amount of $250.00 per month is reversed and remanded for more complete findings on the factors articulated above, and consideration of same.\\nAttorney's Fees\\nV. WHETHER AN ATTORNEY FEES AWARD IS PROPER WHERE COUNSEL FOR THE MOVING PARTY FAILED TO PLACE INTO THE RECORD EVIDENCE OF ENTITLEMENT TO FEES, THE ATTORNEY'S TIME, ITEMIZATION OF SERVICES RENDERED, OR REASONABLENESS OF THE ATTORNEY'S HOURLY RATE.\\nVI. WHETHER A WRIT OF GARNISHMENT FOR ATTORNEY'S FEES IS VOID WHERE THE WRIT WAS EXECUTED FOUR DAYS AFTER ENTRY OF JUDGMENT.\\nFees\\nMarvin argues that the record is devoid of documentary evidence concerning the attorney's fees he was ordered to pay. Without proof of entitlement to fees, amount of attorney time, services rendered, or reasonableness of the award, he contends that the award of $550.00 must be reversed. Christine argues that the amount awarded was within the discretion of the chancellor, and should stand.\\nThis Court has many times held that the amount of attorney's fees is a matter left to the discretion of the chancellor. See, e.g., Greenlee v. Mitchell, 607 So.2d 97 (Miss.1992); Smith v. Dorsey, 599 So.2d 529 (Miss.1992); Young v. Huron Smith Oil Co., Inc., 564 So.2d 36 (Miss.1990). However, the award must be supported by sufficient evidence, and not merely \\\"plucked out of the air.\\\" Young, 564 So.2d at 40; Carter v. Clegg, 557 So.2d 1187, 1192 (Miss.1990). See also Holleman v. Holleman, 527 So.2d 90, 96 (Miss.1988). Where the evidence is insufficient, this Court will reverse the award. Karenina by Vronsky v. Presley, 526 So.2d 518, 525 (Miss.1988); McKee v. McKee, 418 So.2d 764 (Miss.1982).\\nAt the March 9th hearing, no evidence, such as a timesheet showing the number of attorney hours spent, was presented in support of the award of $550.00. The chancellor merely asked Christine what she owed Perilloux, and assigned the fee to Marvin. Moreover, this was done in Marvin's absence. In Griffin v. Griffin, 579 So.2d 1266 (Miss.1991), this Court reversed an award of attorney's fees, finding that the evidence supporting it \\u2014 which included timesheets and an affidavit setting out hours worked, hourly rates, and costs \\u2014 was insufficient. The Court noted that there was no explanation for the number of hours required, or the usual charge in the community. The Court held that the chancellor had erred in granting the award against the husband in his absence:\\n(P)arties are entitled to notice and due process. Sylvester was not present when the evidence was presented and was not given the opportunity to examine witnesses and to question the reasonableness of the award .\\nThe attorney's fee of $4,450.00 was a substantial fee and it was allowed in an ex parte hearing, regardless of the opposing parties' right to be present at the hearing.\\nGriffin v. Griffin, 579 So.2d at 1268 (Miss.1991). See also Lenoir v. Lenoir, 611 So.2d 200 (Miss.1992) (award of attorney's fees reversed and remanded, where party to whom they were assigned had not been present, and had not had opportunity to question their reasonableness). The attorney's fees Marvin was ordered to pay were assigned to him at what was, in effect, an ex parte hearing. Under Griffin v. Griffin and Lenoir v. Lenoir above, it was an abuse of discretion for the chancellor to award the fees in Marvin's absence. Furthermore, it was error for the chancellor to award the fees without sufficient supporting evidence. The award of attorney's fees against Marvin is reversed. On remand, if attorney's fees are awarded to either party, the record should contain sufficient evidence to support such an award.\\nGarnishment Proceedings\\nMarvin argues that issuing the Writ of Garnishment to Texas Eastern in the amount of $550.00 on March 16, 1992, four days after the judgment, was \\\"premature\\\" and \\\"illegal,\\\" being in violation of M.R.C.P. 62(a), which mandates an automatic 10-day stay of execution. He states that he did not have an opportunity to defend against the motion for garnishment, and that his paycheck was in fact garnished, with ensuing stigma. Chris tine contends that the garnishment was \\\"voluntarily stayed\\\" pending the hearing of Marvin's Motion for Relief of Judgment, and that no funds were withheld from Marvin's wages until his appeal was perfected without super-sedeas. Therefore, she contends, any error is moot and harmless.\\nM.R.C.P. 62 provides in part:\\n(a) Automatic Stay; Exceptions. Except as stated herein or as otherwise provided by statute or order of the court for good cause shown, no execution shall be issued upon a judgment nor shall proceedings be taken for its enforcement until the expiration of ten days after its entry or the disposition of a motion for a new trial, whichever last occurs .\\nThe record contains the following documents filed subsequent to entry of the March 12th judgment, which included the award of attorney's fees: 1) an order issued March 12th to Texas Eastern to withhold $250.00 per month of Marvin's wages for child support; 2) a \\\"Suggestion for Writ of Garnishment\\\" submitted by Roy Perilloux on March 16th against Texas Eastern in the amount of $550.00; 3) a Writ of Garnishment for $550.00 issued March 16th, and served on Texas Eastern on March 18th; Marvin's Motion for Relief and to Stay Garnishment Proceedings, filed March 20th; a Notice of Hearing on the motion for April 1st, also filed March 20th; an Answer by Texas Eastern filed April 3rd; a Renotice of Hearing for April 23rd, filed April 10th; and the chancellor's April 28th Order Denying Relief from the Judgment and Denying Stay of Garnishment Proceedings.\\nThere is no evidence that Marvin's wages were in fact garnished in the amount of $550.00. We cannot address Marvin's claim that the writ was executed .prematurely, without knowing when it was executed. See, e.g., Wallace v. State, 607 So.2d 1184, 1189 (Miss.1992) (\\\"Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them\\\"). The grant of attorney's fees is reversed; as discussed above, the record on remand should contain adequate documentation supporting any award of fees. If garnishment is again ordered, the record should contain documentation of this as well.\\nD.\\nAttorney's Fees On Appeal\\nVII. WHETHER THE APPELLANT IS ENTITLED TO ATTORNEYS FEES AND COSTS OF APPEAL WHERE HE WAS REQUIRED TO INCUR THOSE EXPENSES TO PROTECT HIS RIGHT TO CUSTODY OF A MINOR CHILD AND WHERE OTHER SUBSTANTIAL RIGHTS OF THE APPELLANT WERE VIOLATED AT THE TRIAL COURT LEVEL.\\nMarvin argues that but for Christine's failure to follow the requirements of Rule 81 in informing him of the modification hearing, he would have been present to defend his interests, and thus his Motion for Relief from Judgment and this appeal would have been avoided. He contends that because it is Christine's fault he could not defend his interests at the hearing, she should bear a part of his attorney's fees and costs incurred in his appeal.\\nChristine argues that under Miss.Code Ann. (1972) \\u00a7 11-3-23 (Supp.1992), she is entitled to collect 15% of the chancellor's award if that award is affirmed. Multiplying the number of months left in Tracee's minority (60) by the monthly award of $250.00, and adding the attorney's fees award of $550.00, she reaches a total of $15,550, fifteen per cent of which is $2332.50. Accordingly, Christine has moved for an award in this amount \\\"as a reasonable attorney's fee.\\\"\\nSection 11-3-23, providing for damages to be awarded by this Court where it affirms the judgment of a lower court, has been applied to domestic cases. See, e.g., Lumbermens Mutual Casualty Co. v. Rhodes, 459 So.2d 244 (Miss.1984). However, \\u00a7 11-3-23 applies only to unconditional affirmances on appeal. Old Secur. Casualty Ins. Co. v. Clemmer, 458 So.2d 732 (Miss. 1984). Because Christine does not prevail on appeal, she is not entitled to an award under this statute.\\nMarvin cites no authority for his argument that Christine should bear a part of the costs incurred for this appeal. An appellant has an affirmative duty to provide support for his assignments of error. Roberson v. State, 595 So.2d 1310, 1318 (Miss.1992); R.C. Petroleum, Inc. v. Hernandez, 555 So.2d 1017, 1023 (Miss.1990) This Court feels no compunction to address an assignment of error in the absence of such support. Caruso v. Picayune Pizza Hut, Inc., 598 So.2d 770, 776 (Miss.1992). Moreover, there is no merit to Marvin's argument. This Court does not award attorney's fees simply because a party was compelled to appeal to vindicate his rights, and incurred costs in doing so. We have also held that attorney's fees should not be awarded as a means to penalize. Lenoir v. Lenoir, 611 So.2d 200 (Miss.1992). Finally, Marvin presents no evidence concerning Christine's ability to pay his requested costs and attorney's fees, and made no showing that he is unable to pay them. When a party is able to pay attorney's fees, an award of such fees is inappropriate. Lenoir v. Lenoir, 611 So.2d 200, 204 (Miss.1992); Hammett v. Woods, 602 So.2d 825, 830 (Miss.1992), citing Martin v. Martin, 566 So.2d 704, 707 (Miss.1990)\\nMarvin's assignment of error seeking attorney's fees for this appeal is without merit, and is denied. Christine's motion for attorney's fees on appeal is also denied.\\nThe case is reversed and remanded for proceedings not inconsistent with this opinion.\\nREVERSED AND REMANDED.\\nHAWKINS, C.J., DAN M. LEE, P.J., and SULLIVAN, PITTMAN, BANKS and McRAE, JJ., concur.\\nSMITH, J., dissents with separate written opinion joined by PRATHER, P.J.\\n. The record contains copies of two other summons for Marvin, dated November 21, 1991, directed to his home address of 147 Powell Road in Jackson. These summons were apparently not served.\\n. Dockins had not represented Marvin in the original divorce proceedings, but had represented him in a modification of the decree.\\n. Apparently a court employee, never specifically identified in the record.\\n. This Court's finding in Covington v. Covington, 459 So.2d 780 (Miss.1984), was correct at the time it was decided based upon Rule 81 at that time. However, since Covington Rule 81 was changed. In Hunt v. Hunt, 629 So.2d 548 (Miss.1993) and Cooley v. Cooley, 574 So.2d 694 (Miss.1991), the Court decided those cases without applying amended Rule 81. Therefore, to the extent that those cases are in conflict with today's holding they are overruled. Although a Rule 81 summons must be served, we do not find that personal jurisdiction is lost once a court had personal jurisdiction over the defendant at the time of the divorce, but hold that Rule 81 matters, because of their nature, require special notice.\\n. It is noted that the award of $550.00 in this case is significantly lower than the $4,450.00 award in Griffin. It is also noted that in Gray v. Gray, 562 So.2d 79 (Miss.1990), this Court affirmed an award of $500.00 in attorney's fees as \\\"within the chancellor's discretion,\\\" while admitting that \\\"the proof offered in the case . may be insufficient.\\\" 562 So.2d at 83. However, in Gray, there was some evidence supporting the award, in the form of a statement itemizing the attorney's charges. There is no such statement in the record in the case at bar.\\n. We express no opinion concerning the merits of the attorney's fees award to Christine.\"}" \ No newline at end of file diff --git a/miss/7457581.json b/miss/7457581.json new file mode 100644 index 0000000000000000000000000000000000000000..779aa42234a96a3ee5464598ee98fb04278047a1 --- /dev/null +++ b/miss/7457581.json @@ -0,0 +1 @@ +"{\"id\": \"7457581\", \"name\": \"MADISON COUNTY BOARD OF EDUCATION, C. Melvin Ray, Shirley Simmons, J. William Caston, Olevia Crawford, Marcy Querin and Earl Harper v. Jerry L. HALE\", \"name_abbreviation\": \"Madison County Board of Education v. Hale\", \"decision_date\": \"1995-06-13\", \"docket_number\": \"No. 93-CA-01129-COA\", \"first_page\": \"1334\", \"last_page\": \"1334\", \"citations\": \"667 So. 2d 1334\", \"volume\": \"667\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:34:36.568656+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before THOMAS, P.J., KING and McMILLIN, JJ.\", \"parties\": \"MADISON COUNTY BOARD OF EDUCATION, C. Melvin Ray, Shirley Simmons, J. William Caston, Olevia Crawford, Marcy Querin and Earl Harper v. Jerry L. HALE.\", \"head_matter\": \"MADISON COUNTY BOARD OF EDUCATION, C. Melvin Ray, Shirley Simmons, J. William Caston, Olevia Crawford, Marcy Querin and Earl Harper v. Jerry L. HALE.\\nNo. 93-CA-01129-COA.\\nCourt of Appeals of Mississippi.\\nJune 13, 1995.\\nJerry R. Wallace, Wallace & Associates, Ridgeland, for appellants.\\nJohn A. Howell, Raymond, for appellee.\", \"word_count\": \"94\", \"char_count\": \"631\", \"text\": \"Appeal No. 3900 from Judgment dated September 24, 1993, Robert Louis Goza, Jr., Ruling Judge, Madison County Circuit Court.\\nBefore THOMAS, P.J., KING and McMILLIN, JJ.\\nReversed and Rendered.\\nFRAISER, C.J., BRIDGES, BARBER, COLEMAN, DIAZ, PAYNE and SOUTHWICK, JJ., concur.\\nKING, J., concurs in result only.\"}" \ No newline at end of file diff --git a/miss/7477792.json b/miss/7477792.json new file mode 100644 index 0000000000000000000000000000000000000000..83ba534e86f37383560cd416c704bf5affa30dc7 --- /dev/null +++ b/miss/7477792.json @@ -0,0 +1 @@ +"{\"id\": \"7477792\", \"name\": \"Ray Alexander GILBERT v. STATE of Mississippi\", \"name_abbreviation\": \"Gilbert v. State\", \"decision_date\": \"1992-12-10\", \"docket_number\": \"No. 91-KP-0707\", \"first_page\": \"917\", \"last_page\": \"918\", \"citations\": \"614 So. 2d 917\", \"volume\": \"614\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T00:02:14.144170+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before ROY NOBLE LEE, C.J., and BANKS and ROBERTS, JJ.\", \"parties\": \"Ray Alexander GILBERT v. STATE of Mississippi.\", \"head_matter\": \"Ray Alexander GILBERT v. STATE of Mississippi.\\nNo. 91-KP-0707.\\nSupreme Court of Mississippi.\\nDec. 10, 1992.\\nRehearing Denied March 25, 1993.\\nRay Alexander Gilbert, pro se.\\nMichael C. Moore, Afty. Gen., Mary Margaret Bowers, Sp. Asst. Atty. Gen., Jackson, for appellee.\\nBefore ROY NOBLE LEE, C.J., and BANKS and ROBERTS, JJ.\", \"word_count\": \"52\", \"char_count\": \"334\", \"text\": \"Affirmed.\"}" \ No newline at end of file diff --git a/miss/7488179.json b/miss/7488179.json new file mode 100644 index 0000000000000000000000000000000000000000..3670a671b2a6bcb5e1244c8e07dd7ee145b4baf5 --- /dev/null +++ b/miss/7488179.json @@ -0,0 +1 @@ +"{\"id\": \"7488179\", \"name\": \"The ESTATE OF Shelby BROWN, Jr., By and Through its Administrator, Shelby BROWN, Sr., Rosie Brown, Individually, and Shelby Brown, Sr., Individually v. PEARL RIVER VALLEY OPPORTUNITY, INC. and Sophia Sutton Mission Assembly\", \"name_abbreviation\": \"Estate of Brown ex rel. Brown v. Pearl River Valley Opportunity, Inc.\", \"decision_date\": \"1993-09-23\", \"docket_number\": \"No. 91-CA-159\", \"first_page\": \"308\", \"last_page\": \"313\", \"citations\": \"627 So. 2d 308\", \"volume\": \"627\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T20:40:59.656493+00:00\", \"provenance\": \"CAP\", \"judges\": \"PRATHER, P.J., and BANKS and SMITH, JJ.\", \"parties\": \"The ESTATE OF Shelby BROWN, Jr., By and Through its Administrator, Shelby BROWN, Sr., Rosie Brown, Individually, and Shelby Brown, Sr., Individually v. PEARL RIVER VALLEY OPPORTUNITY, INC. and Sophia Sutton Mission Assembly.\", \"head_matter\": \"The ESTATE OF Shelby BROWN, Jr., By and Through its Administrator, Shelby BROWN, Sr., Rosie Brown, Individually, and Shelby Brown, Sr., Individually v. PEARL RIVER VALLEY OPPORTUNITY, INC. and Sophia Sutton Mission Assembly.\\nNo. 91-CA-159.\\nSupreme Court of Mississippi.\\nSept. 23, 1993.\\nRehearing Denied Dec. 23, 1993.\\nLance L. Stevens, Stevens & Ward, Jackson, for appellant.\\nMichael Adelman, Dorrance Aultman, Aultman Tyner McNeese & Ruffin, Hatties-burg, for appellee.\\nPRATHER, P.J., and BANKS and SMITH, JJ.\", \"word_count\": \"3339\", \"char_count\": \"20088\", \"text\": \"BANKS, Justice,\\nfor the Court:\\nHere we are asked to reverse a summary judgment granted in favor of the Pearl River Valley Opportunity, Inc. on grounds that the action is barred by the exclusive remedy provisions of the workers' compensation act. Resolution turns on the question of whether the deceased was acting within the scope of his employment, a question previously answered in the negative in workers' compensation proceedings. The circuit court answered affirmatively. We reverse.\\nI\\nOn June 30, 1987, Shelby Brown drowned in the swimming pool at the Sophia Sutton Mission Assembly (Sophia Sutton) in Pren-tiss, Jefferson Davis County, Mississippi, where he worked as a summer employee. Shelby Brown was sixteen at the time. He had been hired through the Summer Youth Employment Training Program (hereinafter \\\"SYETP\\\") administered by Pearl River Valley Opportunity, Inc. (hereinafter \\\"PRVO\\\"). Brown and two other youths had been placed at Sophia Sutton that summer as aids to the groundskeeper. Brown died during his working hours at the mission.\\nA claim for workers' compensation benefits was filed on behalf of Shelby Brown's estate with PRVO's insurance carrier. The carrier ultimately denied benefits, claiming that Shelby Brown was acting outside the scope of his employment at the time he died. Brown's estate subsequently contested the denial of benefits to the Mississippi Workers' Compensation Commission. The parties made stipulations on the facts. The stipulations included an agreement that an accurate presentation of the facts surrounding Shelby Brown's drowning was contained in the deposition of Frank Armstrong, Shelby Brown's immediate supervisor at Sophia Sutton. Through an Order dated June 8, 1989, an administrative law judge ruled that the case was controlled by Collier v. Texas Construction Company, 228 Miss. 824, 90 So.2d 390 (1956). He also said, \\\"decedent, in entering the fenced-in pool area and jumping into the pool did so for his own benefit, turning aside from business of his employer and engaging in 'activity wholly unrelated to the employment and not in any manner incidental to it.'\\\" citing Collier v. Texas Construction Company, 228 Miss. at 829, 90 So.2d at 391. The administrative law judge ruled that Shelby Brown's drowning was excluded from coverage under the Mississippi Workers' Compensation Act.\\nWithout appealing the administrative law judge's decision to the Mississippi Workers' Compensation Commission, Shelby Brown's parents and his estate filed a wrongful death action in the Jefferson Davis County Circuit Court. They named PRVO, Sophia Sutton Mission Assembly, and John Does 1 and 2 as defendants. Plaintiffs alleged that Sophia Sutton Mission Assembly had been negligent in: 1) failing to reasonably exclude Shelby Brown from the swimming pool area; 2) failing to warn Shelby Brown of imminent dangers associated with his entry into the pool area and the pool itself; 3) failing to keep the Assembly pool reasonably clean and clear; 4) failing to reasonably and adequately train the Assembly employees at the scene in the areas of emergency life-saving procedures; 5) failing to take reasonable measures to resuscitate Brown; and 6) failing to otherwise act in a reasonable manner. They claimed PRVO had been negligent in: 1) placing Shelby Brown at a worksite with an ultrahazardous condition without any inspection; 2) failing to warn Shelby Brown of that condition; 3) failing to remove Shelby Brown from the Assembly premises; and 4) failing to demand immediate remedy of the alleged ultrahazardous condition. They also contended that PRVO was vicariously liable for the actions of Sophia Sutton, because PRVO acted as an agent, representative, or indem-nitor of Sophia Sutton. Additionally, Plaintiffs contended the omissions they attributed to PRVO and Sophia Sutton made both defendants grossly negligent and therefore suitable for punitive damages.\\nPRVO and Sophia Sutton were each served with notice of the institution of the action on September 13, 1990. Both defendants answered by denying all allegations of negligence and claiming that Shelby Brown's actions were the sole and proximate cause of his death. Sophia Sutton filed a motion for summary judgment on December 12, 1990. For purposes of the motion, they argued that Shelby Brown had been within the scope of his employment when he drowned, contrary to their posture before the Workers' Compensation Commission. Because the decedent was within the scope of his employment, contended Sophia Sutton, the decedent's estate and the decedent's parents were barred by the exclusivity provisions of the Workers' Compensation Act from bringing a common law wrongful death suit. The Jefferson Davis County Circuit Court agreed. The court issued a Memorandum Opinion and Order to this effect on February 5, 1993. Plaintiffs filed timely notice of appeal to this Court.\\nII\\nDuring the summer of 1987, PRVO administered a federally-funded Summer Youth Employment Training Program in the Pren-tiss, Mississippi, area. PRVO received applications for positions in the program, selected the participants, and selected the worksites where the program participants would be placed.\\nShelby Brown, then a sixteen-year-old junior at Prentiss High School, was selected and assigned to work at the Sophia Sutton Mission Assembly. Sophia Sutton's activities included operating a Head Start Program. Participants in the Summer Youth Employment Program were generally assigned to the site nearest their homes. Once Shelby was placed at Sophia Sutton, Sophia Sutton assigned Shelby his duties and supervised his work. Shelby was paid through PRVO.\\nShelby and two other youths, Tommy Newsome and Alfred Gholar, were assigned to work under the supervision of Frank Armstrong, who was responsible for grounds-keeping at Sophia Sutton. Armstrong was approximately 71 years of age at that time. On the afternoon of June 30, 1987, Armstrong assigned the three boys to the task of hoeing grass away from the sidewalk outside the fence surrounding the Sophia Sutton swimming pool. Pursuant to orders from Rev. J.E. Wells, the General Administrator for the Sophia Sutton Mission Assembly, Armstrong went into the pool area to., pull grass from between the cracks of the concrete around the swimming pool. The gate to the swimming pool was generally locked during that summer. The pool had not been open since August of the preceding year.\\nWhile Armstrong was pulling grass from the pool area, the boys stopped their hoeing work and entered the open gate to the pool area. On the boys' first day at work, each of them had responded to questioning from Rev. Wells that they could not swim, and Rev. Wells claims to have told them to stay away from the pool area. Shortly after the boys entered the pool area, Shelby Brown took off his shirt, hat, and shoes, and began playing in the shallow end of the pool. Subsequently, he got out of the shallow end and walked around and dove into the deep end of the pool, which measured twelve feet in depth. Shelby's head came up once, and he did not ask for any help or show any signs of struggling. After Shelby had been under the water for an inordinate amount of time, the other two youths and Armstrong became concerned. The two boys took a long pole and poked around under the water for Shelby's body. Visibility into pool was limited, because the water was \\\"muddy and murky, very unclean\\\"; during the many months the pool had been out of use, debris had gathered and fallen into the pool. The boys had no success in locating Shelby's body, and eventually Armstrong yelled for help. Like Shelby's two co-workers, Armstrong could not swim. Cleavy Bryant, a bus driver and janitor for Head Start, came out and located Shelby's body with a pole. Bryant then jumped into the pool and removed Shelby's body from the water. Armstrong does not recall any significant resuscitation efforts being undertaken; apparently, no one at the pool knew how to administer' any such techniques. Emergency medical technicians were called to the scene, but they apparently arrived too late to save the life of Shelby Brown.\\nThe court granted summary judgment to Sophia Sutton on the ground that Shelby Brown had been acting within the scope of his employment when he died. Plaintiffs have appealed the circuit court's judgment to this Court. They present the single issue:\\nWas Shelby Brown acting within the scope of his employment when he drowned, so that Appellants are barred from bringing a wrongful death action on his behalf by the exclusivity provisions of the Mississippi Workers' Compensation Act?\\nIII\\nSection 71-3-7, Mississippi Code Ann. (1972), provides that \\\"Compensation [from an employer's workers' compensation insurance] shall be payable for disability or death of an employee from injury or occupational disease arising out of and in the course of employment, without regard to fault as to the cause of the injury or occupational disease.\\\" Miss. Code Ann. \\u00a7 71-3-7 (1972) (emphasis added). As quid pro quo to employers for incurring no-fault liability, \\u00a7 71-3-9 of the Mississippi Code provides:\\nThe liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death-\\nMiss.Code Ann. \\u00a7 71-3-9 (1972). So, clearly, if Shelby Brown's death arose out of and was in the course of his employment, Shelby Brown's parents and his estate are barred by \\u00a7 71-3-9 from bringing this wrongful death action.\\nThis Court has said on countless occasions that summary judgments should not be granted unless the movant successfully demonstrates \\\"that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.\\\" See, e.g., Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983). Further, all evidence must be considered in the light most favorable to the non-moving party. Brown at 362. Given these standards, the inquiry for the Court in the instant ease becomes whether the record shows, without genuine issue, that Shelby Brown's drowning arose out of and occurred-in the course of his employment at Sophia Sutton.\\nOver the years, this Court has established as a general proposition that \\\"an injury arises out of an employment when but only when there is a causal connection between such injury and the conditions under which the work is required to be performed.\\\" Persons v. Stokes, 222 Miss. 479, 485, 76 So.2d 517 (1954); Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 59 So.2d 294 (1951). \\\"It is not sufficient that the employee is at the place of his employment at the time of the accident and doing his usual work.\\\" Persons v. Stokes, 222 Miss. at 486, 76 So.2d at 519; Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 59 So.2d 294. In Persons v. Stokes, the Court expounded on the nature of the required causal connection by saying, \\\"It is, of course, basic that in order for an injury to be compensable under workmen's compensation acts it is necessary that the injury result from some risk to which the employment of the claimant exposes him.\\\" 222 Miss. at 487, 76 So.2d at 519.\\nWith respect to the \\\"in the course of employment\\\" requirement, the Court has said:\\n[I]t may be stated as a very general proposition that an injury occurs 'in the course of the employment when it takes place within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto, or, as sometimes stated, where he is engaged in the furtherance of the employer's business.\\nBivens v. Young Drilling Co., 251 Miss. 261, 273, 169 So.2d 446 (1964); Persons, 222 Miss. at 486, 76 So.2d at 519. \\\"An activity is related to the employment if it carries out the employer's purposes or advances his interests directly or indirectly.\\\" Bivens v. Young Drilling Co., 251 Miss. at 274, 169 So.2d at 451 (1964); Persons, 222 Miss. at 486, 76 So.2d at 519. As a corollary, the Court has said, \\\"If a servant steps aside from the master's business for some purpose of his own disconnected with his employment, the relation of master and servant is temporarily suspended and this is so 'no matter how short the time, and the master is not liable for his acts during such time.' \\\" Persons, 222 Miss. at 486, 76 So.2d at 519 (quoting Stovall v. Jepsen, 195 Miss. 115, 13 So.2d 229); Accord Breland & Whitten v. Breland, 243 Miss. 620, 626, 139 So.2d 365 (1962). The Court has escaped the potential harshness of this rule on at least two occasions by saying:\\nIn order to render an injury and death noncompensable on the ground that an employee working for the master had deviated from his duties, the testimony must be sufficient to constitute an abandonment and a mere deviation or departure by a servant from a strict course of duty, does not in and of itself constitute such a departure from the master's business as to relieve a master from liability for the servant's act on the ground that the servant has deviated from his service.\\nWebb v. Hunter, 431 So.2d 1131, 1133 (Miss.1983); M & W Construction Co. v. Dependents of Bugg, 241 Miss. 133, 143-44, 129 So.2d 631, 634.\\nThe circuit court arrived at its conclusion that Shelby Brown's drowning occurred within the scope of his employment by relying on the case of Webb v. Hunter, 431 So.2d 1131 (Miss.1983). In Webb, a workman for a construction company drowned during the completion of a contract to lay \\\"rip-rap\\\" on a stream bank. 431 So.2d at 1131. Laying rip-rap required the construction employees to, first, level the stream bank with construction equipment and dig a toe ditch along the lower edge of the stream where the rip-rap was to be laid. The employees would then have to hand pick debris from the entire surface of the bank, so that what is known as filter cloth could be laid by hand. The rip-rap would then be laid by hand on the filter cloth. Immediately before the decedent drowned, he had removed his shoes and began working in the toe-ditch, pursuant to directions from his supervisor. 431 So.2d at 1132. The toe-ditch contained approximately two feet of water, which had seeped in from the stream. Id. Subsequently, some of the decedent's co-workers heard a splash and turned around to see the decedent struggling in the much deeper water of a blow hole in the stream. Id. The blow hole ran up to the edge of the toe-ditch. Id. The decedent began calling for help, but he disappeared and drowned before help could reach him. Id.\\nThe employer denied workers' compensation liability, claiming that the decedent was not performing services in the course of his employment when he drowned, but was instead swimming on a personal frolic. Id. An administrative law judge agreed. Id. His finding was affirmed by a two-one majority of the Workers' Compensation Commission, and their affirmance was upheld by the Attala County Circuit Court. Id.\\nOn appeal, this Court held that the opinions of the administrative law judge, the majority of the commissioners, and the circuit court were clearly erroneous. Id. The Court saw the evidence as clearly insufficient to establish that the decedent had abandoned his job duties. Id. at 1133-34. The Court noted that it was undisputed that immediately before the decedent was seen struggling in the deep hole in the stream, he was out in a swamp at the edge of that hole performing his employment duties. Id. at 1133. No one knew exactly how he got out into the water where he drowned. Id. at 1133. The decedent was barefooted and at a slippery area. Id. In the Court's eye, the more probable explanation for the decedent's presence in the deep water was that he slipped and fell into it, as opposed having engaged in a swimming \\\"frolic.\\\" Id. In any event, the Court felt that under the circumstances of the case, it would be \\\"a complete miscarriage of justice . to hold that the deceased was not in a place in which he was put by his employer at the time of his death.\\\" Id.\\nThe facts of the instant case are clearly not analogous to Webb, however. Shelby Brown was not required by his employment duties to be in the vicinity of the hazard which took his life \\u2014 the Sophia Sutton swimming pool. In fact, Dr. J.E. Wells, the general administrator for Sophia Sutton, testified that he specifically told Shelby and his co-workers to stay away from the swimming pool, because they could not swim. Moreover, at the time Shelby and his co-workers entered the pool area, they were supposed to be outside the fence hoeing grass away from the sidewalk. They were not beckoned by their supervisor to enter the swimming pool gate or otherwise instructed to cease performing the chore he had assigned them. The case at bar, then, appears virtually opposite to Webb.\\nThis case is far more analogous to the case relied upon by the administrative law judge, Collier v. Texas, 228 Miss. 824, 89 So.2d 855 (1956). In Collier, a workman drowned after he dived into a river to cool off. The decedent and his co-workers had been assigned to the task of transporting drinking water by motor boat from one side of the Pascagoula River to the other, so that it could be given to other employees engaged in construction work. While in transit across the river, three workers, including the decedent, determined among themselves that they would dive into the water and swim to the bank. One of the boys had asked permission of the foreman for the boys to dive into the water and swim ashore, but was told by the foreman that if they did so they \\\"would be on their own.\\\" 228 Miss. at 827, 89 So.2d at 856. The Court held that the decedent's death did not arise out of and in the course of his employment. Instead, they said, the decedent was engaging in unsanctioned recreational activities that served to satisfy his own interests and were wholly unrelated to performance of his employment duties. 228 Miss. at 828, 89 So.2d at 857-858.\\nThat holding is just as supportable when applied to Shelby Brown's conduct in the case at bar. If anything, the facts of the instant case are more supportive of a finding that the decedent's death did not \\\"arise out of and in the course of' of his employment. In Collier, the decedent's employment did at least require him to be on the water hazard, which caused his death. Shelby Brown was supposed to be performing other tasks away from the swimming pool, and he had been specifically instructed to stay away from the pool. Certainly, there is no genuine fact to support an opposite conclusion \\u2014 that Shelby Brown's death arose out of and in the course of his employment. The circuit judge erred in concluding that Pearl River Valley Opportunity, Inc. was entitled to summary judgment as a matter of law.\\nCONCLUSION\\nFor the foregoing reasons the judgment of the circuit court is reversed and this matter is remanded to that court for further proceedings.\\nREVERSED AND REMANDED.\\nHAWKINS, C.J., DAN M. LEE and PRATHER, P.JJ., and SULLIVAN, PITTMAN, McRAE, JAMES L. ROBERTS, Jr., and SMITH, JJ., join this opinion.\\n. Appellants do not raise the issue of collateral estoppel with regard to the litigation of the scope of employment issue before the workers' compensation commission. Accordingly, we do not reach that issue. See, M.E.S.C. v. Philadelphia Mun.Sep.Sch.D., 437 So.2d 388, 395-398 (Miss.1983).\"}" \ No newline at end of file diff --git a/miss/7518909.json b/miss/7518909.json new file mode 100644 index 0000000000000000000000000000000000000000..b9ab1c664dc9f7017a4b6c49d7ea0784b8c1fe49 --- /dev/null +++ b/miss/7518909.json @@ -0,0 +1 @@ +"{\"id\": \"7518909\", \"name\": \"George OWENS v. STATE of Mississippi\", \"name_abbreviation\": \"Owens v. State\", \"decision_date\": \"1989-12-20\", \"docket_number\": \"No. 07-KA-58802\", \"first_page\": \"325\", \"last_page\": \"326\", \"citations\": \"554 So. 2d 325\", \"volume\": \"554\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T01:26:11.315260+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before ROY NOBLE LEE, C.J., and SULLIVAN and PITTMAN, JJ.\", \"parties\": \"George OWENS v. STATE of Mississippi.\", \"head_matter\": \"George OWENS v. STATE of Mississippi.\\nNo. 07-KA-58802.\\nSupreme Court of Mississippi.\\nDec. 20, 1989.\", \"word_count\": \"63\", \"char_count\": \"409\", \"text\": \"Appeal No. 9851-C from Judgment dated May 20, 1987, H. Gerald Hosemann, Ruling Judge, Warren County Circuit Court.\\nM. Marcia Smalley, Jackson, for appellant.\\nMike C. Moore, Atty. Gen., Wayne Snuggs, Asst. Atty. Gen., Jackson, for ap-pellee.\\nBefore ROY NOBLE LEE, C.J., and SULLIVAN and PITTMAN, JJ.\\nAffirmed.\"}" \ No newline at end of file diff --git a/miss/7531469.json b/miss/7531469.json new file mode 100644 index 0000000000000000000000000000000000000000..23e28f738ab070836b8b4c76c2ae8e66ae2948e2 --- /dev/null +++ b/miss/7531469.json @@ -0,0 +1 @@ +"{\"id\": \"7531469\", \"name\": \"Horace WILLIAMS v. STATE of Mississippi\", \"name_abbreviation\": \"Williams v. State\", \"decision_date\": \"1991-11-20\", \"docket_number\": \"No. 90-KA-0538\", \"first_page\": \"1278\", \"last_page\": \"1280\", \"citations\": \"589 So. 2d 1278\", \"volume\": \"589\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T22:50:19.488035+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before HAWKINS, P.J., and PITTMAN and McRAE, JJ.\", \"parties\": \"Horace WILLIAMS v. STATE of Mississippi.\", \"head_matter\": \"Horace WILLIAMS v. STATE of Mississippi.\\nNo. 90-KA-0538.\\nSupreme Court of Mississippi.\\nNov. 20, 1991.\\nRoger Mathes, Greenwood, for appellant.\\nMike C. Moore, Atty. Gen., Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.\\nBefore HAWKINS, P.J., and PITTMAN and McRAE, JJ.\", \"word_count\": \"1003\", \"char_count\": \"6016\", \"text\": \"PITTMAN, Justice,\\nfor the Court:\\nI.\\nHorace Williams was riding in an automobile on the night of M\\u00e1rch 10, 1989, when the vehicle was stopped by law enforcement officers. Williams was found to be in possession of 2,268.9 grams of marijuana and a large sum of money. Indicted, tried, and convicted in the Circuit Court of Leflore County of possession of marijuana with intent to sell or deliver, he was sentenced to serve twenty-five (25) years in the Mississippi Department of Corrections. Williams appeals contending the trial court committed reversible error in refusing to grant a requested jury instruction. Finding no error in the denial of the instruction, we affirm.\\nII.\\nThe refused instruction (D-2) suggested in an article written by Vincent T. Bugliosi, attorney of the California Bar entitled \\\"Not Guilty and Innocent \\u2014 The Problem Children of Reasonable Doubt\\\" states:\\nThough you are naturally and properly concerned with the question of whether the defendant in this case is guilty or innocent of the crime for which he is presently standing trial, the issue for you, the jury, to determine is not the defendant's guilt or innocence. In other words, it is not to determine whether he committed the crime charged in the indictment. The issue for you to determine is whether or not the prosecution has met its legal burden of proving guilty beyond a reasonable doubt. These two issues are not the same.\\nStated another way: To say one is guilty is to say he commited [sic] the crime, to say one is innocent is to say he did not commit the crime. In American criminal jurisprudence, however, the legal term \\\"not guilty\\\" is not totally synonymous with innocence. \\\"Not guilty\\\" is a legal finding by the jury that the prosecution has not met its burden of proof. A \\\"not guilty\\\" verdict based on the insufficiency of the evidence can result from one of the two states of mind on your part. That you believe the defendant is innocent and did not commit the crime; or, although you do not necessarily believe he is innocent, and even tend to believe he did commit the crime, the prosecution's case was not sufficiently strong to convince you of his guilt beyond a reasonable doubt. What flows from this is that you do not have to believe the defendant is innocent in order to return a verdict of \\\"not guilty\\\".\\nThe Bugliosi article suggests that jurors be given more definitive instructions on the difference between the effect of a verdict of \\\"not guilty\\\" and \\\"guilty.\\\" The proposed instruction (D-2) would, in effect, add a third tier to our present two-verdict system (guilty or not guilty) which comports with Scotland's three-verdict system (guilty, not guilty, not proven).\\nWilliams overlooks the effect of the burden of proof instructions and a presumption of innocence instruction granted by the trial court which adequately answer the arguments set forth in Attorney Bugliosi's article. The court instructions to the jury stated:\\nThe law presumes every person charged with the commission of a crime to be innocent. This presumption places upon the State the burden of proving the Defendant guilty beyond a reasonable doubt. The presumption of innocence attends the Defendant and prevails unless overcome by evidence which satisfies the jury of his guilty [sic] beyond a reasonable doubt. The Defendant is not required to prove his innocence.\\n\\nThe burden of proving the Defendant guilty of every material element of the crime with which he is charged is upon the State of Mississippi. Before you can return a verdict of guilty, the State must prove to your satisfaction beyond a reasonable doubt that the Defendant is guilty.\\nAdditionally, Williams requested and the court granted him instruction D-4 which stated:\\nThe Court instructs you that under the law no jury should nor has the right to convict the defendant of a crime upon mere suspicion, regardless of how strong that suspicion may be nor simply because there may be a preponderance of evidence against the defendant, nor merely because there is or may be a reason to suspect the defendant is guilty. The Court now instructs you that suspicion, no matter how strong or how great or how convincing, never rises to the dignity of evidence under the law, and before a jury on oath can lawfully convict, they must be convinced upon evidence and evidence alone that the defendant is guilty beyond a reasonable doubt.\\nIt is not necessary for our decision to express approval or disapproval of instruction D-4 requested and granted to Williams.\\nThe jury was told in bold and simple terms that Williams was not required to prove his innocence and that the burden was on the State to prove him guilty be yond a reasonable doubt of the crime charged in the indictment before they could convict. The trial court is not required to instruct the jury over and over on a principle of law. Laney v. State, 486 So.2d 1242, 1246 (Miss.1986). The instructions, when read together, fully and fairly instructed the jury on the presumption of Williams' innocence and the State's burden of proof.\\nWilliams' argument is premised on the alleged need to define reasonable doubt, yet we have held that reasonable doubt defines itself and needs no definition by the court. Barnes v. State, 532 So.2d 1231, 1235 (Miss.1988). Moreover, the proffered instruction was confusing and could have misled the jury. Its refusal was not error. Sudduth v. State, 562 So.2d 67, 72 (Miss.1990).\\nCONVICTION OF POSSESSION OF MARIJUANA WITH INTENT TO SELL OR DELIVER, AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.\\nROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and PRATHER, ROBERTSON, SULLIVAN, BANKS and McRAE, JJ., concur.\"}" \ No newline at end of file diff --git a/miss/7539824.json b/miss/7539824.json new file mode 100644 index 0000000000000000000000000000000000000000..f3efb4bd1186a236e9b500b50759e48dfbbf67cf --- /dev/null +++ b/miss/7539824.json @@ -0,0 +1 @@ +"{\"id\": \"7539824\", \"name\": \"Michael S. HUMPHRIES v. Ellen Sue HUMPHRIES\", \"name_abbreviation\": \"Humphries v. Humphries\", \"decision_date\": \"1989-11-29\", \"docket_number\": \"No. 89-CA-0325\", \"first_page\": \"1131\", \"last_page\": \"1131\", \"citations\": \"553 So. 2d 1131\", \"volume\": \"553\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:13:17.857093+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before ROY NOBLE LEE, C.J., and SULLIVAN and PITTMAN, JJ.\", \"parties\": \"Michael S. HUMPHRIES v. Ellen Sue HUMPHRIES.\", \"head_matter\": \"Michael S. HUMPHRIES v. Ellen Sue HUMPHRIES.\\nNo. 89-CA-0325.\\nSupreme Court of Mississippi.\\nNov. 29, 1989.\\nKent F. Hudson, Hudson & Gamble P.A., Hattiesburg, for appellant.\\nJames D. Johnson, Hattiesburg, for ap-pellee.\", \"word_count\": \"61\", \"char_count\": \"408\", \"text\": \"Appeal No. 11,128 from Judgment dated Sept. 01, 1988, Howard L Patterson, Jr., Ruling Judge, Lamar County Chancery Court.\\nBefore ROY NOBLE LEE, C.J., and SULLIVAN and PITTMAN, JJ.\\nAffirmed.\"}" \ No newline at end of file diff --git a/miss/7541856.json b/miss/7541856.json new file mode 100644 index 0000000000000000000000000000000000000000..79d54875fee0eedace57429375e8e93e9c84a875 --- /dev/null +++ b/miss/7541856.json @@ -0,0 +1 @@ +"{\"id\": \"7541856\", \"name\": \"Melvin L. DUNN v. STATE of Mississippi\", \"name_abbreviation\": \"Dunn v. State\", \"decision_date\": \"1989-06-28\", \"docket_number\": \"No. 58526\", \"first_page\": \"42\", \"last_page\": \"46\", \"citations\": \"547 So. 2d 42\", \"volume\": \"547\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T23:28:11.289723+00:00\", \"provenance\": \"CAP\", \"judges\": \"ROY NOBLE LEE, C.J., DAN M. LEE, P.J., and PRATHER, ROBERTSON, SULLIVAN, PITTMAN and BLASS, JJ., concur.\", \"parties\": \"Melvin L. DUNN v. STATE of Mississippi.\", \"head_matter\": \"Melvin L. DUNN v. STATE of Mississippi.\\nNo. 58526.\\nSupreme Court of Mississippi.\\nJune 28, 1989.\\nTrent L. Howell, Water Valley, for appellant.\\nMike Moore, Atty. Gen. by Deirdre D. McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.\", \"word_count\": \"2564\", \"char_count\": \"13879\", \"text\": \"HAWKINS, Presiding Justice,\\nfor the Court:\\nMelvin L. Dunn appeals from his Union County circuit court conviction of arson of a dwelling. Because of the erroneous admission into evidence of his confession, given after promises and intimations of help from a law enforcement officer, we reverse and remand.\\nFACTS\\nDunn was employed as an emergency room technician at the Union County Hospital on February 3, 1986. He and his wife Molly were separated. The two owned a residence on 514 Madison Street in New Albany. Shortly before midnight that night their house was discovered afire. No one was at home at the time. Dunn was located at his parents' home in Yalobusha County and informed of the fire. He and his parents returned to New Albany. They went to the police station, and thence to the fire station and talked with fire chief Bill McGill, who detected the smell of gasoline on Dunn's shoes. While Dunn was at the fire station a second call came in that the house was again on Tire.\\nDunn returned with his parents to Yalo-busha County. McGill was suspicious of the fire being of incendiary origin, and notified Mike Ivy, a state fire marshal.\\nDunn and David Grisham, the chief of police of New Albany, were personally acquainted, having known one another for approximately five or six years. Mrs. Gris-ham also worked at the emergency \\\"department,\\\" according to Dunn.\\nOn February 5, around noon, Grisham called Dunn (who had returned to work) to come to the New Albany police station for questioning. There he was given a form Miranda warning at 12:45 p.m., and questioned about the fire. He denied having set the fire.\\nDunn was then taken to Tupelo where he was given a polygraph examination at the Tupelo City Hall by Jerry Crocker, detective with the Tupelo police department. The test indicated Dunn was lying. He was informed that the test showed he was not telling the truth. Dunn admitted orally-setting the house on fire, and was then taken to the Tupelo police department where he was again given the Miranda warning, and again gave a statement, reduced to writing, in which he admitted setting the house on fire. Ivy typed the written confession.\\nDunn was indicted by the Union County grand jury on February 20, 1986, for felo-niously and maliciously setting fire to the house belonging to him and his wife, a crime under Miss. Code Ann. \\u00a7 97-17-1 (1972).\\nAt a hearing on the motion to suppress both the oral and written confession, it developed that Grisham had taken Dunn aside before they went to Tupelo and after he had taken the polygraph, and attempted to persuade him to tell the truth about the fire. Grisham testified as follows:\\nQ. Now, Chief Grisham, just before you all left to go to Tupelo, you had an opportunity to speak to Melvin a few moments outside of the Deputy Fire Marshal's presence, did you not?\\nA. That's correct.\\nQ. And at that time, I believe you indicated that it would be to his best interest to tell him if he knew anything about the fire.\\nA. That's correct.\\nQ. And I believe you said that you would help him any way you could if he would tell all he knew about the fire.\\nA. I told him he would be better off to tell the truth about the fire.\\n\\nQ. Did he fail the lie detector?\\nA. I was informed by Mr. Crocker that he failed the lie detector test.\\nQ. All right, sir, and you told Melvin Dunn, one of you, I believe it was you, you told Melvin Dunn that he failed the lie detector tests; that it showed he did know something about the origin of the fire he was not telling and that, again, that it would be in his best interest if he would give a statement concerning exactly what happened concerning the fire.\\nA. He was advised by me that he had failed the lie detector test. I informed Mr. Dunn that if he was lying about the situation that he was not telling the truth, and it would be better off if he would tell us the truth about what happened in regard to the fire. There was no promises made of anything to be done for Mr. Dunn if he would tell about the fire, only the pure fact if he would tell the truth he would be better off. I told Mr. Dunn I didn't think he could live with hisself [sic] if he didn't tell us the truth about the fire.\\nQ. And you also indicated you would do all you could to help him if he would make a statement, did you not?\\nA. I told him I would do what ever was legal within my realms to help. [Emphasis added]\\nQ. All right, sir, and you have known Mr. Dunn for a long time, and he has known you for a long time, hasn't he?\\nA. I have known him ever since he's been here, how many years.\\nQ. I believe Mrs. Grisham, your wife, worked at the same place he does.\\nA. That's correct.\\nQ. And she comes in contact with him. You are aware of this.\\nA. Yes, sir, every day he is working.\\nQ. And because of your position as Chief of Police and because of his position as EMT at the hospital, I suppose you all's paths cross, and you have occasion to work together.\\nA. Quite often.\\nQ. So, he had every reason in the world to trust you, did he not?\\nA. I don't think he has any reason not to.\\nDunn testified as follows:\\nA. . So, Mike Ivy said he had to make a telephone call, then. So, me and David went out into the parking lot, and while we was standing out there, David told me it looked like somebody had poured something in my house and set it on fire in the kitchen, and then again upstairs, and he said I was their prime suspect, and said I needed to go ahead and tell them what I knew about the fire. And of course, I told him I didn't know anything about the fire. He said, well, I can understand you may be depressed and all because you are getting a separation from your wife, and then I was in financial difficulty. Of course, I don't know where he got all that information, but anyway, he said it would just be better if I went ahead and told him what I knew about the fire. I told him all I knew about the fire was what David had told me; that it had started in the kitchen, and then later, it started again upstairs, and he asked me again if I wouldn't go ahead and make a statement because he said it would be better off on me, and he would help me any way he could, and I could go on back to work and wouldn't have to go to Tupelo or anything like that. At that time, Mike came out. So, David said he had to do something here in the city. So, me and Mike Ivy, at that time, got in his car and went to Tupelo.\\nQ. Did they tell you what they were talking about when they said it would be a lot better on you?\\nA. Well, David said that, you know, it would be just a lot easier on me and a lot quicker, and we would get it all over with a lot faster if I would just go ahead and give him a statement; said he would help me all he could; said I could go ahead and come on back to work, and you know, he would just call me the next day and let me know how everything was progressing, you know. It would pretty well be a quiet thing, and we would just get on through with it, and that it wouldn't be a whole lot to it, what I acquired from the way he was talking. [Emphasis added]\\n* '\\nQ. Now, by way of summary, what was the reason that you gave any statement to the police officers that day?\\nA. Well, they kept badgering me wanting a statement of some kind, so I finally decided I would go ahead and tell them my version of what happened so they would get off my back, and' I could go on back to work.\\n\\nQ. At any time, did David Grisham or Mike Ivy or the polygraph examiner or Benny Kirk or anyone else threaten you to make you make a statement in any way?\\nA. They just kept telling me it would be to my best interest, and it would get over a lot quicker if I would give a statement.\\nQ. The essence of what they said is that it would be in your best interest to tell the truth. That's really what they were saying, wasn't it?\\nA. That wasn't what they said.\\nQ. What did they say?\\nA. Said it would be to the best of my interest to go ahead and give them a statement or confess that I done it, set the fire.\\nQ. You certainly wouldn't confess to something you didn't do, would you?\\nA. No. That's why I give them a statement.\\nDunn was tried on September 4-5, 1986, following which the jury returned a verdict of guilty, and he was sentenced to three years, with three years supervised probation.\\nLAW\\nDunn raises several assignments of error, none of which we find persuasive except his claim that his confession should have been excluded.\\nLong before Miranda warnings were mandated by the U.S. Supreme Court, it was well settled in Mississippi jurisprudence that a confession given after promises of leniency was incompetent as evidence.\\nIn Mitchell v. State, 24 So. 312 (Miss. 1898), we held that a confession given by a defendant was not voluntarily made subsequent to his being told by the sheriff that it would be \\\"best for him to tell all about it.\\\"\\nIn Johnson v. State, 89 Miss. 773, 776, 52 So. 606 (1907), a private citizen told the defendant he would intercede with the trial judge to keep him from being hanged, and \\\"also had told appellant that it would be better for him to confess, as it would go lighter with him if he told the truth.\\\" Upon appeal, we held the confessions \\\"clearly inadmissible, under the doctrine as settled in this state.\\\"\\nIn Mathews v. State, 102 Miss. 549, 59 So. 842 (1912), a black defendant fourteen years of age accused of stealing an item of jewelry had been told by the town marshal that it would be better for him to get the pin, if he would tell the truth, \\\"it would be all right,\\\" and \\\"I don't want to put you in any trouble.\\\" We held the confessions subsequently made were not free and voluntary.\\nIn Robinson v. State, 247 Miss. 609, 613, 157 So.2d 49, 51 (1963), we held a confession was inadmissible as evidence after the defendant had been told the \\\"best thing to do is come square with the State, of the City, whoever the crime was against,\\\" and that the others implicated had confessed, and \\\"the thing to do is to be square with yourself, not only with us but with the Man Upstairs, and if you don't do that, you are not trying to help yourself.\\\" We stated:\\nThe question before the Court is whether there was a promise or an inducement offered to defendant if he confessed. The test in such cases is whether the inducement is of a nature calculated under the circumstances to induce a confession irrespective of its truth or falsity; a mere exhortation or adjuration to speak the truth will not exclude a confession, but where such adjuration is accomplished by an expression that it would be better for the accused to tell the truth, some courts have refused to admit such confession.\\n157 So.2d at 51.\\nIn Agee v. State, 185 So.2d 671, 674 (Miss.1966), we held: \\\"A confession made after the accused has been offered some hope of reward if he will confess or tell the truth cannot be said to be voluntary.\\\"\\nIn Miller v. State, 243 So.2d 558 (Miss. 1971), the defendant was arrested for stealing a calf. Following his arrest the sheriff told the defendant and his mother, who wanted to get him out of jail, that he would let the boy go to the house, to be back the next morning, \\\"and he might better tell the truth about the thing, he would be better off.\\\" The next morning the defendant returned and confessed the theft. We held:\\nAlthough the statement made by the sheriff that the appellant would be better off by telling the truth was probably not intended as an inducement, yet, when it is considered under the circumstances in which it was made, we conclude it very probable that the statement caused the appellant to confess. Some of these circumstances were that the appellant was a twenty-year-old Negro youth of previous good reputation, having never been incarcerated before, who was desirous of being released from jail. These factors, when considered with the additional fact that the sheriff is the highest officer of the county, a representative of the State, speaking in his official capacity to a youth accused of a crime, cast such doubt upon the confession as to render it inadmissible in evidence. We are of the opinion the confession was not voluntarily made and that its admission constitutes reversible error.\\nId. at 559.\\nIn the recent case of Layne v. State, 542 So.2d 237 (Miss.1989), we were troubled by a patrolman's telling the accused that \\\"the best policy would be to tell the truth.\\\" However, at the suppression hearing, the defendant offered no evidence that this statement made to him by the patrolman had anything to do with his confession.\\nWe give great deference to the finding of a circuit judge that a confession was freely and voluntarily made, it being his function at the trial level to make this determination. Frost v. State, 483 So.2d 1345, 1350 (Miss.1986); Layne v. State, supra. We must hold in this case, however, that the learned judge erred in admitting the confession.\\nThis case is analogous to Miller v. State, supra. Dunn was personally acquainted with Grisham, worked with Mrs. Grisham at the hospital, and obviously had a great deal of confidence and trust in this officer. We can only conclude that under the circumstances of this case the statements made to Dunn, especially that he \\\"would do what ever was legal with my realms to help,\\\" induced the confessions. And, contrary to Layne v. State, Dunn testified that Grisham's statements were an inducement to his confessions.\\nThe confessions being inadmissible, this cause is reversed and remanded.\\nREVERSED AND REMANDED.\\nROY NOBLE LEE, C.J., DAN M. LEE, P.J., and PRATHER, ROBERTSON, SULLIVAN, PITTMAN and BLASS, JJ., concur.\\nANDERSON, J., dissents without written opinion.\"}" \ No newline at end of file diff --git a/miss/7553369.json b/miss/7553369.json new file mode 100644 index 0000000000000000000000000000000000000000..1fe271c3c3b1af528f18f6816371e3a63d2a3646 --- /dev/null +++ b/miss/7553369.json @@ -0,0 +1 @@ +"{\"id\": \"7553369\", \"name\": \"Oscar Dale STRICKLAND v. STATE of Mississippi\", \"name_abbreviation\": \"Strickland v. State\", \"decision_date\": \"1989-08-16\", \"docket_number\": \"No. 58614\", \"first_page\": \"810\", \"last_page\": \"810\", \"citations\": \"547 So. 2d 810\", \"volume\": \"547\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T23:28:11.289723+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before DAN M. LEE, P.J., and PRATHER and ROBERTSON, JJ.\", \"parties\": \"Oscar Dale STRICKLAND v. STATE of Mississippi.\", \"head_matter\": \"Oscar Dale STRICKLAND v. STATE of Mississippi.\\nNo. 58614.\\nSupreme Court of Mississippi.\\nAug. 16, 1989.\\nOscar Dale Strickland, Parchman, pro se.\\nMike Moore, Atty. Gen. by DeWitt Allred, Sp. Asst. Atty. Gen., Jackson, for appellee.\", \"word_count\": \"56\", \"char_count\": \"364\", \"text\": \"Appeal from Circuit Court, Harrison County; Frank Alexander, Judge.\\nBefore DAN M. LEE, P.J., and PRATHER and ROBERTSON, JJ.\\nAFFIRMED.\"}" \ No newline at end of file diff --git a/miss/7583509.json b/miss/7583509.json new file mode 100644 index 0000000000000000000000000000000000000000..e6a6978fcac21cf5704161d4257a8211d67182c4 --- /dev/null +++ b/miss/7583509.json @@ -0,0 +1 @@ +"{\"id\": \"7583509\", \"name\": \"In re Inquiry Concerning Justice Court Judge Ralph M. HEARN\", \"name_abbreviation\": \"In re Inquiry Concerning Justice Court Judge HEARN\", \"decision_date\": \"1987-11-25\", \"docket_number\": \"No. 58359\", \"first_page\": \"1225\", \"last_page\": \"1229\", \"citations\": \"515 So. 2d 1225\", \"volume\": \"515\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:16:08.119563+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"In re Inquiry Concerning Justice Court Judge Ralph M. HEARN.\", \"head_matter\": \"In re Inquiry Concerning Justice Court Judge Ralph M. HEARN.\\nNo. 58359.\\nSupreme Court of Mississippi.\\nNov. 25, 1987.\\nLuther T. Brantley, III, Jackson, for petitioner.\\nRobert G. Turnage, Monticello, for respondent.\", \"word_count\": \"1553\", \"char_count\": \"9904\", \"text\": \"ORDER\\nDAN M. LEE, Presiding Justice,\\nfor the Court.\\nOn June 3, 1986, the Mississippi Commission on Judicial Performance (\\\"Commission\\\") filed a formal complaint against Justice Court Judge Ralph M. Hearn, charging him with judicial misconduct constituting a violation of \\u00a7 177A, Miss. Constitution of 1890. On October 9, 1986, Judge Hearn filed an answer to the formal complaint, admitting certain parts, denying the remainder, and denying that his actions constituted judicial misconduct. On March 19, 1987, and March 20, 1987, a hearing was held before a committee of the Commission in this inquiry, with both the Commission and Judge Hearn represented by counsel. Based upon the evidence adduced at the hearing the Commission found by clear and convincing evidence that Judge Hearn had found criminal defendants not guilty without a trial or notice to the officer, that other officials had attempted to influence Judge Hearn in these cases, that the judge had improperly assessed constable fees, that he had wrongfully entered a judgment notwithstanding the verdict, that he had interfered with the orderly assignment of cases, and that he had engaged in improper conduct in the handling of criminal bad check cases. The Commission found that this conduct violated the code of judicial conduct of Mississippi judges, that it constituted willful and persistent failure to perform the duties of office, and that the conduct was prejudicial to the administration of justice and brings the judicial office into disrepute. The Commission recommended by unanimous vote that Judge Hearn be publicly reprimanded and fined $250 pursuant to \\u00a7 177A of the Mississippi Constitution. In accordance with Rule 10(D) of the Rules of the Mississippi Commission on Judicial Performance, the Commission submitted its brief in support of the record, findings and recommendations of the Commission to this Court. Judge Hearn likewise filed a brief in support of the Commission's findings and recommendations, and accepts the findings and the sanctions recommended by the Commission.\\nThe Commission's findings of fact and recommendations in the case of In Re Inquiry Concerning a Justice Court Judge (Ralph M. Hearn), No. 86-004, dated May 21, 1987, have been examined by a panel of this Court composed of Presiding Justice Dan Lee and Justices Michael D. Sullivan and Reuben V. Anderson, which panel accepts the Commission's findings of fact and recommendations and adopts and incorporates same in this Order, as follows:\\nCOMMISSION FINDINGS OF FACT AND RECOMMENDATIONS\\nINITIATION OF PROCEEDINGS\\nOn June 3, 1986, the Commission filed a Formal Complaint charging the Respon dent, Ralph M. Hearn, Justice Court Judge for Post One, Lawrence County, Mississippi, with judicial misconduct constituting a violation of Section 177A, Mississippi Constitution of 1890, as amended.\\nOn October 9, 1986, the Respondent filed an Answer to the Formal Complaint, denying the allegations of judicial misconduct in the Formal Complaint.\\nHEARING\\nOn March 19, 1987, and March 20, 1987, this cause came on for formal hearing before a duly designated Committee of the Commission, consisting of Circuit Judge Harvey S. Buck, presiding, Judge Mary T. Foretich and Dr. Cleopatra D. Thompson. The Commission was represented by Luther T. Brantley III of Jackson; the Respondent was present and represented by Robert Glenn Turnage of Monticello.\\nFINDINGS\\nBased upon the evidence presented at the hearing in this cause, the Commission finds the following by clear and convincing evidence, to-wit:\\n1.\\nDuring the period of time beginning approximately March, 1985 through March, 1986, the Respondent, in his official capacity as justice court judge, found the defendant not guilty in approximately ninety three (93) criminal cases without conducting a trial or giving notice to the arresting officer. The majority of these cases involved speeding tickets; there were also D.U.I. charges found not guilty in this manner. While there was evidence that other public officials attempted to influence the Respondent in these cases, there was no direct evidence that these influenced him.\\n2.\\nThe Respondent assessed a constable fee to the defendant in criminal cases in which the defendant was found not guilty and collected and paid said fee to the constable when, in accordance with Section 25-7-27, Mississippi Code Annotated (1986 Supp.) a constable is not entitled to a fee when the defendant is found not guilty.\\n3.\\nIn the criminal case of State vs. Danny D. Nelson the defendant was found guilty by a jury of possession of beer and of driving while his license was suspended for driving under the influence of intoxicants, and not guilty of driving under the influence. Respondent dismissed the jury, entered a judgment notwithstanding the jury verdict, and found the defendant not guilty of all charges, when Sections 11-9-143 and 99-33-9 of the Mississippi Code Annotated (1972) require a justice court judge to conform his judgment to the verdict of the jury-\\n4.\\nThe Respondent interfered with the orderly assignment of cases by the justice court clerk, as provided for by Sections 9-11-27 and 99-33-2 of the Mississippi Code Annotated (1986 Supp.). He also assigned cases to himself without authority so to do.\\n5.\\nThe Respondent engaged in improper conduct in the handling of criminal bad check cases. The Respondent accepted money from litigants in bad check cases when a justice court judge has no legal authority to receive money. He also handled felony criminal bad checks, checks in excess of $100, without authority of the county attorney or district attorney reducing said felonies to misdemeanors. However, there was no evidence that there was any misappropriation or conversion of said money.\\n6.\\nThe Respondent's conduct constitutes violations of the following Canons of the Code of Judicial Conduct of Mississippi Judges, to-wit:\\nCANON 1\\nA Judge Should Uphold the Integrity and Independence of the Judiciary.\\nAn independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.\\nCANON 2\\nA Judge should Avoid Impropriety and the Appearance of Impropriety in All His Activities.\\n(A) A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.\\n(B) A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.\\nCANON 3\\nA Judge Should Perform the Duties of His Office Impartially and Diligently.\\nThe judicial duties of a judge take precedence over all his other activities. His judicial duties include all the duties of his office prescribed by law. In the performance of these duties, the following standards apply:\\nA. Adjudicative Responsibilities.\\n(1) A judge should be faithful to the law and maintain professional competence in it. He should be unswayed by partisan interests, public clamor, or fear of criticism.\\n(3) A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity, and of his staff, court officials, and others subject to his direction and control.\\n(4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding. A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before him if he gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.\\nB. Administrative Responsibilities.\\n(1) A judge should diligently discharge his administrative responsibilities, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.\\nRECOMMENDATION\\nThe Commission therefore finds by clear and convincing evidence that the conduct of the Respondent, Justice Court Judge Ralph M. Hearn, constitutes willful and persistent failure to perform the duties of his office and conduct prejudicial to the administration of justice which brings the judicial office into disrepute as set forth in Section 177A of the Mississippi Constitution of 1890, as amended. The Mississippi Commission on Judicial Performance hereby recommend to the Mississippi Supreme Court that the Respondent be publicly reprimanded and fined $250, pursuant to Section 177A of the Mississippi Constitution.\\nRespectfully submitted,\\n/s/ Kenneth B. Robertson, Chairman\\nDated this the 21st day of May, 1987.\\nAccordingly, it is ordered that the findings and recommendations of the Mississippi Commission on Judicial Performance are accepted in full and that the Respondent, Ralph M. Hearn, be publicly reprimanded and fined $250, pursuant to \\u00a7 177A of the Mississippi Constitution.\\n. See In Re Inquiry Concerning A Judge, Jack H. Odom, 81-095, 444 So.2d 835, 836 (Miss. 1984).\"}" \ No newline at end of file diff --git a/miss/7584568.json b/miss/7584568.json new file mode 100644 index 0000000000000000000000000000000000000000..d9b06b45346c3651e9653c01c8a23b0f31df886e --- /dev/null +++ b/miss/7584568.json @@ -0,0 +1 @@ +"{\"id\": \"7584568\", \"name\": \"Maurice H. JOSEPH v. Martha Ann Rosenfield JOSEPH\", \"name_abbreviation\": \"Joseph v. Joseph\", \"decision_date\": \"1986-12-10\", \"docket_number\": \"No. 56022\", \"first_page\": \"989\", \"last_page\": \"989\", \"citations\": \"500 So. 2d 989\", \"volume\": \"500\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T17:23:05.570833+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WALKER, C.J., and PRATHER and ROBERTSON, JJ.\", \"parties\": \"Maurice H. JOSEPH v. Martha Ann Rosenfield JOSEPH.\", \"head_matter\": \"Maurice H. JOSEPH v. Martha Ann Rosenfield JOSEPH.\\nNo. 56022.\\nSupreme Court of Mississippi.\\nDec. 10, 1986.\\nRehearing Denied Feb. 4, 1987.\\nMichael B. Wallace, Walker W. Jones, III, Julie L. Sneed, Phelps, Dunbar, Marks, Claverie & Sims, .Jackson, for appellant.\\nJames Leon Young, James H. Neeld, IY, Young, Scanlon & Sessums, Jackson, for appellee.\", \"word_count\": \"72\", \"char_count\": \"483\", \"text\": \"Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.\\nBefore WALKER, C.J., and PRATHER and ROBERTSON, JJ.\\nAFFIRMED.\"}" \ No newline at end of file diff --git a/miss/7588657.json b/miss/7588657.json new file mode 100644 index 0000000000000000000000000000000000000000..904cd1973dd76444f24561dbc784a27bcc12c433 --- /dev/null +++ b/miss/7588657.json @@ -0,0 +1 @@ +"{\"id\": \"7588657\", \"name\": \"STATE of Mississippi for the Use and Benefit of Nelda M. BRAZEALE, and Nelda M. Brazeale, Individually v. Richard A. LEWIS, Individually, and United States Fidelity and Guaranty Co.\", \"name_abbreviation\": \"State ex rel. Brazeale v. Lewis\", \"decision_date\": \"1986-11-12\", \"docket_number\": \"No. 55985\", \"first_page\": \"321\", \"last_page\": \"324\", \"citations\": \"498 So. 2d 321\", \"volume\": \"498\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:42:25.882310+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before ROY NOBLE LEE, P.J., and ANDERSON and GRIFFIN, JJ.\", \"parties\": \"STATE of Mississippi for the Use and Benefit of Nelda M. BRAZEALE, and Nelda M. Brazeale, Individually v. Richard A. LEWIS, Individually, and United States Fidelity and Guaranty Co.\", \"head_matter\": \"STATE of Mississippi for the Use and Benefit of Nelda M. BRAZEALE, and Nelda M. Brazeale, Individually v. Richard A. LEWIS, Individually, and United States Fidelity and Guaranty Co.\\nNo. 55985.\\nSupreme Court of Mississippi.\\nNov. 12, 1986.\\nGary R. Parvin, Starkville, for appellants.\\nWilliam H. Ward, Ward & Rogers, Stark-ville, for appellees.\\nBefore ROY NOBLE LEE, P.J., and ANDERSON and GRIFFIN, JJ.\", \"word_count\": \"1981\", \"char_count\": \"12261\", \"text\": \"GRIFFIN, Justice,\\nfor the Court:\\nI.\\nPlaintiffs, Nelda M. Brazeale, individually, and the State of Mississippi for the Use and Benefit of Nelda M. Brazeale, filed a complaint in the Circuit Court of Oktibbeha County, Mississippi, alleging negligent maintenance and repair of a county road by defendants Richard A. Lewis, individually, and U.S.F. & G. Co., his surety, for injuries and damages Brazeale alleges were proximately caused by an accident which occurred on July 18, 1983, due to the condition of said road. Defendants filed a motion to dismiss which the lower court granted. For the reasons stated herein, we affirm the lower court's ruling.\\nII.\\nNelda M. Brazeale was involved in an accident while driving along New Light Road in Oktibbeha County, Mississippi, when she apparently lost control of her car and ran off the road after coming across various obstructions in her path. Plaintiffs amended complaint did, in fact, allege her injuries and damages were the result of numerous holes, indentations, and rough spots along the road which culminated in creating a hazardous condition and which resulted in the complained of accident.\\nIn her complaint, Brazeale charged negligence on the part of Richard A. Lewis, a member of the Board of Supervisors of Oktibbeha County, and with whom authority for supervision of the road in question lay. Brazeale's complaint conclusively delegated to Lewis the primary legal responsibility for preparing and maintaining that portion of the county road system within his district.\\nPursuant to M.R.C.P. Rules 12(b)(1) and 12(b)(6), defendants filed a motion to dismiss on the grounds that the complaint failed to state a claim upon which relief may be granted, and further that the court lacked jurisdiction over the subject matter which forms the basis of plaintiffs claim. The trial court granted the motion and plaintiffs appeal.\\nIII.\\nA.\\nThe central core of the dispute between the parties to this action involves a topic of particular interest to our judicial system but which, oddly enough, has seen precious little litigation in the State of Mississippi despite the somewhat controversial nature of its existence. We are asked today to determine the rights of an individual a private citizen as it were \\u2014 to file suit against a county officer, whose act of negligence, she alleges, serves as the proximate cause of her injuries suffered and damages incurred. In short, we are asked to ascertain once again the position and impact the doctrine of sovereign immunity holds within this state and its political subdivisions for torts committed, as well as the liability for the torts of its employees.\\nAs a side issue, we are presented with the question of the liability of Lewis's surety, U.S.F. & G. Co., should we find negligence on the part of Lewis, principal in the action.\\nB.\\nThe distinction between discretionary and ministerial acts by a government employee is directly correlated to what immunity he will enjoy in the event he has been negligent in his actions or in failing to act. The basis for extending sovereign immunity to government officials lies in the inherent need to promote efficient and timely decision-making without lying in fear of liability for miscalculation or error in those actions. The immunity defense has generally been extended to officials' discretionary acts in most states, Mississippi ranking among them.\\nIn order to allow our lawmakers and government officials to participate freely and without fear of retroactive liability in risk-taking situations requiring the exercise of sound judgment, the discretionary-ministerial distinction has evolved, and remains an integral part of our judicial system in the determination of liability of the state and its employees. In Davis v. Little, 362 So.2d 642, 643 (Miss.1978), we said that:\\nThe immunity of public officials, on the other hand, is a more limited principle, since its purpose is not directly to protect the sovereign, but rather to do so only collaterally by protecting the public official in performance of his governmental function. Given the more limited function, courts have generally extended less than absolute immunity. The most commonly recognized limitation is the distinction between discretionary acts as opposed to ministerial acts. Under this distinction, the official is immune only where that which he does in the performance of his lawful duties requires \\\"personal deliberation, decision and judgment.\\\" See Prosser, Law of Torts \\u00a7 132 (4th ed. 1971).\\nOur decision in Davis was further reinforced by the landmark case of Pruett v. Rosedale, 421 So.2d 1046 (Miss.1982). While Pruett was a much welcomed and long overdue step towards providing parties with a forum for grievances against the state, whereas this Court directed the legislature to abrogate sovereign immunity, our mandate specifically limited the liability of governmental officials to ministerial functions alone, allowing these state employees to continue their basic policy-making decisions without fear of legal retribution.\\nBecause the threshold issue is whether, as an individual supervisor for the county, Richard Lewis has an independent duty of actually repairing roads and highways in a ministerial capacity, or whether the board of supervisors, as a complete governmental body, is vested with such jurisdiction and control in a discretionary manner of carrying forth such duties of maintenance and repair of the roads, our decision naturally turns upon this functional distinction.\\nMississippi Code Annotated \\u00a7 19-3-41 (1972) provides in part that:\\nThe board of supervisors shall have within the respective counties full jurisdiction over roads, ferries and bridges.\\nIn Leflore County v. Big Sand Drainage District, 383 So.2d 501 (Miss.1980), we held that a county can have no liability except as authorized, expressly or by necessary implication, by some statute. See also Board of Supervisors of Lee County v. Payne, 175 Miss. 12, 166 So. 332 (1936); and City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682 (1917). To this extent, the Mississippi Legislature enacted Mississippi Code Annotated \\u00a7 19-13-51 which partially abrogates the sovereign immunity of the board of supervisors in its capacity as \\\"overseer\\\" of the roads, ferries and bridges within its jurisdiction.\\nThe board of supervisors of any county shall have the power, in their discretion, to allow damages sustained to stock and other property injured or destroyed while traveling along the public highways maintained by the county where such loss is caused by defects in a bridge, causeway or culvert in such highway.\\nHowever, in no way can it be said that the legislature, in so laying the foundation for abrogation of immunity in this area, has addressed even peripherally the role of an individual supervisor in his governmental capacity to repair and maintain the roads within his beat. It does, in fact, reinforce the discretionary-ministerial distinction by allowing the board as a whole the authority to make discretionary decisions with regard to the general condition and state of maintenance of county roads and bridges, thus leaving intact the board's qualified immunity for such decisions. See also Hudson v. Rausa, 462 So.2d 689 (Miss.1984), and White v. City of Tupelo, 462 So.2d 707 (Miss.1984), for further discussion of this Court's review of the distinction between discretionary and ministerial functions as performed by public employees and officials.\\nAssuming arguendo that an individual member of the board of supervisors has a ministerial duty or function to maintain the roads of his district, we recognize that, for various reasons, at least some roads may be in a state of disrepair from time to time, particularly due to the lack of funds, which would, of course, require that the main, heavily-traveled roads receive the supervisor's immediate attention. Certainly, making the determination as to which roads should be the better maintained under such conditions would be a discretionary matter with the individual member of the board, absent some personal tort committed by him.\\nC.\\nIn sum, we would deny appellant's first assignment of error alleging that the trial court erred in holding that an individual supervisor of a county within Mississippi is immune from suit for negligently maintaining a county road within his beat, for the following reasons: first, the state has not statutorily abrogated the immunity of officials acting in a capacity which serves as the substance of Brazeale's complaint (e.g. the maintenance and repair of county roads, ferries and bridges); and, secondly, the decisions involved here are discretionary ones reached by common agreement of the Oktibbeha County Board of Supervisors as a whole, and are not, as appellant contends, simple ministerial actions by Lewis in his role and capacity as an individual supervisor.\\nD.\\nBecause we have dispensed with appellant's first assignment of error in such a manner, we may approach her remaining assignments of error with our foregoing decision kept in mind.\\nAs a second assignment of error, appellant claims liability on the part of the surety for negligence by the principal, Lewis, whose acts or negligent omission thereof allegedly resulted in injury to Brazeale.\\nHeretofore we determined that Lewis enjoys the privilege of qualified immunity, and suffers no liability for his part in this action. Therefore, following the general rule as set forth in 74 Am.Jur.2d Suretyship \\u00a7 24-25 (1974), and as adopted by this Court in Irving v. Bankers' Mortgage Co., 169 Miss. 890, 151 So. 740 (1934), and then later in First Mobile Home Corp. v. Little, 298 So.2d 676 (1974), because the principal has no liability for this cause, and no liability may be imputed to its surety beyond that of its principal, U.S.F. & G. is free of any liability in this action as well.\\nE.\\nFinally, we are asked to determine whether the trial court erred in granting defendant's M.R.C.P. 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted.\\nIn Ford v. C.W. and C.T. White, 495 So.2d 494, decided October 1, 1986, this Court, in ruling on error assigned to the Chancery Court of Yalobusha County for granting to defendant a MRCP 12(b)(6) motion to dismiss, said that:\\nA 12(b)(6) motion to dismiss has replaced and become a successor to what was formerly recognized as the common law demurrer. Once the trial court entertains the motion and proceeds to sustain such motion, the effect is to forego deciding the case on its merits, simply because plaintiff did not, as required by our judicial system, state a claim upon which relief may be granted.\\nFurther, we noted that while the 12(b)(6) motion is the proper means to test for legal sufficiency of the complaint, for it to be properly granted it must appear to a certainty that the plaintiff is entitled to no relief under any set of facts presented that could be proved in support of his claim. Franklin County Co-Op v. M.F.C. Services (A.A.L.), 441 So.2d 1376 (Miss.1983); Stanton and Associates, Inc. v. Bryant Construction Co., 464 So.2d 499 (Miss.1985); and Busching v. Griffin, 465 So.2d 1037 (Miss.1985).\\nBecause of the particular statutes and case law pertinent to the plaintiff in this case, we find that all routes of action are foreclosed to her, and cannot hold that she would be entitled to relief under any set of facts that would be proven in support of her claim, given the present state and applicability of the doctrine of sovereign immunity in Mississippi. Therefore, we affirm the lower court's ruling allowing dismissal of the action pursuant to M.R. C.P. 12(b)(6) for failure to state a claim upon which relief may be granted.\\nAFFIRMED.\\nWALKER, C.J., ROY NOBLE LEE, and HAWKINS, P.JJ., and DAN M. LEE, PRATHER, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur.\"}" \ No newline at end of file diff --git a/miss/7589871.json b/miss/7589871.json new file mode 100644 index 0000000000000000000000000000000000000000..55d31be5ed60b964c5f41702e360f993189a414a --- /dev/null +++ b/miss/7589871.json @@ -0,0 +1 @@ +"{\"id\": \"7589871\", \"name\": \"Eva H. BRADLEY v. MARTHA COOPER REALTOR, INC. & Beachmark Realty Inc.\", \"name_abbreviation\": \"Bradley v. Martha Cooper Realtor, Inc.\", \"decision_date\": \"1986-11-12\", \"docket_number\": \"No. 56879\", \"first_page\": \"447\", \"last_page\": \"448\", \"citations\": \"497 So. 2d 447\", \"volume\": \"497\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T22:48:10.347554+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WALKER, C.J., and DAN M. LEE and SULLIVAN, JJ.\", \"parties\": \"Eva H. BRADLEY v. MARTHA COOPER REALTOR, INC. & Beachmark Realty Inc.\", \"head_matter\": \"Eva H. BRADLEY v. MARTHA COOPER REALTOR, INC. & Beachmark Realty Inc.\\nNo. 56879.\\nSupreme Court of Mississippi.\\nNov. 12, 1986.\\nChristopher A. Tabb, Brandon, for appellant.\", \"word_count\": \"53\", \"char_count\": \"342\", \"text\": \"Appeal from Circuit Court, Rankin County; R.L. Goza, Judge.\\nElbert E. Haley, Jr., Jackson, for appel-lees.\\nBefore WALKER, C.J., and DAN M. LEE and SULLIVAN, JJ.\\nAFFIRMED.\"}" \ No newline at end of file diff --git a/miss/7603099.json b/miss/7603099.json new file mode 100644 index 0000000000000000000000000000000000000000..557fa9fa28dfd36388b9da32e2d381c189ee32a1 --- /dev/null +++ b/miss/7603099.json @@ -0,0 +1 @@ +"{\"id\": \"7603099\", \"name\": \"Boyd L. DAVIS and Ray Ellis Davis v. Diana H. CLEMENT, Ronald R. Lott, Emelda B. Lott, Artis Mark, Jr., Sharon N. Mark, Jane W. Melton, William E. Melton, Mary Gaston Melton Buchler, Julius W. Melton, Jr., Crown Zellerbach Corporation, C.O. Trest, Marion T. Hardwick, Elizabeth W. Trest and Suellen T. Verger\", \"name_abbreviation\": \"Davis v. Clement\", \"decision_date\": \"1985-04-24\", \"docket_number\": \"No. 55239\", \"first_page\": \"58\", \"last_page\": \"63\", \"citations\": \"468 So. 2d 58\", \"volume\": \"468\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T01:25:30.911175+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WALKER, P.J., and HAWKINS and ROBERTSON, JJ.\", \"parties\": \"Boyd L. DAVIS and Ray Ellis Davis v. Diana H. CLEMENT, Ronald R. Lott, Emelda B. Lott, Artis Mark, Jr., Sharon N. Mark, Jane W. Melton, William E. Melton, Mary Gaston Melton Buchler, Julius W. Melton, Jr., Crown Zellerbach Corporation, C.O. Trest, Marion T. Hardwick, Elizabeth W. Trest and Suellen T. Verger.\", \"head_matter\": \"Boyd L. DAVIS and Ray Ellis Davis v. Diana H. CLEMENT, Ronald R. Lott, Emelda B. Lott, Artis Mark, Jr., Sharon N. Mark, Jane W. Melton, William E. Melton, Mary Gaston Melton Buchler, Julius W. Melton, Jr., Crown Zellerbach Corporation, C.O. Trest, Marion T. Hardwick, Elizabeth W. Trest and Suellen T. Verger.\\nNo. 55239.\\nSupreme Court of Mississippi.\\nApril 24, 1985.\\nConrad Mord, Tylertown, for appellants.\\nJohn T. Armstrong, Jr., Edward E. Patten, Jr., Armstrong & Hoffman, Hazle-hurst, Joseph M. Stinson, Tylertown, John Mark Weathers, James D. Johnson, Ault-man, Tyner, McNeese, Weathers & Gunn, Hattiesburg, for appellees.\\nBefore WALKER, P.J., and HAWKINS and ROBERTSON, JJ.\", \"word_count\": \"2837\", \"char_count\": \"16981\", \"text\": \"ROBERTSON, Justice,\\nfor the Court:\\nI.\\nIn this action the owners of an 80 acre tract of land in Walthall County, Mississippi, claimed that they had adversely possessed some 70 additional and adjacent acres and sought to confirm in them title thereto. At the conclusion of the would be adverse possessers' proof, the chancery court sustained the record title holders' motion to dismiss, holding the adverse possessors' purported acts of possession sporadic and ineffectual and, as a matter of law, insufficient to fly the flag of ownership over the disputed acres for the requisite ten year period. For the reasons set forth below, we affirm.\\nII.\\nBoyd L. Davis and Ray Ellis Davis, Plaintiffs below and Appellants here, commenced this civil action on February 12, 1982, by filing in the Chancery Court of Walthall County, Mississippi, their complaint to quiet and confirm title. After various pretrial proceedings, the matter was called for trial on July 25,1983, Honorable R.B. Reeves, Chancery Judge, presiding.\\nThe evidence reflects that Boyd L. Davis and Ray Ellis Davis are the owners of record title to an eighty acre tract of land consisting of the east one-half of the northwest quarter of Section 27, Township 1 North, Range 13 East, Walthall County, Mississippi. This is some two to two and a half miles southeast of Improve, Mississippi.\\nThe disputed lands with respect to which the Davises have asserted a claim of adverse possession comprise approximately seventy (70) additional acres and lie adjacent to the Davises' land to the south, east and north. Record title to various portions of the disputed lands and various interests therein lie in Diana H. Clement, Ronald R. Lott, Emelda B. Lott, Artis Mark, Jr., Sharon N. Mark, Jane W. Melton, William E. Melton, Mary Gaston Melton Buchler, Julius W. Melton, Jr., Crown Zellerbach Cor poration, C.O. Trest, Marion T. Hardwick, Elizabeth W. Trest and Sue Ellen T. Verger. These parties were the Defendants below and are the Appellees here.\\nThe Davises sought to prove adverse possession of the disputed 70 acres for a period in excess of thirty-five (35) years. Through only two witnesses, Boyd L. Davis and a surveyor, W.I. Connerly, the Davises sought to establish that they had kept the lands under fence, had grazed cattle and grown timber thereon, and had sold gravel therefrom. The testimony on each of these points was vague, imprecise and incomplete.\\nThe thrust of the Davises' case centers upon the testimony of Boyd L. Davis regarding the fence. Davis testified that in 1946 he helped his grandfather patch and repair a fence around the disputed land. He stated further that several years later he was on the property to help plant trees and the fence was still there. In time, however, Davis concedes that the fence fell into a state of disrepair or disappeared altogether. A timber cutting operation destroyed much of the fence. Other parts were destroyed as gravel was removed.\\nImportantly, the Davises never established that the disputed area had been effectively fenced for ten consecutive years. Further, the Davises offered no testimony to the effect that either they or their predecessors in title ever intended that the fence establish a claim of ownership to the property. W.I. Connerly, the surveyor, testified that he surveyed the fence line around the disputed property in 1971. He found remnants of an old fence that had fallen into alternate states of disrepair or disuse. He could not remember if he was working for Davis or for Clements/Trest.\\nThe Davises also rely upon the gravel sales made to Walthall County. Apparently this occurred on several occasions over a period of years, although the record is devoid of evidence of dates, identity of the parties engaging in the gravel removal operations, and the precise location of the lands from which the gravel was removed. One exhibit reflects sales from a gravel pit located partly on lands the record title of which is vested in the Davises and partly on the lands of Appellee Clement. No evidence reflected from which part of the pit the gravel was taken when sold. For aught that appears, it could have come solely from the lands record title of which is vested in the Davises.\\nDavis testified that he planted some trees on the disputed property within a year or two after 1948. There is no evidence reflecting the number of trees planted or the exact area where they were planted. Further there is no evidence showing Davis' intent to possess the lands in dispute by this planting. There is no evidence that the Davises or their predecessors ever cut, sold or removed any timber from the disputed property.\\nThe evidence reflects that the Davises leased the eighty (80) acre tract which he owned to a Mrs. Strogner from 1948 or 1949 until 1973 or 1974 and to a Harold Lott in 1976. There is no direct evidence, however, that either Mrs. Strogner or Mr. Lott ever went on the disputed property or used it for any purpose. Indeed, there is no evidence that Davis ever went on the property other than the incident in 1946 when he helped his grandfather repair fences, the incident in 1948 where he planted trees and in 1982 when he took photographs in preparation for trial. The record is silent as to whether other members of the Davis family, Mary Lee Davis or Ray Ellis Davis, ever went on the property.\\nThe record reflects that the Davises paid taxes consistently on only eighty (80) acres of land. They never made any attempt to have the full one hundred and fifty (150) acres placed on the tax roles or have the additional acreage assessed to them.\\nOnce their two witnesses, Boyd L. Davis, who is one of the plaintiffs, and W.I. Con-nerly, a surveyor, had completed their testimony, Plaintiffs rested, whereupon all Defendants moved the Court to dismiss the action by reason of Plaintiffs' failure to establish a prima facie case. In a bench opinion, the Chancellor granted the motion. On August 18, 1983, a final decree was entered carrying into effect the Chancellor's bench ruling. In due course thereafter, the Davises perfected this appeal.\\nIII.\\nWe emphasize the procedural posture of the case. The Plaintiffs Davis presented their case and rested. At that point the Defendants moved the trial court that, as a matter of law, the Davises had failed to make out a prima facie case. Applying the controlling rules of law\\u2014including that regarding the burden of proof\\u2014the thrust of Defendants' motion was that, considering the evidence then before the Court, Defendants were entitled to entry of judgment. Such a motion invokes Rule 41(b), Miss.R.Civ.P.\\nWe emphasize that this motion was presented to a trial judge sitting without a jury. In such a setting, the trial court is not required to look at the evidence in the light most favorable to the plaintiff, giving the plaintiff the benefit of all reasonable favorable inferences. Notions emanating from Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975), and many other similar cases\\u2014whether arising in the context of a motion for a directed verdict, a request for a peremptory instruction or a motion for judgment notwithstanding the verdict\\u2014have no application here. Those familiar rules apply only in jury trials where we are concerned that rights secured by Miss.Const. Art. 3, \\u00a7 31 (1890) (right to trial by jury in civil cases) be respected. See City of Jackson v. Locklar, 431 So.2d 475, 478 (Miss.1983).\\nPut differently, Paymaster Oil and progeny require that the evidence be viewed in the light most favorably to the non-moving party, solely because this is the only means we have devised for protecting the non-moving party's constitutional right to have a jury pass on the factual questions in the case. When the trial judge sits without a jury, no such constitutional rights come into play.\\nHere the question presented to the trial judge, sitting without a jury, is whether, considering the evidence which has been offered by the plaintiff (which, of course, is all of the evidence then before the court), and giving it such weight and credibility as it would be entitled to were the trial judge engaged in making final findings of fact and rendering final judgment, the trial judge concludes that plaintiff has made out a case which if not rebutted would entitle him to judgment. The trial judge must, as a matter of law, deny the motion to dismiss and require the Defendant to go forward with his evidence if, and only if, considering that the evidence offered by the plaintiff were all of the evidence to be offered in the case, the trial judge would be obligated to find in favor of the plaintiff.\\nIf, considering the evidence fairly, as distinguished from in the light most favorable to the plaintiff, the trial judge would find for the defendant\\u2014because plaintiff has failed to prove one or more essential elements of his claim, because the quality of the proof offered is insufficient to sustain the burden of proof cast upon the plaintiff, or for whatever reason\\u2014the proceeding should be halted at that time and final judgment should be rendered in favor of the defendant.\\nObviously, when there is doubt, the trial judge generally ought to deny the motion to exclude and dismiss but such is the exercise of sound discretion, not obligation imposed by law.\\nThe construction we here give Rule 41(b), Miss.R.Civ.P., is wholly consistent with that given Federal Rule 41(b) upon which our rule has been patterned. See, e.g., Hersch v. United States, 719 F.2d 873, 876-877 (6th Cir.1983); Cox v. C.H. Masland & Sons, Inc., 607 F.2d 138, 144 n. 8 (5th Cir.1979); Woods v. North American Rockwell Corporation, 480 F.2d 644, 645-646 (10th Cir.1973); Emerson Electric Co. v. Farmer, 427 F.2d 1082, 1086 (5th Cir.1970).\\nOther states, like Mississippi, have adopted rules of civil procedure derived from the Federal Rules of Civil Procedure. A sampling of the manner in which our sister states have construed their Rule 41(b) is likewise consistent with and supportive of the view we take here. See, e.g., Sevin v. Shape Spa For Health & Beauty, Inc., 384 So.2d 1011, 1013 (La.Ct.App.1980); Metropolitan New Orleans Chapter of Louisiana Consumer's League v. Council of City of New Orleans, 423 So.2d 1213, 1215 (La.Ct.App.1983); Lumbee River Electric Membership Corporation v. City of Fayetteville, 309 N.C. 726, 741-42, 309 S.E.2d 209, 218-219 (1983); Mackey-Woodard, Inc. v. Citizens State Bank of Cheney, 197 Kan. 536, 550-52, 419 P.2d 847, 858-860 (1966); Baker v. R.D. Andersen Construction Co., Inc., 7 Kan.App.2d 568, 579, 644 P.2d 1354, 1363 (1982).\\nA corollary principle informs our scope of review in cases such as this. Where, as here, a motion to exclude and dismiss has been granted at the end of the plaintiffs case, the trial judge sitting without a jury has necessarily performed his fact finding function and has made a judgment that, even in the absence of evidence offered by the defendant, the facts are such that under the applicable law the plaintiff is entitled to no relief. He has found the facts the same as in other cases. For this reason, we do not consider the evidence de novo, but rather we apply the same substantial evidence/manifest error standards as are generally applicable when we are reviewing the findings of trial judges. See McNair v. Capital Electric Power Association, 324 So.2d 234, 238-239 (Miss.1975); Culbreath v. Johnson, 427 So.2d 705, 707-709 (Miss.1983); Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983); Neal v. State, 451 So.2d 743, 753 (Miss.1984); see also, Woods v. North American Rockwell Corporation, 480 F.2d 644, 646 (10th Cir.1973); and Lumbee River Electric Membership Corporation v. City of Fayetteville, 309 S.E.2d 209, 219 (N.C.1983); see also, Anderson v. City of Bessemer City, N.C., \\u2014 U.S. -, 105 S.Ct. 1504, 84 L.Ed.2d 518 (Mar. 19, 1985).\\nWe call the trial judges' attention to the fact that when he grants a motion to dismiss at the close of the plaintiff's case, he should enter into the record his findings of fact and conclusions of law. The failure to do so leaves an appellate court in the position of having to guess at the trial judge's reason for granting the motion and may result in a finding of manifest error when in truth there was none.\\nIV.\\nThe Davises sought to establish their claim of adverse possession under Miss. Code Ann. \\u00a7 15-1-13 (1972). That statute by its terms requires adverse occupancy continuously and uninterruptedly for a period of ten (10) years or more. Our case law has established beyond peradventure that the party claiming under this statute must prove not only his possession but that his possession is (1) actual; (2) hostile and under claim of ownership; (3) open, notorious and visible; (4) exclusive; (5) peaceful, and (6) continuous and uninterrupted for a period in excess of ten years. Kayser v. Dixon, 309 So.2d 526, 528 (Miss.1975); Eady v. Eady, 362 So.2d 830, 832 (Miss.1978); Gadd v. Stone, 459 So.2d 773, 774 (Miss.1984).\\nThe rule is well settled that both the quality and quantity of possessory acts necessary to establish a claim under Section 15-1-23 may vary with the characteristics of the land. In the case of \\\"wild\\\" or unimproved lands, adverse possession may well be established by evidence of acts that would be wholly insufficient in the case of improved or developed lands. Kayser v. Dixon, 309 So.2d 526, 529 (Miss.1975); McCaughn v. Young, 85 Miss. 277, 292-93, 37 So. 839, 842 (1904).\\nThe question is whether the possessory acts relied upon by the would be adverse possessor are\\nsufficient to fly . [his] flag over the land and put the true owner upon notice that his land is held under an adverse claim of ownership.\\nSnowden & McSweeny Co. v. Hanley, 195 Miss. 682, 687, 16 So.2d 24, 25 (1943).\\nThere is no need to dawdle over how the voluminous authorities regarding adverse possession construe each of the above elements. The Davises' claim fails on practically every score. The evidence reflects only an intermittent involvement with this land on the part of the Davises\\u2014 the word \\\"possession\\\" is even too strong. It is not clear that the evidence would be sufficient even to sustain the notion that the Davises have established a \\\"scrambling possession\\\" of the lands. See Fairley v. Howell, 159 Miss. 668, 674, 131 So. 109, 110 (1930).\\nDespite protestations to the contrary, the record reveals that all the Davises really have to base their claim on is an old barbed wire fence. In this sense, the case is analogous to Peoples Realty & Development Corp. v. Sullivan, 336 So.2d 1304, 1305 (Miss.1976), which held:\\n\\\"Sporadic and temporary activity on the property is not sufficient to give notice of an adverse claim, nor is an owner put upon such notice by occasional pasturing of cows, or by occasional cutting of timber.\\\"\\n336 So.2d at 1305.\\nIn Peoples, the fence ran across a reed break, could not be seen by the record title holder and was not sufficient to put him on notice. Also, occasional pasturing of cows and cutting of timber were sporadic and insufficient to fly the flag of ownership.\\nA quick perusal of this Court's recent pronouncements in much closer cases will suffice to show the inadequacy of the fallen and meandering fence to support the Davises' claim. See Gadd v. Stone, 459 So.2d 773, 774-75 (Miss.1984) (mere existence of fence and arguably permissive use insufficient for adverse possession); Trotter v. Gaddis & McLaurin, Inc., 452 So.2d 453, 456-57 (Miss.1984) (degree to which existence of fence must be supplemented by other evidence); Pittman v. Simmons, 408 So.2d 1384, 1386 (Miss.1982) (what activity within fenced area shows open and hostile possession).\\nHaving in mind the standards described in Section III, we hold that the chancellor's decision granting Defendants' motion to dismiss at the end of the Davises' case was well within the evidence, considered under the controlling rules of substantive law.\\nAFFIRMED.\\nPATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, DAN M. LEE, PRATHER, SULLIVAN and ANDERSON, JJ., concur.\\n. We regard the contrary suggestion in Richardson v. Langley, 426 So.2d 780, 782 (Miss.1983), that in this procedural setting in a non-jury case the trial judge was required to consider the evidence in the light most favorable to plaintiff, as inadvertent dicta.\"}" \ No newline at end of file diff --git a/miss/7609355.json b/miss/7609355.json new file mode 100644 index 0000000000000000000000000000000000000000..b55120c7edeb013506f38bdc8111e955196bca7a --- /dev/null +++ b/miss/7609355.json @@ -0,0 +1 @@ +"{\"id\": \"7609355\", \"name\": \"STATE of Mississippi v. Candy PEOPLES\", \"name_abbreviation\": \"State v. Peoples\", \"decision_date\": \"1986-01-15\", \"docket_number\": \"No. 56281\", \"first_page\": \"1069\", \"last_page\": \"1070\", \"citations\": \"481 So. 2d 1069\", \"volume\": \"481\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T20:35:37.200012+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.\", \"parties\": \"STATE of Mississippi v. Candy PEOPLES.\", \"head_matter\": \"STATE of Mississippi v. Candy PEOPLES.\\nNo. 56281.\\nSupreme Court of Mississippi.\\nJan. 15, 1986.\\nOrbie S. Craft, Dist. Atty., Brandon, for appellant.\\nRobert W. Camp, H.A. Courtney, Jackson, Anselm J. McLaurin, McLaurin & McLaurin, Brandon, for appellee.\\nBefore PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.\", \"word_count\": \"852\", \"char_count\": \"5028\", \"text\": \"DAN M. LEE, Justice\\nfor the Court:\\nCandy Peoples was indicted in the October term, 1984 session of the grand jury of Rankin County, Mississippi. The indictment charged that on the 18th of July, 1984, Mrs. Peoples did willfully, unlawfully, feloniously and without lawful authority inveigle and kidnap John Paul Peoples, her husband, with the intent to cause him to be secretely confined or imprisoned against his will, in violation of \\u00a7 97-3-53 of the Mississippi Code of 1972, as amended.\\nCounsel for Mrs. Peoples made an ore tenus motion to quash the indictment against her, alleging that the evidence proposed to be introduced by the state was insufficient as a matter of law to prove the crime of kidnapping. The trial court heard and decided the motion to quash based on the arguments of counsel and an outline of the evidence which the state intended to offer had the case gone to trial.\\nIt is not necessary that we here delineate all of the facts attendant to this case; it is sufficient to note that, pursuant to a common plan, Candy Peoples lured her husband, John Paul Peoples, to a desolate location in southwest Rankin County where he was intercepted by Jim Cooper and Billy Reis. Cooper and Reis locked Mr. Peoples in the trunk of a car at gunpoint and, subsequently, killed him.\\nAt the conclusion of the hearing on the motion, the trial court quashed the indictment and held that the evidence proposed to be presented would not support the charge of kidnapping. The ruling was erroneous; the case should have gone to trial.\\nNeither a motion to quash nor any other pretrial pleading can be employed to test the sufficiency of evidence. State v. Grady, 281 So.2d 678, 680 (Miss.1973); State v. Peek, 95 Miss. 240, 243, 48 So. 819 (1909). See, Callahan v. State, 419 So.2d 165, 168 (Miss.1982); State v. Bates, 187 Miss. 172, 179, 192 So. 832, 834-835 (1940). If the procedure employed by the trial court in this case were permitted, it would have a moinumental effect on our criminal justice system. As this Court observed in Grady,\\nIt would result in a pretrial hearing in practically every case to determine whether the state has sufficient evidence to support the indictment. This could only result in confusion and delay in the trial of a criminal case.\\n281 So.2d at 680.\\nThe proper time to test the sufficiency of the evidence to support any indictment is when the case is tried on its merits. Then if the evidence on behalf of the state is insufficient to support the charge made in the indictment, on proper motion, the trial court should so hold and direct the jury to find the accused not guilty, otherwise, the case should be submitted to the jury to determine the guilt or innocence of the accused.\\nId. at 681-682.\\nThe bottom line is this: the indictment charges conduct prohibited by our criminal laws, to-wit: kidnapping. Miss. Code \\u00a7 97-3-53 (1972). The indictment makes this charge in plain and concise language and fairly notifies Peoples of the charge against her. See Rule 2.05, Unif.Crim.R. of Cir.Ct.Prac.; Harden v. State, 465 So.2d 321, 324 (Miss.1985); Henderson v. State, 445 So.2d 1364, 1367-1368 (Miss.1984). By quashing this indictment the trial judge in effect granted Peoples a summary judgment. There is no such procedure known to our criminal practice.\\nWe note, in passing, that there was some difficulty distinguishing Candy Peoples's status as either an accessory before the fact or a principal to the crime of kidnapping. In this state, that is a distinction without a difference. Section 97-1-3, Miss.Code Ann. (1972) provides that:\\nEvery person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not.\\nUnder our statute, an accessory to any felony before the fact is a principal and may be convicted as a principal in an indictment charging him or her as principal. Blackwell v. State, 231 So.2d 790, 792 (1970) cert. denied, Blackwell v. Mississippi, 400 U.S. 848, 91 S.Ct. 43, 27 L.Ed.2d 86 (1970); Hathorn v. State, 246 Miss. 135, 149 So.2d 845 (1963); West v. State, 233 Miss. 730, 103 So.2d 437 (1958); Goss v. State, 205 Miss. 177, 38 So.2d 700 (1949). Additionally, evidence of the acts of the principal are admissible against the accessory before the fact. Blackwell, 231 So.2d at 792; Carr v. State, 175 Miss. 102, 166 So. 363 (1936).\\nFor the above stated reasons, the judgment of the trial court is reversed and this case is remanded for further proceedings.\\nREVERSED AND REMANDED.\\nPATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and HAWKINS, PRATHER, ROBERTSON, SULLIVAN and ANDERSON, JJ., concur.\"}" \ No newline at end of file diff --git a/miss/7610748.json b/miss/7610748.json new file mode 100644 index 0000000000000000000000000000000000000000..c21c2a15f8243a65f9c454b9dd931ba4ff66d4a2 --- /dev/null +++ b/miss/7610748.json @@ -0,0 +1 @@ +"{\"id\": \"7610748\", \"name\": \"CITY OF MOUND BAYOU v. ROY COLLINS CONSTRUCTION COMPANY, INC. and D.D. Freeland Construction Company d/b/a A Joint Venture\", \"name_abbreviation\": \"City of Mound Bayou v. Roy Collins Construction Co.\", \"decision_date\": \"1984-09-19\", \"docket_number\": \"No. 55841\", \"first_page\": \"337\", \"last_page\": \"343\", \"citations\": \"457 So. 2d 337\", \"volume\": \"457\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T23:31:16.373036+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before WALKER, P.J., and ROBERTSON and SULLIVAN, JJ.\", \"parties\": \"CITY OF MOUND BAYOU v. ROY COLLINS CONSTRUCTION COMPANY, INC. and D.D. Freeland Construction Company d/b/a A Joint Venture.\", \"head_matter\": \"CITY OF MOUND BAYOU v. ROY COLLINS CONSTRUCTION COMPANY, INC. and D.D. Freeland Construction Company d/b/a A Joint Venture.\\nNo. 55841.\\nSupreme Court of Mississippi.\\nSept. 19, 1984.\\nTyree Irving, Greenville, for appellant. William S. Adams, Jr., Cleveland, for ap-pellee.\\nBefore WALKER, P.J., and ROBERTSON and SULLIVAN, JJ.\", \"word_count\": \"3775\", \"char_count\": \"22483\", \"text\": \"ON MOTION TO DOCKET AND DISMISS\\nROBERTSON, Justice, for the Court:\\nI.\\nThis matter is before the Court today on Appellees' motion to docket and dismiss. At issue is whether an incorporated municipality may be exempt from our general rule requiring that an appellant make a deposit for court costs in order to perfect its appeal. Also at issue is the extent to which our recently promulgated Rule 48, regulating the perfection of an appeal, supersedes the former statutory procedural requirements for designation of the record on appeal and giving notice thereof to the court reporter.\\nThese matters are not without importance, theoretical and practical, nor have their contours and answers heretofore been clear. We hope they may now become so.\\nII.\\nThe procedural history of this case, in pertinent part, begins on April 23, 1984. On that date, the Circuit Court of the Second Judicial District of Bolivar County, Mississippi entered judgment in the amount of $215,679.47 in favor of Roy Collins Construction Company, Inc. and D.D. Freeland Construction Company, d/b/a A Joint Venture, (\\\"Collins and Freeland\\\" or sometimes \\\"Appellees\\\") and against the City of Mound Bayou, Mississippi (\\\"the City\\\"), an incorporated municipality of the State of Mississippi.\\nTwenty-eight days later, on May 21, 1984, the City filed with the Clerk of the Circuit Court its notice of appeal. On the same day, in lieu of prepayment of costs as ordinarily required by Rule 48(h), the City of Mound Bayou filed with the Clerk of the Circuit Court a document which provides\\nCERTIFICATE REQUIRED BY RULE 48(h)(1) OF MISSISSIPPI SUPREME COURT RULES\\nComes now the city of Mound Bayou, defendant herein, by and through one of its attorneys of record, and estimates the cost of preparation of the record on appeal, including, but not limited to, the cost of the preparation of transcript, to be $1,200.00. However, said sum is not being tendered to the Clerk of the Court at this time because under the provisions of Mississippi Code Annotated \\u00a7 11 \\u2014 51\\u2014 101 (Supp.1983), defendant city of Mound Bayou is entitled to appeal without prepaying the estimated cost.\\nThis 21st day of May, 1984.\\nRespectfully submitted,\\nCITY OF MOUND BAYOU\\nBY: /s/ Tyree Irving TYREE IRVING\\nWalls, Buck & Irving, Ltd.\\n163 North Broadway Street\\nPost Office Box 634\\nGreenville, Mississippi 38702-0634 (601) 335-6001\\nOne of the Attorneys for the\\nCITY OF MOUND BAYOU\\nNo deposit for costs was made and, apparently, no such deposit has been made to this date.\\nThereafter, on June 22, 1984 \\u2014 some 32 days following the attempted perfection of the appeal \\u2014 the City of Mound Bayou filed with the clerk of the Circuit Court a designation of the record on appeal which provides as follows:\\nDEFENDANT'S DESIGNATION OF RECORD\\nNow comes the city of Mound Bayou, by and through one of its attorneys of record, and designates the entire record, including all pleadings (both pretrial and postrial), discovery documents, witness testimony, proceedings in chambers, and opinions, decisions and orders of the Court, for inclusion in the record on appeal.\\nRespectfully submitted,\\nCITY OF MOUND BAYOU\\nBY: /s/ Tyree Irving TYREE IRVING\\nWalls, Buck & Irving, Ltd.\\n163 North Broadway Street Post Office Box 634\\nGreenville, Mississippi 38702-0634 (601) 335-6001\\nOne of the Attorneys for the\\nCITY OF MOUND BAYOU\\nCollins and Freeland now employ two separate tactics in an attempt to short circuit the City's appeal before it really gets started. First, Collins and Freeland contend that the City's failure to make the cost deposit ordinarily required by Rule 48(h)(1) within 30 days following entry of judgment means that the appeal has not been perfected and now may never be perfected. Second, Collins and Freeland argue that the City failed to designate the portions of the proceedings at trial to be transcribed within ten days of the perfection of the appeal as heretofore required by Miss.Code Ann. \\u00a7 9-13-33 (Supp.1983). This, too, say Appellees, means that the City's appeal has been fatally lost.\\nIII.\\nA.\\nThe primary issue presented on the instant motion is whether the City of Mound Bayou, as an incorporated municipality of the State of Mississippi, is obligated by Rule 48(h)(1) to prepay costs as an incident to the perfection of an appeal. There is no question but that other appealing litigants are so required. The City, however, cites Miss.Code Ann. \\u00a7 11-51-101 (1972) and argues that it has been exempted from that requirement.\\nAppellees Cpllins and Freeland counter (assuming arguendo that the City's construction of Section 11-51-101 is correct as an original proposition) that this statute has been overridden by Rule 48(a) which provides\\nIn all cases, both civil and criminal, in which an appeal is permitted by law as of right to the Supreme Court, there shall be one procedure for perfecting such appeal. That procedure is prescribed in this rule. All statutes, rules or decisions in conflict with this rule shall be of no further force or effect. [Emphasis added]\\nA problem with the City's argument at the outset is that it fails to keep well in mind the distinction between a supersedeas bond, on the one hand, and a deposit for or prepayment of court costs, on the other. The statute invoked by the City, Section ll-51-101(a), exempts the City from having to secure and file a supersedeas bond in order to prevent enforcement of the judgment pending appeal. We find nothing in that statute mentioning the City's liability for prepayment of court costs or the like. The statute reads:\\n(a) The state, and any county, city, town or village thereof, and the officials representing the state, county, city, town or village, in any suit or action, . shall be entitled to appeal from a judgment, decree, decision, or order of any court or judge, from which an appeal may be taken, without giving an appeal bond; and in such case, if an appeal bond would operate as a supersedeas in favor of a private person, the appeal, without bond, shall have the same effect in the cases herein provided for and this provision shall apply to all the courts of the state. [Emphasis added]\\nThe instant controversy regards the prepayment of court costs, primary among which are the fees of the court reporter for preparation of the transcript. Section 11-51-101(a), however, appears to concern only \\\"appeal bonds\\\" which \\\"would operate as a supersedeas\\\". This latter language contemplates a situation where, as here, a monetary judgment has been entered against the City. Whereas a private litigant would have'to file a supersedeas bond in order to be secure from execution on the judgment pending appeal, Section 11 \\u2014 51\\u2014 101(a) provides without doubt that the City of Mound Bayou may take this appeal without bond.\\nWe retreat to a more basic point of beginning. Neither the state nor any of its political subdivisions has any liability to pay anything to anybody, except as expressly authorized by law. Such laws are ordinarily found in statutory form. Occasionally they undergird and are embodied in the holdings of this Court. See Pruett v. City of Rosedale, 421 So.2d 1046, 1051-52 (Miss.1982) (partial abolition of sovereign immunity). We thus consider whether, prior to the advent of our Rule 48, there was any valid rule of law in this state obligating political subdivisions, when appealing to this Court, to prepay court costs.\\nIn this context, Section 11-51-101 is by no means irrelevant to the issue at bar. This statute may not do what the City hopes, but it is nevertheless a manifestation of the public policy of this state to the effect that any of its political subdivisions are generally entitled to litigate without being deprived of the use of its assets during the pendency of the litigation.\\nA further manifestation of that public policy is Miss.Code Ann. \\u00a7 11-53-13 (1972). That statute provides\\nNeither the state, nor any county, city, town, or village, ., shall be required to pay costs before commencing a suit, nor to give security for costs before or after the commencement of a suit.\\nThis statute appears to relate to the action in the trial court. No exaggeration of its words or their meaning is necessary to have it read \\\"...[No] city...shall be required. . .to give security for costs.. .after the commencement of a suit\\\" \\u2014 an appeal, of course, occuring after the commencement of a suit.\\nThe public policy noticed here is but one segment of the rule of sovereign immunity stated above, that no political subdivision may be required to respond in judicial proceedings except as has been expressly authorized by law. Also derived from this public policy are our rules that statutory damages may not be assessed on appeal where a judgment against a political subdivision is affirmed, Rankin County, Mississippi v. Wallace, 230 Miss. 413, 420, 92 So.2d 661, 665 (1957), that a political subdivision is not liable for interest on a judgment, City of Jackson v. Reed, 233 Miss. 280, 305-307, 103 So.2d 6, 7-8 (1958), and, in general,\\n\\\"that a subdivision of the state is not liable for costs unless the statutes expressly so allow or provide.\\\"\\nMoorhead Drainage District v. Pedigo, 210 Miss. 284, 297, 49 So.2d 378, 383 (1950).\\nThat political subdivisions may ultimately be stripped of their sovereign immunity, which has heretofore shielded them from the payment of damages in certain types of cases, does not suggest that they be denied the privilege of litigating and appeal-' ing without prepayment of costs, for the public policy underpinnings of that immunity remain strong. Any such prepayments must necessarily be made out of the public coffers. The monies there ought be com mitted, to the extent consistent with justice and fairness, to the funding of needed public services and benefits.\\nThe point is made by a consideration of what would happen if an appealing political subdivision such as the City of Mound Bayou were ultimately to prevail on appeal. If it prevailed, this would no doubt be because this Court held, when the controlling rules of law were applied to the facts of the case, that the City was not liable. If, however, the' City had been required to prepay court costs, it would have lost the use of the sums so prepaid during the time the case was pending on appeal, which, as everyone knows, can frequently run to two years or more. And the public would have been deprived of the services that could have been purchased with those monies.\\nThere is a further consideration applicable in those cases where the political subdivision may become liable for costs if it be unsuccessful on its appeal. Such litigants are invariably solvent, and if worse comes to worst, they have the authority to tax. There is no appreciable risk that such litigants will fail to respond to any order for the assessment of costs.\\nWe find that, prior to the promulgation of Rule 48, there was in effect a valid rule that permitted the state and its political subdivisions to appeal without prepayment of costs. Collins and Freeland have suggested no authority to the contrary. This brings us to the question presented: whether Rule 48 abrogates this immunity from prepayment of costs. We hold that it does not.\\nRule 48 sets forth a single (and, hopefully, simple) procedure for the taking of an appeal to this Court. The promulgation of that rule for the accomplishment of that purpose was well within the authority of this Court. The suggestion tendered by Collins and Freeland here, however, would carry us beyond our authority, for these Appellees would have us invade and supersede a long-established important public policy of this state and a clear rule emanating therefrom. This we decline to do.\\nIn the context of the overriding and apparently sound public policy described above and the rule of immunity emanating therefrom, we hold that Rule 48(h) does not require the state or any of its political subdivisions, as party appellants, to make the deposit for court costs required of other appealing litigants. Where a political subdivision is the appellant, it is sufficient that it file with the clerk a certificate claiming its immunity, similar to that filed here by the City of Mound Bayou. In this connection we note the last sentence of Rule 48(h)(1):\\nAn appeal shall not be dismissed for informality in the form or contents of this certificate nor for the timing of its filing.\\nB.\\nNext, Collins and Freeland assert in their Motion to Docket and Dismiss that the City of Mound Bayou has failed timely to designate the record in conformity with Miss.Code Ann. \\u00a7 9-13-33 (Supp.1983). That statute, unlike the rule just discussed, is wholly procedural in nature, operation and effect. It provides that any person appealing a case shall notify the court reporter in writing not later than ten days after perfecting his appeal of the fact that a copy of the notes of the court reporter is desired.\\nThe facts reflect that the appeal was perfected on May 21, 1984. On June 22, 1984, some 22 days past the ten day time limitation of the statute, the City filed \\\"Defendant's Designation of Record\\\". Apparently this was done in response to a suggestion by the Circuit Clerk that Section 9-13-33 remained in full force and effect.\\nThe City of Mound Bayou argues that Rule 48 has superseded the notice to the court reporter requirements of Section 9-13-33. In large part, the City is correct. Section 9-13-33 is wholly procedural. No important public policy considerations are implicated. It is within our rule-making authority to preclude enforcement of Section 9-13-33 in its entirety if we find such conducive to the proper administration of justice. Newell v. State, 308 So.2d 71, 78 (Miss.1975); Haralson v. State, 308 So.2d 222, 224 (Miss.1975); see also, Fairley v. State, 343 So.2d 483, 484 (Miss.1977) (use of rule-making power suggested) (Sugg, J., dissenting).\\nThe question before the Court is, to what extent have we via the promulgation of Rule 48 pretermitted the enforcement of Section 9-13-33? Our subject matter being entirely procedural, the answer necessarily derives from a consideration of the requirements of Rule 48 and the extent to which they conflict with the terms of the statute.\\nRule 48(b) requires that a copy of the notice of appeal be served upon the court reporter. That notice gives the reporter actual knowledge that an appeal is being taken.\\nRule 48(h)(1) provides that the appellant shall make its cost deposit and file with the clerk a certificate of compliance. The rule provides that a copy of this certificate should be served on the court reporter, at which time the reporter shall commence preparation of the transcript.\\nThese requirements make it apparent that Rule 48 is in hopeless conflict with much of what is in the first four subpara-graphs of Section 9-13-33. This, of course, brings into play the proviso in Rule 48(a) to the effect that all statutes, rules or decisions in conflict with this rule shall be of no further force or effect.\\nThe fundamental accomplishment of Rule 48 is that the appeal is perfected by the filing of the notice and prepayment of costs (which, in this case, is excepted). Everything else that an appellant may do or fail to do goes to the question of whether the appellant has diligently prosecuted his appeal \\u2014 all the more reason why we are loathe to incorporate the requirements of Section 9-13-33 into the simple procedural scheme of Rule 48.\\nWe hold that Rule 48 supersedes subparagraphs (1), through (4) of Section 9-13-33. Cf. Fairley v. State, 343 So.2d 483, 484 (Miss.1977) (suggestion that rule-making power be used to supersede 9\\u201413\\u2014 33) (Sugg, J., dissenting). Because subpar-agraphs (5) through (7) of Section 9-13-33 in no way conflict with Rule 48, they remain in full force and effect.\\nHaving dispatched some of the niceties of Section 9-13-33(1) through (4), we add a point for clarification. Upon receipt of a copy of the notice of appeal and the certificate of compliance with Rule 48(h)(1), the court reporter becomes obligated to prepare the entire transcript of all proceedings had at trial.\\nThe City of Mound Bayou has fully complied with the notice-to-the-court-reporter features of Rule 48. The certificate attached to the notice of appeal reflects that it was served on Mrs. Grace Tice, court reporter, on May 21, 1984. The City's certificate of compliance with Rule 48(h)(1) similarly shows service on the court reporter on May 21, 1948. This clearly confirms to the requirements of the 30 day time limit. The motion to strike the court reporter's notes is overruled.\\nNothing said here is intended to discourage the parties from reaching agreements regarding reduction of the transcript by excluding or omitting portions of the testimony or exhibits not relevant to the issues to be raised on appeal. The deposit-for-costs requirement of Rule 48(h)(1), coupled with our rules regarding assessment of costs at the end of the appeal, ought in the ordinary ease provide a salutary incentive to such agreements, although we are aware this frequently is not so.\\nWe take this opportunity to remind the bar of this state that there is much money and time to be saved via agreed, expurgated records \\u2014 with no loss of fair advantage to the litigant pursuing legitimate self-interest on appeal. What \\u2014 and all \\u2014 we are saying here is that, absent agreement of the parties to the contrary, the court reporter should not omit from his or her transcript any part of the trial proceedings.\\nMOTION TO DOCKET AND DISMISS OVERRULED.\\nWALKER, P.J., and BOWLING, HAWKINS, DAN M. LEE and SULLIVAN, JJ., concur.\\nPATTERSON, C.J., ROY NOBLE LEE, P.J., and PRATHER, J., not participating.\\n. Rule 48(h)(1), Miss.Sup.Ct.Rules. Rule 48, was promulgated by this Court on September 28, 1983, as an Appendix to Moran v. Necaise, 437 So.2d 1222, 1225-1227 (Miss.1983). The rule became effective on January 1, 1984.\\n. Miss.Code Ann. \\u00a7 9-13-33 (Supp.1983)\\n. In the light of Pruett v. City of Rosedale, 421 So.2d 1046 (Miss.1982), see Miss.Laws of 1984, ch. 495 [Senate Bill No. 2441].\\n. Performance of duties imposed upon Appellants under Section 9-13-33 are not jurisdictional. Haralson v. State, 308 So.2d 222, 224 (Miss.1975). We have waived the requirement altogether, Fairley v. State, 343 So.2d 483 (Miss.1977), although we recently enforced it in a pre-Rule 48 case where the notice was given 107 days late. Garrett v. Nix, 431 So.2d 137, 140 (Miss.1983).\\n. The first four subparagraphs of Section 9-13-33 provide:\\n(1) In all cases in which the trial is noted by the official court reporter, any person appealing the case shall notify the court reporter in writing not later than ten (10) days after perfecting his appeal of the fact that a copy of the notes is desired. The notice must be handed to the court reporter personally or mailed to him at his usual place of abode. In either case the attorney making the request shall file with the clerk of the court a copy of the notice with a statement of how the notice was served, and a copy thereof shall in like manner be served upon appellee's attorney, and the said notice shall designate the portions of the record, proceedings, testimony and evidence to be contained in the record of appeal.\\n(2) Within ten (10) days after the service and filing of such a designation and notice, any other party to the appeal may in like manner serve and file a designation of additional portions of the record, proceedings, testimony and evidence to be included. Within ten (10) days after the service and filing by any appellee of his designation and notice, appellant may in like manner serve and file a designation in rebuttal of additional portions of the record, proceedings testimony and evidence to be included. In cases where a new trial is granted, and an appeal is desired and is otherwise allowable, the parties filing and serving designations of record, as herein set forth, may likewise designate the portions of the record, proceedings, testimony and evidence of the former trial or trials in lieu of a bill of exceptions in the same manner and within the respective periods of time after the adjournment of the term of court at which the last trial is held.\\n(3) The appellant and appellee shall state in their respective designation that part of the clerk's record and reporter's transcript of the testimony and evidence they desire to be transcribed and included in the record and that part that might be omitted altogether.\\n(4) All pleading, process, and testimony of witnesses, not essential to the decision of the questions presented by the appeal shall be omitted, unless specified to be included in the notices and designations aforesaid.\\n. Subparagraphs (5) through (7) of Section 9-13-33 read as follows:\\n(5) Upon receipt of such notice, it shall be the duty of the court reporter to immediately acknowledge receipt thereof and to transcribe and file his notes accordingly within sixty (60) days thereafter.\\n(6) The court reporter shall receive two dollars (|2.00) per page for the same, which shall be taxed as costs, and the court reporter shall file with the clerk the original and one (1) carbon copy of his notes so transcribed, together with all exhibits to the testimony, for which carbon copy no charge shall be made. The original of such transcript shall be used by the clerk in making up the record for the supreme court, and the clerk shall omit such pleading, process and other documents except as designated in the notice aforesaid, and no other fee shall be allowed for this part of the record. Provided, however, that in criminal cases where appeals are taken and no appeal bond is filed the transcript fee herein provided shall be paid to the court reporter of the county treasury at the rate of two dollars ($2.00) per page, after the examination and approval of an itemized account of same by the district attorney and allowance thereof by the board of supervisors of the county.\\n(7)The term \\\"official court reporter\\\" as used in this section shall include reporters regularly employed by the Mississippi Public Service Commission, and such reporters shall receive the same compensation as provided herein for official court reporters.\"}" \ No newline at end of file diff --git a/miss/763363.json b/miss/763363.json new file mode 100644 index 0000000000000000000000000000000000000000..9ad2c916ddf90cc97ff6d7a263bebb8239dc6dfd --- /dev/null +++ b/miss/763363.json @@ -0,0 +1 @@ +"{\"id\": \"763363\", \"name\": \"Pidgeon Thomas Iron Co. v. Leflore County et al.\", \"name_abbreviation\": \"Pidgeon Thomas Iron Co. v. Leflore County\", \"decision_date\": \"1924-04-21\", \"docket_number\": \"No. 23987\", \"first_page\": \"155\", \"last_page\": \"171\", \"citations\": \"135 Miss. 155\", \"volume\": \"135\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:53:06.667692+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Pidgeon Thomas Iron Co. v. Leflore County et al.\", \"head_matter\": \"Pidgeon Thomas Iron Co. v. Leflore County et al.\\n(Division B.\\nApril 21, 1924.)\\n[99 So. 677.\\nNo. 23987.]\\n1. Counties. County, political subdivision of state; in absence of statute county not liable for negligence of its officers.\\nA county is a political subdivision of tbe state, and, in the absence of a statute imposing liability therefor, it is not liable for the negligence of its officers.\\n2. Counties. County not liable for failure to require bond protecting laborers and materialmen.\\nChapter 217, Laws of 1918, which requires any contractor engaged in construction work for a county to execute a formal performance bond, with an additional obligation for the protection of laborers and materialmen, does not impose any liability on such comity, either expressly or by necessary, implication, for the negligence of its officers in failing to require such bond.\\n3. Counties. Failure of board of supervisors to require bond does not render individual members liable for claims of laborers or materialmen.\\nThe failure of a board of supervisors to comply with a statute directing the taking of a bond from a contractor for public work, conditioned for the payment of all indebtedness for labor and material, upon which bond any person to whom there is due any sum for labor or material furnished may bring an action, dees not render the members of such board individually liable for the payment of the claims of laborers or materialmen.\\n4. Counties. Surety on bond submitted loith bid not lia'o\\u00a1,\\u00b0 to laborers and materialmen.\\nWhere a bidder for public work for a county submitted with his bid a bond conditioned that, in the event the contract was awarded to such bidder, he would execute a formal contract and a bond for the performance of the terms and conditions thereof, the surety on such bond did not become liable for the payment of claims for labor and material furnished for the work, where the county permitted the contractor to enter upon and complete the work without requiring the execution of a formal contract or a bond for the protection of laborers and materialmen as required by chapter 217, Laws of 1918.\\nAppeal from Leflore chancery court.\\nHon. C. L. Lomax, Chancellor.\\nSuit by the Pidgeon Thomas Iron Company against Leflore county and others. Prom a decree sustaining demurrers to the bill of complaint, plaintiff appeals.\\nAffirmed.\\nGardner & Gardner, for appellant.\\nThe surety company is liable, for the reason that the condition of the \\u201cbidder\\u2019s bond\\u201d which was made by the surety company, and which was the inducement for the acceptance of the bid of the Larimer & Burgett Bridge Company, has never been complied with. It will be noticed that the condition is, that in the event the contract is awarded to the principal \\u2014 which was done \\u2014 the principal, the bridge company, would execute and enter into a formal contract within the time required \\u2014 which it did \\u2014 and \\u201cfurnish good and sufficient surety to secure the performance of the terms and conditions of the contract\\u201d ivhich it never did, and this is the breach that we say makes the surety company liable for the damages which appellant sustained, by reason of the failure on the part of the bridge company to give the security required by the statute.\\nThe surety company is not in a position to take advantage of the failure to be notified after this bond was not given by the bridge company. It was the duty of the surety company to follow up its obligation and see that the terms of the bond were carried out, that is to say, that the bond was given, and having failed to do this, it is now, estopped from denying liability.\\nIn case of ambiguity, or doubtful construction, the bond should be construed in the light of circumstances surrounding the execution thereof, the object to be accomplished, the situation of the parties and the relations existing between them. 9 C. J., page 33; 84 C. C. A. 630, 61 So. 642. The nature of the duty of the obligor and the character of the obligee must also be regarded as explanatory of the intent. 74 Am. D\\u2019ec. 541.\\nThe law at the time of the execution of this bond is a part of it just as much so as if it had been inserted in it, and if the law gives the bond a certain legal effect, it is as much a part of the bond as if its terms were incorporated therein. Chapter 217, Laws of 1918 (this statute), when this \\u201cbidder\\u2019s bond\\u201d was made, entered into and became a part of the contract, or obligation assumed by the surety company in the execution of the \\u201cbidder\\u2019s bond,\\u201d just as much so as if incorporated in terms therein. 9 C. J., page 34; 30 S. E. 67; 134 S. W. 951; 108 S. W. 548; 20 So. 587.\\nBuilding and Construction Contracts. The general rules governing the rights, duties and liabilities of sureties in other cases apply to sureties on a builder\\u2019s bond, the sureties being bound only where their promise is supported by a sufficient consideration, and only in the manner and to tlie extent provided in the obligation as\\u2018 construed together with other instruments to which it refers.; and where the language of the bond is .that selected by the surety, it must be given the strongest interpretation which it will reasonably bear in favor of the insured. 163 S. W. 1171.\\nMechanics and materialmen have a lien for which they have a right to sue on the bond given the county. Laws 1918, ch. 128; Hemingway\\u2019s Supplement, sec. 2434; 15 C. J. 558, 15 C. J. 561, sec. 263, also sec. 254; American Surety Co. v. Huey, 191 S. W. 617.\\nLiability of Leflore County. We have some doubt as to whether or not Leflore county, or the members of the board of supervisors, officially or individually, are liable, but, we are going to give the court the benefit of our investigation, and submit the matter. In many states it is held that the failure to give the bond renders the county and its officers liable to the materialmen. 15 C. J., page 559, sec. 254; 97 Minn. 487, 107 N. W. 560, 115 Tenn. 639, 91 S. W. 1011; 22 Wash. 106', 60 Pac. 139; 171 N. C. 551; 142 Mich. 637; 67 Mich. 43; 158 Mich. 678; 105 Tenn. 581; 72 Mich. 295; 15 Corpus Juris, 558.\\nPollard ds Hammer, Means Johnston, and Wm. M. Hall, for appellees.\\nI. The bond inures only to the named obligee-. Scott v. Alton Banking & Trust Company, 175 S. W. 920; Birckhead v. Brown, 5 Hill (N. T.) 634. Numerous other cases along the same lines are grouped in note in 1 A. L. R., pages 866 to 870, inclusive, under the subhead Special Guaranty, See also 9 C. J. 85. We submit, therefore, that Leflore county, or more strictly speaking, the board of supervisors of Leflore county, the obligee named in the bond, is the only board or group who could have demanded anything of the bond company by reason of the execution of the bidder\\u2019s bond; that neither the appellant here, nor any other materialman or laborer, had anything to do with the bidder\\u2019s bond, and obtained no rights under it.\\nII. No notice toas given to the bond company that the bridge company had been awarded the contract, and no contractor\\u2019s bond was dema/nded of the bond company. To bind the bond company, even to Leflore county, notice by Leflore county should have been given that its guaranty was accepted and that its principal had been awarded the contract. The bidder\\u2019s bond, at best, was simply an offer of guaranty, and a surety can never be held beyond the terms of his engagement, and every guarantor has a right to stand on the strict terms of his obligation. Davis v. Wells Fargo & Company, 26 L. Ed. 688; Russell v. Clark, 7 Cranch 69; Davis Sewing Machine Company v. Richardson, 29 L. Ed. 480. See also note on Conditional Guaranty, 16 L. R. A. (N. S.), page 367; German Savings Bank v. Drake Roofing Company, 84 A. S. R. 337; Note 105 A. S. R., page '513 and 514; Montgomery v. Kellogg, 43 Miss. 492; Filis v. Jones, 70 Miss. 61.\\nIII. A materialman acts at his peril if he fails to ascertain if a contractor\\u2019s bond for his protection is in existence: Woodioard Lumber Company v. Grantville, 79 S. E. 221, cited in Ann Cas. 1917B, 1090; Bushnell v. Haynes, 156 Pac. 343; Blanchard v. Burns, 49 L. R. A. (N. S.) 1201.\\nWe submit in conclusion that by no process of reasoning can we conceive that any liability can attach to the bond comp\\u00e1ny for a failure on. the part of the board of supervisors to do their official duty, and by no process of reasoning or construction of the statute can we conceive that the surety on a bidder\\u2019s bond can be held liable on a claim which could only be asserted on a contractor\\u2019s bond which was never executed.\\nMeans Johnston, for appellants, in reply.\\nI. The general rule is that a county, in the absence of express statutory provisions is not liable for torts and negligence in the condition, use, and management of public institutions. Mary Davies v. County, 1916B. L. R. A. 1261, and note; Jefferson County v. Grafton, 74 Miss. 435, 21 So. 247, 60 A. S. R, 516, and 36 L. R. A. 798; Brabham v. Board of Supervisors Hinds County, 54 Miss. 363.\\nII. A county can have no liability, except as authorised, expressly, or by necessary implication, by some statute. Counties are political subdivisions of the state, created for convenience. They are not corporations tuith the right to sue and be sued as an incident to their being, but are quasi-corporations, invested by statute with certain powers, and subject to certain liabilities, and can neither sue nor be sued, except as authorized by statute. The right to maintain a suit like this is not only outside of the contemplation of the statute, but is opposed by every consideration of public policy. Nugent et ah v. Board Miss. Levee Commissioners, 58 Miss. 197; Redditt v. Wall, 53 So. 45, 34 L. R. A. (N. S.) 152; Harrison Coimty v. Marione, 110 Miss. 592, 70 So. 702; Grenada v. Grenada County, 115 Miss. 831, 76 So. 682; Stephen v. Beaver Dam Drainage District, 123 Miss. 884, 86 So. 641.\\nFor the construction and decisions of the courts of other states, involving similar chapters to chapter 217 of the Laws of 1918, involving the liability of counties for the failure of the board of supervisors to require the formal construction bonds as provided, see: Fore, Receiver, etc., v. Feimster et ah, Board of Comwssioners of Iredell County, cited in 1916 (F) L. R. A. 481; Bushnell v. Haynes, 156 Pac. 343; Reinhardt & Donovan Go. v. Board of Commissioners of Choctaiv County, 173 Pac. 848; Moss Iron Works, et al., v. Jackson County, et al., 109 S. E. 343.\\nIII. The board of supervisors ivere acting in their official capacity at the time of the negligence complained of, a/nd not in their individual capacity, and appellant had constructive notice of the failure of said contractors to file said formal construction bond. Jefferson County v. Grafton, 74 Miss. 435. The question of the individual liability of a public officer for the wrongful acts of a corporate body of which he is a member has not often been presented to the courts, for adjudication. The rule, however, appears to be established that a public officer, who is a membef of a corporate body upon which a duty rests, cannot be liable for the neglect of the duty of that body. If there be a refusal to exercise the powers of such body, it is the refusal of the body, and not of the individuals composing it. The official action of its different members is merged into the official action of the board itself as an entity. 22 Page 487; Moner v. Godbold, 116 La. 165, 40 So. 604, 5 L. R. A. (N. S.) 463; Blrnichard Appt. v. George E. Burns et al., 62 S. W. (Ark.) 63, also 49 L. R. A. (N. S.) 1199; Hydraulic Press Co. v. School District, 79 Mo. App. 665; Bassett v. Fish, 75 N. Y. 303; Monnier v. Godbold, 116 La. 165, 5 L. R. A. (N. S.) 463, 40 So. 604, 7 Ann. Cases 768; Blanchard v. Burns, 162 S. W. 63, 49 L. R. A. (N. S.) 1199; Packard v. Volts et al., 62 N. W. 757; Worden v. Witt, 4 Idaho 404, 39 Pac. 1114; Youmans v. Thornton, 31 Idaho 10, 168 Pac. 1141; Bushnell v. Haynes et al., 56 Okla. 592,156 Pac. 343.\\nIf the court will examine appellant\\u2019s cases, with only one or two exceptions, these decisions will be found to be based upon statutes, which expressly provide, for the liability of the county or the board individually, for their negligence and failure to require said construction bond to be filed; that in all of the states, where the liability is not made so by express provision of the statute, or by necessary implication, the courts have held that the board was neither liable officially, nor in their individual capacity.\\nHeadnote 1. Counties, 15 C. J., sections 1, 274; 2. Counties, 15 C. J., section 274; 3. Counties, 15 C. J., section 132; 4. Counties, 15 C. J., section 254.\", \"word_count\": \"5364\", \"char_count\": \"30732\", \"text\": \"Cook, J.,\\ndelivered the opinion of the court.\\nThis is an appeal from a decree of the chancery court of Leflore county sustaining the demurrers of appellees, defendants below, to the bill of complaint of the Pidgeon Thomas Iron Company, appellant, filed against Leflore county, the members of the board of supervisors of Leflore county, individually, and the United States Fidelity & Guaranty Company, surety. The appellant filed its bill charging that the board of, supervisors of Leflore county advertised, as the law directs, for bids for the construction of a certain concrete bridge in said county, according to plans and specifications on file in the office of the clerk of said board, and at the same time required that the bidders should file with their proposals a surety bond, in the sum of two thousand five hundred dollars, conditioned according to law; that the Larimer & Burgett Bridge Company, in answer to said advertisement, filed its proposal for said work with the clerk of the board, and at the same time filed with its proposal its bidder's bond as required by the advertisement for bids, in the sum of two thousand five hundred dollars, with the United States Fidelity & Guaranty Company as surety, conditioned that in the event the said contract should be awarded to the said Larimer & Burgett Bridge Company, that the said bridge company would thereafter execute and enter into a formal contract, within the time required by law, for the construction of said work, and execute a good and sufficient bond as required by law for the performance of the terms and conditions of said contract; that said proposal by the said Larimer & Burgett Bridge Company was accepted by the board of supervisors and the contract made with the said bridge company for the erection and construction of said work.\\nThe bill further charged that the bidder's bond filed with the proposal by the said Larimer & Burgett Bridge Company was executed by the United States Fidelity & Guaranty Company as surety, and was conditioned as follows:\\n\\\"Whereas, the said principals have submitted to board of supervisors of Leflore county, Mississippi, a proposal for certain bridge work; and\\n\\\"Whereas, it is required by the advertisement for proposal of said work that these presents accompany the proposal, now, therefore, the condition of this obligation is such that if, in event of the contract for certain bridge work being awarded the said principals, the principals shall execute and enter into a formal contract within the time required and will furnish good and sufficient surety to secure the performance of the terms and conditions of the contract, then this obligation to be void, otherwise to remain in full force and effect.\\\"\\nThe bill further charges that the work was done according to the plans and specifications and that upon completion of said work the same was accepted and paid for at the contract price by the board of supervisors, and the Larimer & Burgett Bridge Company thereafter released from any further liability to said county, and that more than six months had elapsed from the date of such acceptance and payment.\\nThe bill further avers that the appellant is engaged in the business of furnishing material for the erection and construction of bridges, and that at the request of the said Larimer & Burgett Bridge Company it furnished certain material which was used and entered into the construction of said work, amounting in the aggregate to one thousand three hundred ninety-eight dollars and ninety-eight cents; that this amount had never been paid; that the said Larimer & Burgett Bridge Company7 is insolvent, and consequently the appellant was unable to collect from the bridge company the amount due it for the material furnished in the erection and construction of the bridge.\\nThe bill further avers that under chapter 217, Laws of 1918, after the execution of the said bidder's bond by the successful bidder, the said board of supervisors should have required a formal construction bond from the Larimer & Burgett Bridge Company for the protection of materialmen, and that the said board in disregard of its duty under said act, negligently and carelessly, and in disregard of the rights of the appellant, neglected to require said contractors to execute the bond as required by said statute, and permitted the said contractors to enter into said contract and complete the same without giving any security therefor, by bond or otherwise, for the payment of - materialmen, and that in consequence there is now no fund available for the creditors of the said contractor to collect the money for labor and material furnished, and that, as a result of the negligence and carelessness of the said board of supervisors and Leflore county, said county and the board of supervisors, officially and individually, have become liable to the appellant for the amount furnished by it to the contractors for material used in the construction of the bridge.\\nThe bill further charged that the condition named in the bidder's bond to-wit :\\n\\\"The principals shall execute and enter into a formal contract within the time required; and will furnish good and sufficient surety to secure the performance of the terms and conditions of the contract.\\\" \\u2014 has been breached, and as a consequence of the violation of the condition of said bond, which inured to the benefit of appellant, a right of action has accrued to the appellant and the other creditors of the said bridge company, under chapter 217, Laws of 1918, against the United States Fidelity & Guaranty Company, surety, for the amount of material furnished in the erection and construction of said bridge.\\nThe bill further charges that Leflore county and its board of supervisors, officially and individually, are liable to appellant for the amount of said material furnished to the contractor, by reason of the failure of the county and the board to require the execution of the bond required by chapter 217, Laws of 1918, and also charges that, in addition to the liability of the county and the board of supervisors, the United States Fidelity & Guaranty Company is also liable to appellant for the amount of material furnished by it because of the breach of the condition in the said bidder's bond, and prays for a decree against all of the defendants or such of them as the court may find to be liable, and for general relief.\\nEach of the defendants demurred to the bill of complaint, the demurrers were sustained by the court, and complainant refusing to amend, the bill was dismissed, and from this decree this appeal was prosecuted.\\nThe appellant in its bill of complaint seeks to fasten liability on the county and on the board of supervisors, individually, for the reason that the board neglected and failed to require the contractor to execute the formal construction bond as required by chapter 217, of the Laws of 1918; the provisions of this act being, in part, as follows:\\n\\\"Any person entering into a formal contract with this state, any county thereof, municipality therein, or any political subdivision whatsoever therein, for the construction of any building or work or the doing' of repairs, shall be required before commencing same to execute the usual bond, with good and sufficient sureties, with the additional obligation that such contractor or contractors shall promptly make payments to all persons supplying labor or material therefor; and any person who has furnished labor or materials . . > and where-for payment has not been made, shall have the right to intervene and be made a party to any action instituted on such bond, and to have their rights adjudicated in such action and judgment rendered thereon, subject, however, to the priority of the claim and judgment of the obligee.\\\" Section 1.\\nThe first question that arises is whether or not a county is liable for the neglect or failure of its'officers to require a contractor who is engaged in construction work for such county to furnish a formal construction bond, with an additional obligation for the protection of persons furnishing labor or material to such contractor.\\nCounties are political subdivisions of the state, created for the purpose of discharging public duties, and it is settled by numerous decisions of this court that no suit can be maintained against a county for the negligence of its officers unless such liability is created by some statute, expressly or by necessary implication. In the case of Brabham v. Supervisors, 54 Miss. 363, 28 Am. Rep. 352, the court said:\\n\\\"A county can have no liability except as authorized, expressly or by necessary implication, by some statute. Counties are political divisions of the state, created for convenience. They are not corporations with the right to sue and be sued as an incident to their being, but are g-wasi-corporations, invested by statutes with certain powers, and subject to certain liabilities, and can neither sue nor be sued, except as authorized by statute.\\\"\\nIn Redditt v. Wall (Miss.), 55 So. 45, 34 L. R. A. (N. S.) 152, the court held that: ' ' All the duty which a county owes to any member of the public is prescribed by statute, and all the liability which can be imposed upon it must be found in the same authority.\\\"\\nIn City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682, it was said that: \\\"There can be no liability against either the state or a county unless it be expressly or impliedly created by statute.\\\"\\nAgain, in Stephens v. Beaver Dam Drainage District, 123 Miss. 884, 86 So. 641, the court said: \\\"In the absence of a valid statute imposing liability therefor, a public corporation created in invitum for the purpose of discharging a public function is not liable for the negligence of its officers, agents, or employees.\\\"\\nFor the application of the same doctrine see, also, Jefferson County v. Grafton, 74 Miss. 435, 21 So. 247, 36 L. E. A. 798, 60 Am. St. Rep. 516; Nugent et al. v. Board of Levee Commissioners, 58 Miss. 197; Harrison County v. Marione, 110 Miss. 592, 70 So. 702; Ayres v. Board of Trustees (Miss.), 98 So. 847.\\nChapter 217 of the Laws of 1918, which requires any contractor engaged in construction work for a county to execute a formal construction bond, with an additional obligation for the protection of laborers and material-men, does not impose any liability on such county, either expressly or by necessary implication, for the negligence of its officers in failing to require such bond, and, since there is no other statute imposing such liability, it follows that the decree of the court below sustaining the demurrer of the county is correct.\\nThe next question presented for decision is: Did the failure of the board of supervisors to take the bond required by chapter 217 of the Lqws of 1918 constitute such negligence on the part of the members of such board as to render them individually liable to the plaintiff for the value of material furnished the contractor?\\nThe board of supervisors of a county is created by statute for special purposes, and it exercises only such powers as are conferred by statute, either expressly or by implication, and it is charged with the performance of such duties as are imposed by statute. In the discharge of the duties imposed upon the board the members thereof act in an official and not an individual capacity, and any neglect or failure in the exercise of its powers or discharge of its duties is the default of the board, and not of the individuals composing it, and they are not liable for such default unless made so by statute. Chapter 217, Laws of 1918, does not in terms impose any duty upon the members of the board as individuals, but only as officials representing the public, and it does not impose any individual liability for the defaults of the board in respect to the duties thereby imposed upon it.\\nIn 22 R. C. L., p. 487, in discussing the question of the individual liability of a public officer for the wrongful acts of a corporate body of which he is a member, it is said:\\n\\\"The rule, however, appears to be established that a public officer, who is a member of a corporate body upon which a duty rests, cannot be held liable for the neglect of duty of that body. If there be refusal to exercise the power of such body, it is the refusal of the body, and not of the individuals composing it. The official action of its different members is merged into the official action of the board itself as an entity. ' '\\nIn the case of Hydraulic Press Brick Co. v. School District, 79 Mo. App. 665, the court of appeals, in discussing a similar question, used the following language: \\\"In the letting of the contract and in their failure to take the bond of the contractors, the directors did not act as individuals engaged in the enterprise of erecting a building but as a board of directors through which the school district manifested its will,\\\" \\u2014 and it was held that the individual directors were not individually liable.\\nIn Bassett v. Fish, 75 N. Y. 303, the court said: \\\"But it is not seen how a member of a corporate body, upon which body a duty rests, can be held individually liable for the neglect of its duty by that body. There is no duty upon him to act individually. TIis duty is as a corporator, and it is to.act in the corporation in the way prescribed for its action, and by the use of its powers and means. And if there is neglect to exert its powers or all its means, it is the neglect of the body and not of the individuals composing it.\\\"\\nThis language of the New York court was quoted with approval iu the case of Monnier v. Godbold, 116 La. 165, 40 So. 604, 5 L. R. A. (N. S.) 463, 7 Auu. Cas. 768, in which a similar question was under consideration. For an application of the same doctrine see, also, Blanchard v. Burns, 110 Ark. 515, 162 S. W. 63, 49 L. R. A. (N. S.) 1199.\\nIn the absence of an express declaration of legislative intention to impose individual liability on the members of a board of supervisors for' the defaults of the board, we think it is clear that none exists, and that the demurrer filed on behalf of the members of the board was properly sustained.\\nThe last question presented for decision, and the one raised by the demurrer of the United States Fidelity & Guaranty Company, surety on the bidder's bond, is whether, by reason of the provision of chapter 217, Laws of 1918, requiring construction bonds to contain an obligation for the protection of laborers and materialmen, the surety on the bidder's bond became liable to a materialman on account of the failure of the contractor to execute this bond.\\nSection 361, Code of 1906 (section 3734, Hemingway's Code), provides that all contracts by boards of supervisors for any public work, where the amount of the contract shall exceed fifty dollars, shall be made upon public notice and proper advertisement, stating the work to be done, and inviting sealed proposals therefor, to be filed with the clerk, and that the board shall award the contract to the lowest bidder, who shall comply with the terms imposed by the board, and enter into bond with sufficient sureties, to be approved by the board, in such penalty as may he fixed by such board, but in no case to be less than the contract price, conditioned for the prompt, proper, and efficient performance of the contract. This is the \\\"usual\\\" bond referred to in chapter 217, Laws of 1918, and which by that act is required to con taiu \\\"the additional obligation that such contractor shall promptly make payments to all persons supplying labor or material\\\" for the work. There is no statutory requirement that the advertisement for bids for public work shall require a bond to accompany such bids when filed, and the bond executed by the appellee surety company and submitted with the successful contractor's bid or proposal is not one required by statute. The bond was conditioned to guarantee that, in the event the contract should be awarded to the principal obligor, such principal would, within such time as might be fixed by the board, execute and enter into a formal contract, and furnish good and sufficient surety to secure the performance of the terms and conditions of the contract, and it is common knowledge that it is almost the universal custom, and a very wise one, to require some sort of security to guarantee the county against irresponsible bidders-, who might fail to qualify for the performance of the work, by entering into a formal contract'and furnishing the statutory performance bond. The bond is conditioned for the protection of the county, the sole obligee therein, and it is not for the benefit or protection of persons furnishing material to the contractor, who are not parties thereto and have no rights therein, either by the express terms of the obligation or by statutory enactment. The board of supervisors had the right, as was its duty, to have required the contractor to execute the performance contract and bond before it was permitted to begin the work, and upon the failure or refusal of the contractor so to do the county would have been entitled to recover of the bondsmen all loss or damage suffered by it by reason of such failure. The board of supervisors, however, permitted the contractor to enter upon the performance of the work without having executed either a formal contract or a bond for the satisfactory performance of the work, and it was completed according to the plans and specifications and to the entire satisfaction of the board. As to whether or not the county could have maintained an action upon this bond in the event it had suffered loss by reason of the contractor's failure to satisfactorily complete the contract after being permitted to begin the work without complying with the preliminary statutory conditions, it is unnecessary to decide, but we think it is clear that laborers and materialmen, who were in no way parties to the bond, and whose only rights arise under the statutory bond provided for by chapter 217, Laws of 1918, cannot do so.\\nIt follows from the views herein expressed that the decree of the court below must be affirmed.\\nAffirmed.\"}" \ No newline at end of file diff --git a/miss/769303.json b/miss/769303.json new file mode 100644 index 0000000000000000000000000000000000000000..558271d8cfd8a9db22c2f57132b3a73cf1c76dc8 --- /dev/null +++ b/miss/769303.json @@ -0,0 +1 @@ +"{\"id\": \"769303\", \"name\": \"Gulf & S. I. R. Co. v. Kelly\", \"name_abbreviation\": \"Gulf & S. I. R. v. Kelly\", \"decision_date\": \"1922-09\", \"docket_number\": \"No. 23033\", \"first_page\": \"133\", \"last_page\": \"136\", \"citations\": \"131 Miss. 133\", \"volume\": \"131\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T23:37:57.625872+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Gulf & S. I. R. Co. v. Kelly.\", \"head_matter\": \"Gulf & S. I. R. Co. v. Kelly.\\n[95 South. 131.\\nNo. 23033.]\\n1. Account, Action On. Defendant failing to file affidavit disputing account not foreclosed on all defenses.\\nSection 1978, Code 1906 (Hemingway\\u2019s Code, section 1638), providing that a person suing on an open account may make affidavit to the correctness of such account, and that it is due from the defendant, and that such affidavit attached to the account shall entitle the plaintiff to, judgment at the trial term of the court unless the defendant make affidavit and file with his plea that the account is not correct, particularizing wherein it is not correct, etc., gives the account sued on and so supported by plaintiff\\u2019s affidavit conclusive effect as evidence unless the defendant should controvert its correctness by counter affidavit as provided by the statute; but said statute does not provide a rule of pleading and practice but a rule of evidence, and, where the defendant fails to file the affidavit provided by the statute, he is not cut off from making any and all defenses to plaintiff\\u2019s action.\\n2. Account, Action on. Defendant failing to file counter affidavit, not precluded from showing that contract sued on not executed.\\nSuch statute applies alone to suits upon open accounts, and one of its purposes is to relieve the plaintiff from the trouble and expense of proving each item of the account sued on where he makes the affidavit provided by the statute, and where the counter affidavit therein provided for is not made by the defendant. And, when such affidavit is made by the plaintiff, and no such counter affidavit is interposed by the defendant, the latter is not precluded from showing by way of defense that he never made the contract which is the basis of the account sued on.\\nAppeal from circuit court of Forrest county.\\nHon. B. S. Hall, Judge.\\nAction by W. L. Kelly against tbe Gulf & Ship Island Bailroad Company. From a judgment for plaintiff, defendant appeals.\\nBeyersed and remanded.\\nB. E. Eaton and T. J. Wills, for appellant.\\nF. M. Hunt, for appellee.\", \"word_count\": \"1221\", \"char_count\": \"7167\", \"text\": \"Anderson, J.,\\ndelivered the opinion of the court.\\nThis is an appeal by the Gulf & Ship Island Railroad Company from a judgment of the circuit court of Forrest county for eighty dollars and costs in favor of appellee, W. L. Kelly, which cause originated in the court of a justice of the peace, where a judgment was also rendered in favor of appellee, from which the appellant appealed to the said circuit court. At the conclusion of the evidence for appellee the court directed a verdict in appellee's favor which ivas accordingly returned, and the judgment appealed from entered thereon.\\nThe claim upon which suit was based is in the form of an open account in favor of appellee against appellant, and is in the following language:\\n\\\"Hattiesburg, Miss., Jan. 21, 1922.\\n\\\"Gulf & Ship Island Railroad Co., a Mississippi corporation, to W. L. Kelly, Dr. To night watching for 20 nights in September and October, 1921, at $4.00 per night, $80.00.\\\"\\nThere was attached to this account an affidavit by ap'pellee, in the usual form, of its correctness, and that it was due from appellant.\\nAppellee testified in his own behalf. In addition one Henry Gray testified for appellee. This was all the evidence introduced by the appellee except the account sued on with the affidavit attached thereto. The appellee and the witness Gray testified that the latter was night watchman for appellant at Hattiesburg; that appellant's freight cars were being burglarized at that place: that the witness Gray had authority from appellant's superintendent to employ appellee to assist him in detecting and arresting* persons burglarizing appellant's cars; that appellee's wages fox' his services were not agreed xxpon, except that the witness Gray told him it would be fx'Oin three dollars to four dollars a day; that appellee under this einployment worked as xxight Avatchmaxx about the yards of appellant in Hattiesburg ixx conjunction with the witness Gray for twenty nights. At the conclusion of appellee's evidexxce both appellee and appellant moved the court for a directed verdict. Before said motions were passed upon by the court, however, appellant proposed to introduce evidence denying that it made any contract of employment with appellee to render the service for which he sued, and therefore that appellant was not liable to appellee for any amount ivhatsoever. The court refused to permit appellant to make any further defense to the suit of any character, on the ground that, the appellant having failed to file an affidavit as provided by section 1978, Code of 1906 (Hemingway's Code, section 1638), denying the correctness of the account sued on, appellee was entitled to a judgment. Later the court directed the jury to return a verdict for the appellee. The statute in question is in this language:\\n\\\"A person desiring to institute suit upon an open account in his favor, may make affidavit to the correctness of such account, and that it is due from the party against whom it is charged; and in any suit thereon such affidavit attached to the account shall entitle the plaintiff to judgment at the trial term of the suit, unless the defendant make affidavit and file with his plea that the account is not correct, particularizing wherein it is not correct, in which event the affidavit to the account shall entitle the plaintiff to judgment only for such part of the account as the defendant by his affidavit shall not deny to be due; but this shall not apply to accounts against decedents and suits against executors or administrators. A defendant desiring to use an open account as a set-off shall be entitled to the benefit of this section.\\\"\\nIn Aaron v. Podesta, 60 Miss. 82, the court in passing on the purpose and effect of this statute said that it gave to an account sued on, when supported by the plaintiff's affidavit thereto attached, a conclusive effect as evidence unless the defendant should controvert the correctness of the account by the oath provided by the statute. But the court said further that the statute provided a rule of evidence, and not one of pleading and practice, and did not preclude the defendant from malting any and all defenses.\\nIt will be noted that the statute applies alone to suits upon open accounts. The purpose of the statute is to relieve the plaintiff from the trouble and expense of proving-each item of the account sued on where he makes affidavit to it as provided by the statute, and where the defendant by counter affidavit has failed to deny the correctness of the account as provided by the statute. The failure of the defendant to interpose such a counter affidavit does not bar him from showing by way of defense that he never made the contract which is the basis of the account sued on. In other words, the defendant is not cut off from showing that none of the items of the account is due by him because he never made the contract out of which they grew.\\nIt follows from these views that the trial court erred in refusing to permit appellant to introduce the evidence which it proposed to introduce, and in directing a verdict for appellee.\\nReversed and remanded.\"}" \ No newline at end of file diff --git a/miss/8160250.json b/miss/8160250.json new file mode 100644 index 0000000000000000000000000000000000000000..a1ce98677eb756c463557d4f6ba391b63d8715c5 --- /dev/null +++ b/miss/8160250.json @@ -0,0 +1 @@ +"{\"id\": \"8160250\", \"name\": \"Octzavius Nekeith WEAVER, Appellant, v. STATE of Mississippi, Appellee\", \"name_abbreviation\": \"Weaver v. State\", \"decision_date\": \"2008-09-23\", \"docket_number\": \"No. 2007-KA-01423-COA\", \"first_page\": \"142\", \"last_page\": \"148\", \"citations\": \"996 So. 2d 142\", \"volume\": \"996\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T01:20:29.539098+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before LEE, P.J., ROBERTS and CARLTON, JJ.\", \"parties\": \"Octzavius Nekeith WEAVER, Appellant, v. STATE of Mississippi, Appellee.\", \"head_matter\": \"Octzavius Nekeith WEAVER, Appellant, v. STATE of Mississippi, Appellee.\\nNo. 2007-KA-01423-COA.\\nCourt of Appeals of Mississippi.\\nSept. 23, 2008.\\nRehearing Denied Dec. 16, 2008.\\nJustin Taylor Cook, attorney for appellant.\\nOffice of the Attorney General by W. Glenn Watts, attorney for appellee.\\nBefore LEE, P.J., ROBERTS and CARLTON, JJ.\", \"word_count\": \"2289\", \"char_count\": \"14128\", \"text\": \"LEE, P.J.,\\nfor the Court.\\nPROCEDURAL HISTORY\\n\\u00b6 1. On July 18, 2006, a jury in the Hinds County Circuit Court found Octzavius Nekeith Weaver guilty of one count of possession of a firearm by a convicted felon and one count of armed robbery. Weaver was sentenced as a habitual offender to life imprisonment on each count and ordered to serve the sentences concurrently in the custody of the Mississippi Department of Corrections. Weaver now appeals, asserting the following issues: (1) the trial court erred in allowing inadmissible evidence against him; (2) the trial court erred in allowing inadmissible evidence of identification because he was denied his constitutional right to counsel; (3) his defense was prejudiced by the State's improper comments on his post-Miranda silence; (4) his trial counsel's ineffectiveness deprived him of his right to a fair trial; and (5) the cumulative errors resulted in a violation of his right to a fair trial.\\nFACTS\\n\\u00b6 2. At approximately 6:00 p.m. on May 16, 2006, William Penn was robbed at gunpoint outside The Green Room, a pool hall in Jackson, Mississippi. Penn noted the license plate number of the car his assailant used to get away and gave that license plate number to the police. The police traced the car to 2940 Randolph Street in Jackson. Upon arriving, the police saw the vehicle in question, recovered a handgun from the bushes outside the house, and took two men, Octzavius Weaver and William Harris, into custody. In the getaway car, officers found a card bearing Penn's name and a spare key to Penn's car, which had been in Penn's stolen wallet.\\n\\u00b6 3. The police called Penn at home later that same evening to identify his assailant. Penn identified Weaver from a computer-generated lineup of six possible suspects. Penn was escorted into a holding room with Harris, but he did not recognize Harris. Penn was escorted into a second room with Weaver and identified Weaver as his assailant.\\n\\u00b6 4. At trial, Harris testified that the car belonged to his girlfriend, but he had been in control of the car while she was away. Harris further testified that he loaned the car to Weaver on the day of the robbery.\\nDISCUSSION\\nI. DID THE TRIAL COURT ERR IN ADMITTING IDENTIFICATION EVIDENCE?\\n\\u00b6 5. In his first issue on appeal, Weaver contends the show-up identification procedure used to identify him as the assailant was faulty. In assessing the validity of identification testimony, we look to the five factors from Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). These factors were adopted by our supreme court in York v. State, 413 So.2d 1372, 1383 (Miss.1982) and are as follows: (1) \\\"the opportunity of the witness to view the criminal at the time of the crime\\\"; (2) \\\"the witnesses] degree of attention\\\"; (3) \\\"the accuracy of the witnesses] prior description of the criminal\\\"; (4) \\\"the level of certainty demonstrated by the witness at the confrontation\\\"; and (5) \\\"the length of time between the crime and the confrontation.\\\" For the following rea sons, we find that the State has sufficiently demonstrated that Penn's identification of Weaver met the five Biggers factors.\\n\\u00b6 6. Weaver was apprehended within a few feet of a weapon resembling the one used in the crime, within a few feet of the getaway vehicle used in the crime, and with Penn's personal belongings in the getaway vehicle. There was also testimony that Weaver had control and custody of the vehicle during the time of the robbery. These facts mirror the factors that were persuasive to the Court in Banks v. State, 816 So.2d 457, 460-61(\\u00b6 16) (Miss.Ct.App.2002). In Banks, the victim saw the assailant up close for a few seconds and made a positive identification of him soon after the assault and robbery. Id. That victim was robbed in January at 6:30 p.m. when the sun was down, and the sky was dark. Id. at 458(\\u00b6 2). In the instant case, Penn identified his assailant two hours after seeing him for a few seconds in broad daylight.\\n\\u00b6 7. Weaver also contends the show-up identification procedure violated established criminal procedure. However, Weaver never explains how the show-up identification procedure was tainted and never cites to which established principles of criminal procedure were violated. Weaver takes issue with Penn's statement that the police \\\"told me they had him in custody,\\\" but there is no indication by either Weaver or the State that Penn was directly quoting the officer who called him. This issue is without merit.\\nII. DID THE TRIAL COURT ERR IN ALLOWING IDENTIFICATION EVIDENCE BECAUSE WEAVER WAS DENIED HIS CONSTITUTIONAL RIGHT TO COUNSEL?\\n\\u00b6 8. In his second issue on appeal, Weaver claims the trial court erred in admitting evidence that should have been ruled inadmissible because he was exposed to the show-up identification procedure after invoking his right to counsel and before counsel was provided. The supreme court has held, \\\"A participant in a lineup has a right to have a lawyer present only if criminal proceedings have been instituted against him.\\\" York, 413 So.2d at 1383.\\n\\u00b6 9. In the instant case, Weaver was not \\\"the accused,\\\" and criminal proceedings had not yet been initiated against him at the time of the identification procedure. Weaver was merely a suspect at the time of the visual identification by Penn. See Thompson v. State, 726 So.2d 233, 236-37 (\\u00b6\\u00b6 17-18) (Miss.Ct.App.1998). This issue is without merit.\\nIII. WAS WEAVER'S DEFENSE PREJUDICED BY IMPROPER STATEMENTS BY THE STATE CONCERNING HIS POST-MIRANDA SILENCE?\\n\\u00b6 10. In his third issue on appeal, Weaver claims the State made two improper statements about his post-Miranda choice to remain silent. In regard to the first statement at issue, we note that Weaver failed to object during trial. Regardless of the procedural bar, we will address the merits.\\n\\u00b6 11. The first statement occurred during the redirect examination of Detective Kent Daniels. Detective Daniels was asked the following by the State: \\\"Did [Weaver] ever say he didn't do it?\\\" Detective Daniels responded, \\\"No, he didn't.\\\" We note that immediately prior to this statement, during cross-examination, Weaver's counsel had asked Detective Daniels the following: \\\"And basically to this day the defendant hasn't given any incriminating statements against himself, has he? He's never said he did it or anything; is that true?\\\" Detective Daniels responded, \\\"Correct.\\\" The supreme court has held \\\"a defendant cannot complain of evidence he himself brings out.\\\" Pruitt v. State, 807 So.2d 1236, 1241(\\u00b6 14) (Miss.2002). This issue is without merit.\\n\\u00b6 12. The second statement at issue was asked by the State to Detective Daniels on redirect: \\\"At any time has Octza-vius Weaver provided you with any alibi or any alternative theory to this investigation?\\\" According to the record, the question was withdrawn after Weaver's counsel's objection, and Detective Daniels never answered the question. Therefore, no comment was made before the jury of Weaver's decision to remain silent. Weaver contends that the jury could have inferred from the question that Weaver had chosen to remain silent.\\n\\u00b6 13. In Gossett v. State, 660 So.2d 1285 (Miss.1995), a police officer was prevented by an attorney from making a comment about the defendants' post-Miranda silence. Id. at 1291. On subsequent appeal, the defendants argued the officer just coming close to making the comment breached their respective Fifth Amendment rights against self-incrimination. The supreme court, however, held that:\\nIt is never proper to comment on an accused's post-Miranda silence, and normally it will be regarded by this Court as reversible error. In the case at hand, however, it is arguable whether [the officer's] response ever indicated that the defendants refused to make any comments. The prosecutor anticipated an improper response which would have likely alluded to post-arrest silence, but the witness was effectively prevented from actually testifying to such. It is questionable from this standpoint whether any error had occurred as the witness was silenced before actually making an improper comment. If the response had clearly referred to post-Miranda silence, the error would still have been deemed harmless beyond a reasonable doubt in light of the overwhelming evidence in support of the defendants' guilt in this case.\\nId. (internal citations omitted).\\n\\u00b6 14. In the instant case, any deductions that the jurors may have drawn as a result of the unspoken comments by Detective Daniels are considered harmless in light of the overwhelming weight of evidence of Weaver's guilt. This issue is without merit.\\nIV. WAS WEAVER'S TRIAL COUNSEL INEFFECTIVE?\\n\\u00b6 15. In his fourth issue on appeal, Weaver claims his trial counsel was ineffective. In order to successfully claim ineffective assistance of counsel, Weaver must demonstrate that (1) his attorney's performance was deficient, and (2) such deficient performance deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a strong presumption that the attorney's conduct fell within the wide range of reasonable professional assistance. Hiter v. State, 660 So.2d 961, 965 (Miss.1995). Weaver must show that, but for his attorney's performance, he would have received a different outcome at the trial level. Stringer v. State, 627 So.2d 326, 329 (Miss.1993).\\n\\u00b6 16. Weaver's first instance of his counsel's ineffectiveness was Weaver's appearance on the first day of trial in prison attire. During pretrial motions, the trial court gave Weaver the opportunity to object to wearing prison attire, and he chose not to. After the first day of trial, clothing was found for Weaver. The supreme court has held numerous times that a defendant appearing in a prisoner's uniform or clothing is not necessarily reversible error, stating:\\nFurthermore, a review of the case law indicates this Court will not reverse a defendant's conviction just because the jury may have observed the defendant in prison attire. Davenport v. State, 662 So.2d 629, 632-33 (Miss.1995) (holding-jury's coincidental viewing of defendant in shackles while being transported outside the courthouse and downstairs in the courthouse was not reversible error); Wiley v. State, 582 So.2d 1008, 1014 (Miss.1991) (holding technical violation of jurors coincidentally viewing defendant in shackles in the courthouse hallway was no more prejudicial than defense counsel's reference to defendant being in jail); Coleman v. State, 378 So.2d 640, 645 (Miss.1979) (holding juror's viewing of defendant in prison garb in the jail complex did not constitute reversible error in absence of showing that the jury was prejudiced); Rush v. State, 301 So.2d 297, 300 (Miss.1974) (holding deputy sheriffs bringing defendant in courtroom in jury's presence while handcuffed did not result in any prejudice to his right to fair trial).\\nPuckett v. State, 737 So.2d 322, 339-40(\\u00b6 46) (Miss.1999). Consequently, Weaver's argument is insufficient to establish ineffective assistance by his trial counsel.\\n\\u00b6 17. Weaver's second instance of the alleged ineffectiveness of his trial counsel concerns his trial counsel's failure to request a suppression hearing for any pretrial identification. Prior to trial, Weaver's counsel objected to the introduction of the identification of Weaver by Penn. Weaver's trial counsel stated that he thought a motion for a suppression hearing-had been previously filed, but he was mistaken. As we have already discussed, the overwhelming evidence against Weaver is indicative that even if the prior identifications were stricken, there would be no alteration of the outcome of the trial. We cannot find that the failure of Weaver's trial counsel to properly file a motion to suppress was so deficient as to result in an unfair trial.\\n\\u00b6 18. Weaver's third instance of the alleged ineffectiveness of his trial counsel was his trial counsel's failure to move for a mistrial when the State questioned Detective Daniels concerning Weaver's post-Miranda silence. The concern with this line of questioning has been addressed previously in Issue III and found to be without merit.\\n\\u00b6 19. Weaver's final instance of the alleged ineffectiveness of his trial counsel was his trial counsel's failure to file a motion for a new trial or a judgment notwithstanding the verdict. We do note that Weaver's trial counsel did not file a timely notice of appeal, but Weaver was ultimately granted an out-of-time appeal. According to Jackson v. State, 423 So.2d 129, 131 (Miss.1982), where the grounds for an objection on appeal are included in the record, our review on appeal is not necessarily barred for failure to raise the grounds in a motion for a new trial or a JNOV. Even if Weaver's trial counsel was deficient for failing to file post-trial motions, Weaver has not shown this Court how that deficiency resulted in prejudice to his defense since his issues on appeal were included in the record.\\nV. WAS THERE CUMULATIVE ERROR THAT DEPRIVED WEAVER OF\\nA FAIR TRIAL?\\n\\u00b6 20. Finding each of Weaver's arguments to be without merit, we consequently do not find any cumulative error that would necessitate a reversal. This issue is without merit.\\n\\u00b6 21. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND COUNT II, ARMED ROBBERY, AND SEN TENCED AS A HABITUAL OFFENDER TO LIFE IMPRISONMENT FOR EACH COUNT WITH SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE, PROBATION, REDUCTION OR SUSPENSION OF SENTENCE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.\\nKING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.\"}" \ No newline at end of file diff --git a/miss/8310985.json b/miss/8310985.json new file mode 100644 index 0000000000000000000000000000000000000000..264e255454062768fb54036052c1ce8be80830f4 --- /dev/null +++ b/miss/8310985.json @@ -0,0 +1 @@ +"{\"id\": \"8310985\", \"name\": \"Julia W. LANGE, David L. Lange, James S. Whitaker, Jr. and James S. Whitaker, Sr., by and through the Executrix of the Estate, Joyce Whitaker, Appellants v. CITY OF BATESVILLE, Appellee\", \"name_abbreviation\": \"Lange v. City of Batesville\", \"decision_date\": \"2008-01-08\", \"docket_number\": \"No. 2007-CA-00533-COA\", \"first_page\": \"11\", \"last_page\": \"24\", \"citations\": \"972 So. 2d 11\", \"volume\": \"972\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T01:19:50.943019+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before LEE, P.J., IRVING and ROBERTS, JJ.\", \"parties\": \"Julia W. LANGE, David L. Lange, James S. Whitaker, Jr. and James S. Whitaker, Sr., by and through the Executrix of the Estate, Joyce Whitaker, Appellants v. CITY OF BATESVILLE, Appellee.\", \"head_matter\": \"Julia W. LANGE, David L. Lange, James S. Whitaker, Jr. and James S. Whitaker, Sr., by and through the Executrix of the Estate, Joyce Whitaker, Appellants v. CITY OF BATESVILLE, Appellee.\\nNo. 2007-CA-00533-COA.\\nCourt of Appeals of Mississippi.\\nJan. 8, 2008.\\nSee also 832 So.2d 1236.\\nEdward P. Connell, Charles M. Merkel, Clarksdale, attorneys for appellants.\\nBenjamin E. Griffith, Cleveland, Michael Stephen Carr, Cleveland, attorneys for ap-pellee.\\nBefore LEE, P.J., IRVING and ROBERTS, JJ.\", \"word_count\": \"6171\", \"char_count\": \"36699\", \"text\": \"ROBERTS, J.,\\nfor the Court.\\nSUMMARY OF THE CASE\\n\\u00b6 1. The appellants (the Whitakers) and Panola County entered into an agreement under which the appellants agreed to give the county 70,000 cubic yards of dirt to be used for future construction in exchange for a \\\"public road\\\" the county would build on the appellants' land. After the county realized it was financially unable to complete the project, the City of Batesville (the City) agreed to take over the project and the agreement with the appellants. Confusion over the specifics of the road arose, and the Whitakers began their legal battle with a bill of exceptions that ultimately led to their current complaint for breach of contract filed with the Circuit Court of Panola County. The City subsequently filed a motion for summary judgment, which the trial court granted. This appeal followed.\\nFACTS AND PROCEDURAL HISTORY\\n\\u00b6 2. With the current appeal, the parties find themselves before this Court for the second time. See Lange v. City of Batesville, 832 So.2d 1236 (Miss.Ct.App.2002) (Lange I). As a majority of the underlying facts relevant to the current review were previously stated in sufficient detail in Lange I we now restate those facts verbatim.\\nPanola County developed plans for construction of an arena on property east of Interstate 55 and south of Highway 6 East in Batesville, Mississippi. The County's architect, the Warrior Group, LTD, prepared drawings for what was called the \\\"Arena Project.\\\" Those drawings included both the layout of the buildings to be constructed as well as parking lots and a five-lane road leading from the project and intersecting with Highway 6. Also included was a topographical map detailing the extent to which certain portions of the property would be leveled.\\nOn July 31, 1996, Panola County entered into an agreement for a temporary easement [the Agreement] with [the Whitakers]. The Whitakers granted to Panola County \\\"a temporary right of entry and temporary easement\\\" to a certain parcel of property which was to the east of the Arena Project property. The Whitaker property and the Arena Project property shared a common boundary. The temporary easement allowed Panola County to enter the Whitaker property for the purpose of removing 70,000 cubic yards of dirt. The project ultimately required 100,000 cubic yards of dirt. Once the removal was complete, the easement and right of entry would terminate.\\nSeveral conditions were placed upon the grant of the easement. The condition which is the subject of this litigation reads as follows:\\nThe Grantee [County] has plans to build an expo center and is about to embark upon Phase I thereof. If the Grantee commences Phase 2 of such project within two (2) years of the date hereof, then the Grantors [the Whitakers] agree to dedicate to the county such part of the above described 5.47 acres as may be needed for a public road. If Phase 2 is not commenced within two (2) years but the County has evidenced good faith to commence same within a reasonable period of time, then the Grantors agree to extend the aforesaid two (2) year period for a reasonable time.\\nThe County also agreed to transfer to the Whitakers a .11 acre parcel of property to the east of the road, but only if a road was built.\\nThe County later determined that it did not have the financial resources to continue with the Arena Project. The County began negotiations for transferring ownership to and completing the project by the City of Batesville. The County, in a letter dated August 3, 1998, requested that the negotiations include a promise by the City to honor the agreement it had entered with the Whitakers concerning the possible construction of a public road.\\nThe County and City signed an agreement on June 16, 1999. The City agreed to complete only Phase I of the Arena Project. The agreement specifically stated that Phase I consisted solely \\\"of the construction of a Stall barn and Multi-Plex Arena.\\\" The agreement referred to the plans drawn by the Warri- or Group, LTD. The City specifically refused to agree to the construction of any other parts of the project shown on those plans. The City also specifically agreed to \\\"honor the Agreement for Temporary Easement between the County and James S. Whitaker et al [sic] dated July 31, 1996....\\\" A copy of the temporary easement was attached to the agreement.\\nWhile the Arena Project was proceeding, a new hospital was constructed on property located west of it. Also proposed was the construction of [a] Wal-Mart SuperCenter between Interstate 55 and the new hospital. For clarity, we note that the Whitaker property was to the east of the Arena Project, while both the hospital and the Wal-Mart store were to the west. All these projects were south of the major west-east road, which was Highway 6.\\nAt a February 18, 2000 meeting of the Board of Alderman for the City, discussion turned to the Arena Project. The minutes note that the \\\"need and placement of roads in the area was also discussed.\\\" The minutes note that \\\"Whitaker Road is to be a five lane road.\\\" Presumably, this is a reference to the five-lane public road shown on the plans prepared by the Warrior Group, LTD, and the public road that was to be constructed should Phase 2 of the Arena Project commence.\\nAt a May 2, 2000 meeting, the minutes show that the assistant city attorney was authorized by the Board \\\"to draw up appropriate documents to move forward on the agreement between the County and Mr. Whitaker that the City has agreed to honor.\\\" A memorandum provided to the Whitakers requested that they sign and have notarized a deed to the City \\\"in fulfillment of [the] agreement with the County.\\\" On May 23, 2000, the Whitakers executed a deed donating to the City 4.81 acres of property for the proposed road. The deed did not include specifications for the road such as how many lanes the road might be or when its construction would be completed.\\nAt a September 5, 2000 meeting, the Board decided to delay determining the layout of the roads in the Arena Project area. However, the Board stated that as to the arena, \\\"the main road will be the east most road agreed to in the original agreement between the county and land owners.... \\\" The minutes were later amended to specify that the eastern-most road would be the main road if there were two entrances to the property. The Board also authorized a traffic study for the hospital and civic arena area.\\nAt a September 19, 2000 meeting, the minutes show that James \\\"Doc\\\" Whitaker and John Hyneman were present. Mr. Hyneman had donated to the County a portion of his property for construction of the new hospital. Wal-Mart wished to locate its proposed SuperCen-ter on the remainder of the property owned by Mr. Hyneman near the hospital. The minutes note that both Whitaker and Hyneman \\\"stated their opinions as to the location of the main [road] to this area.\\\" The administrator of the hospital also provided the Board with his preference for location of the main entrance to the area from Highway 6. The Board was informed that the existing entrance was \\\"not adequate for the hospital traffic.\\\"\\nAt the October 3, 2000 meeting, the Board discussed in executive session \\\"the location of a large retail outlet near the new hospital.\\\" When the Board returned to its public meeting, a motion was adopted that the city engineer be ordered to \\\"draw a road design leaving the current entrance off Highway 6 and the frontage road as is and showing construction of an entrance and road at the east side of the city's property with a road T-ing' off this 'new' entrance and road and running westerly to tie into the hospital road network and thereafter to submit this design layout to the business prospect desiring to construct a retail outlet northwesterly of the new hospital for its consideration.\\\" This option would provide a road on the Whitaker property.\\nTwo weeks later, on October 17, 2000, the Board again discussed the issue of road design in the area of the Arena Project. The assistant city attorney stated that Wal-Mart did not approve the road design proposed during the last meeting. The Board decided to adopt \\\"the road configuration as proposed by Wal-Mart in the letters of its attorney. .\\\" The construction of this road configuration was made contingent upon the following: (1) obtaining title to two parcels of land, (2) the removal of a building through which the road would pass, (3) funding, and (4) \\\"matters involving the bidding and construction process.\\\" The minutes of this meeting note that James \\\"Doc\\\" Whitaker and his attorney were present and objected to Wal-Mart's proposal.\\nThe Whitakers appealed this decision by filing a bill of exceptions. The Whit-akers argued that the action of the Board in adopting the Wal-Mart proposal was an \\\"arbitrary and capricious decision of the City of Batesville to alter or ignore its often-stated and often-confirmed obligation to build the 'main' \\u2014 or primary \\u2014 road on the strip of land donated, for that purpose, to the City in May of 2000.\\\" The Whitakers alleged that the City's decision devalued their property and adversely impacted negotiations entered into with other parties about the sale or development of their property. The Whitakers also alleged that their constitutional rights had been violated.\\nThe circuit court found that \\\"the decision of the Batesville Board of Alderman changing the route and location of the primary road to serve a newly constructed community hospital and other commercial developments was not arbitrary and capricious and should be affirmed.\\\"\\nLange, 832 So.2d at (\\u00b6\\u00b6 2-15) (footnote omitted).\\n\\u00b6 3. During their first appeal to this Court, the Whitakers argued that the City breached the contract between them by agreeing to build what would become House-Carlson Road \\\"at the direction of a competing developer and a major retailer.\\\" Id. at (\\u00b6\\u00b6 13,17). They requested the City commence building a road consistent with the May 23, 2000 deed or, in the alternative, damages. Id. We held that the issue of breach was not ripe for review, and \\\"until there is a breach, we may not properly determine exactly what obligations the City has as to the specifics of a road.\\\" Id. at (\\u00b6 22).\\n\\u00b6 4. In April 2001, the Whitakers filed suit in the Northern District of Mississippi, but the action was stayed pending this Court's determination of Lange I. Subsequent to Lange I, the City filed a motion for summary judgment. In the interim, the City completed construction of Whitaker Road in January 2004. In April 2005, the district court granted the City's motion based upon the doctrines of collateral es-toppel and Rooker-Feldman. Specifically, the district court ruled that the issue of whether the Whitakers were entitled to the \\\"main\\\" road was foreclosed by Lange I.The district court further explained that other issues raised by the Whitakers, one of which was a taking claim, were so intertwined with this Court's decision in Lange I that they were also precluded from federal court consideration by the Rooker-Feldman doctrine. Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923); District of Columbia Ct. of App. v. Feldman, 460 U.S. 462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).\\n\\u00b65. On appeal of the district court's ruling, the Fifth Circuit Court of Appeals affirmed the district court's holding based upon collateral estoppel, but vacated the trial court's decision to dismiss a taking claim raised by the Whitakers based upon Rooker-Feldman. Nevertheless, the Fifth Circuit dismissed the claim without prejudice as it determined it was not ripe for review. Following the Fifth Circuit's dismissal, the Whitakers initiated the current cause of action in the Circuit Court of Panola County on January 19, 2006, asserting breach of contract. The City subsequently filed a motion for summary judgment, which was granted by the trial court. The Whitakers now appeal and raise the following issues:\\nI. WHETHER THE TRIAL COURT ERRED BY FAILING TO CONSIDER PAROL EVIDENCE.\\nII. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT THE WHITAKERS' BEACH OF CONTRACT CLAIMS WERE BARRED BY THE DOCTRINE OF COLLATERAL ESTOPPEL.\\nIII. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT THE WHITAKERS WERE NOT ENTITLED TO DAMAGES.\\nSTANDARD OF REVIEW\\n\\u00b6 6. The standard of review employed by an appellate court on review of disposition of a case on summary judgment is clear.\\nIn reviewing a trial court's grant or denial of summary judgment, our well-established standard of review is de novo. Hubbard v. Wansley, 954 So.2d 951, 956 [ (\\u00b6 9) ] (Miss.2007). That being said, summary judgment is appropriate where \\\"the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\\\" Miss. R. Civ. P. 56(c). Additionally, \\\"[t]he evidence must be viewed in the light most favorable to the party against whom the motion has been made.\\\" Green v. Allendale Planting Co., 954 So.2d 1032, 1037 [ (\\u00b6 8) ] (Miss.2007) (quoting Price v. Purdue Pharma Co., 920 So.2d 479, 483 [ (\\u00b6 10) ] (Miss.2006)). \\\"The moving party has the burden of demonstrating that [no] genuine issue of material fact[s] exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.\\\" Id. (quoting Howard v. City of Biloxi, 943 So.2d 751, 754 [ (\\u00b6 4) ] (Miss.Ct.App.2006)).\\nOne South, Inc. v. Hollowell, 963 So.2d 1156(\\u00b6 6) (Miss.2007).\\nANALYSIS\\nI. WHETHER THE TRIAL COURT ERRED BY FAILING TO CONSIDER PAROL EVIDENCE.\\n\\u00b67. The trial court opined that parol evidence should not have been considered when determining the meaning of \\\"public road\\\" as used by the parties. Based partly on Martin v. Newell, 198 Miss. 809, 28 So.2d 796 (1945), the court reasoned that because a board of supervisors or aldermen can only act through its minutes, evidence outside its minutes could not be used to determine its obligations. On appeal, the Whitakers argue the trial court erred in ruling as such for three separate reasons. They argue the phrase is ambiguous, that the agreement is incomplete because it does not recite the specifics of the \\\"public road\\\" to be built and, finally, that the parol evidence rule is not applicable to a determination of the true consideration to a contract. We will address each sub-issue separately.\\nA. Whether the phrase \\\"public road\\\" is ambiguous as used by the parties.\\n\\u00b6 8. The Whitakers first argue that extrinsic evidence should have been considered by the lower court because the phrase \\\"public road\\\" is ambiguous, requiring examination of evidence outside the purview of the parol evidence rule. In support, Lange cites Kerl v. Smith, 96 Miss. 827, 51 So. 3 (1910), a case in which parol evidence was considered to determine the meaning of the word \\\"timber,\\\" and Hattiesburg Plumbing Co. v. Carmichael & Co., 80 Miss. 66, 31 So. 536 (1901), where the supreme court found the term \\\"artesian\\\" ambiguous requiring extrinsic evidence to glean its meaning as used in the contract. As these cases show, it is firmly established that when the language of a contract is ambiguous parol evidence may be admitted to clarify the meaning of the ambiguity. Aron v. Panola-Quitman Grain Corp., 490 So.2d 891, 892-93 (Miss.1986). However, contracts in which one of the parties is a board of supervisors or other public board are treated differently.\\n\\u00b6 9. As firmly established as the parol evidence rule is, and its exception for ambiguities, it is also firmly rooted in this state's judicial precedent that \\\"public boards speak only through their minutes and their actions are evidenced solely by entries on their minutes.\\\" Thompson v. Jones County Cmty. Hosp., 352 So.2d 795, 796 (Miss.1977); Burdsal v. Marshall County, 937 So.2d 45(\\u00b68) (Miss.Ct.App. 2006). One reason for the evidentiary exclusivity of a board's minutes was stated as such:\\nWe also think it was error for the court to permit individual members of the board of supervisors to testify what the board did, and what the board understood, and what the board had authorized to be done in the premises. A board of supervisors can act only as a body, and its act must be evidenced by an entry on its minutes. The minutes of the board of supervisors are the sole and exclusive evidence of what the board did. The individuals composing the board cannot act for the county, nor officially in reference to the county's business, except as authorized by law, and the minutes of the board of supervisors must be the repository and the evidence of their official acts.\\nThompson, 352 So.2d at 796 (quoting Smith v. Board of Supervisors, 124 Miss. 36, 41, 86 So. 707, 709 (1920) (emphasis added)).\\n\\u00b6 10. Additionally, the Thompson court further expounded on the basis for the rule as follows:\\nWhen official authority is conferred upon a board or commission consisting of three or more members, the authority so conferred must be exercised by a legal quorum, and, as a general rule, the decisions to be executed or the contracts to be awarded by the board must be determined or decided upon only in or at a lawfully convened session, and the proceedings must be entered upon the minutes, of the board or commission. The reasons for the requirements aforesaid are: (1) That when authority is conferred upon a board, the public is entitled to the judgment of the board after an examination of a proposal and a discussion of it among the members to the end that the result reached will represent the wisdom of the majority-rather than the opinion or preference of some individual member; and (2) that the decision or order when made shall not be subject to the uncertainties of the recollection of individual witnesses of what transpired, but that the action taken will be evidenced by a written memorial entered upon the minutes at the time, and to which all the public may have access to see what was actually done.\\nThompson, 352 So.2d at 796 (quoting Lee County v. James, 178 Miss. 554, 558-559, 174 So. 76, 77 (1937)) (emphasis added). However, that a board may only speak through its minutes does not equate to the notion that the entirety of a contract must be reproduced within a board's minutes. See Thompson, 352 So.2d at 797. Plans, specifications and other papers specifically referred to by the board in its minutes have been held to constitute a part of the contract. Id. Similarly, the contract \\\"may be enforced if enough of the terms and conditions of the contract are contained in the minutes for [a] determination of the liabilities and obligations of the contracting parties without the necessity of resorting to other evidence.\\\" Thompson, 352 So.2d at 797 (emphasis added). However, the individual or group contracting with a board carries the responsibility to ensure the contract is properly recorded. Id.\\n\\u00b6 11. The Whitakers fail to cite any precedent, and we can similarly find none, for the proposition that the parol evidence rule can be defeated, ambiguity or not, when dealing with a contract of a municipality. That is, that the ambiguity exception to the parol evidence rule trumps the doctrine of exclusivity of a board's minutes. Without such, we hold that application of the parol evidence rule's exception for ambiguity would sit in direct contradiction to the precedent cited supra, and has no application to contracts entered into by a public board. It would allow individuals the ability to state what they believed \\\"the board did, and what the board understood, and what the board had authorized to be done\\\" when the only evidence of what the board did, what the board understood, and what the board had authorized to be done must come from its minutes.\\n\\u00b6 12. Additionally, any ambiguity in an agreement must be construed against the drafters. AmSouth Bank v. Quimby, 963 So.2d 1145, 1152(\\u00b6 19) (Miss.2007). \\\"If the minutes do not reflect what is required [by the contract], the private party can insist that a correction be entered.\\\" JLG Concrete Prods. Co. v. City of Grenada, 722 So.2d 1283, 1287 (Miss.Ct.App.1998). While the issues of JLG Concrete did not include the interpretation of a possible ambiguity, the statement supra is nonetheless instructive on a private party's responsibility in regard to protecting his or her interests when contracting with a municipality, and, by logical implication, the consequences of failing to ensure that the minutes appropriately reflect what the private party believes is required by the contract. Therefore, if evidence of a board's actions is limited to its minutes any ambiguity in those minutes must be construed against the private party as its shouldered the responsibility to see that the contract was recorded to its specifications. Additionally, any interpretation of an ambiguity must be done without the aid of parol evidence. This issue is without merit.\\nB. Whether the agreement is incomplete.\\n\\u00b6 13. The Whitakers next argue that the agreement is incomplete because it does not give specifics of the \\\"public road\\\" that was to be built. In support, they cite to Quick & Grice v. Ashley, 227 Miss. 273, 86 So.2d 40 (1956). In Ashley, Ashley entered into a contract with Quick & Grice to construct a well on Ashley's property. Id., 227 Miss, at 276, 86 So.2d at 41. After two unsuccessful attempts to complete an operable well Ashley brought suit. Id., 227 Miss, at 277-278, 86 So.2d at 41-42. In allowing testimony on the specifications and warranties promised by Quick and Grice, the supreme court stated,\\n[t]he original order did not state whether it was to be a water well, an oil well, a gas well, or a sulphur well. It called for a rod pump and the appellant used a jet pump. There were also changes between the original order and the finished well as to the type of fixtures which were used in connection with the well.\\nId., 227 Miss, at 279, 86 So.2d at 42. As will be explained in issue III, the City was obligated to build a five-lane public road that would serve as the main, east-most road leading to the arena. While the agreement and subsequent discussions by the board of aldermen, as evinced by its minutes, obviously did not go into great detail on the specifics of Whitaker Road, they did describe the road with sufficient detail so as to remove the contract from consideration as incomplete, and with comparison with the contract in Ashley. Therefore, this issue is without merit.\\nC. Whether parol evidence should have been admitted to clarify the consideration contemplated in the Agreement.\\n\\u00b6 14. The Whitakers' last argument, that parol evidence should have been allowed, focuses on the consideration involved in the agreement. ' They argue that because the agreement states \\\"for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration\\\" extrinsic evidence is allowed to show what the true consideration for the agreement was, and cite State Highway Dep't v. Duckworth, 178 Miss. 35, 172 So. 148 (1937) in support. However, this argument is also thwarted by the fact that boards may only speak through their minutes. Id., 178 Miss, at 43, 172 So. at 150.\\n\\u00b6 15. In Duckworth, Duckworth entered into an agreement with the State Highway Department (SHD) that would allow the SHD to enter the Duckworths' land in order to construct a portion of Highway 49. Id., 178 Miss, at 39, 172 So. at 148. The deed executed between the Duckworths and the state granting the state access to the land stated, in pertinent part, \\\"[f]or and in consideration of Two Hundred Sixty-eight & 25/100 ($ 268.25) dollars and other valuable consideration.\\\" Id., 178 Miss, at 40, 172 So. at 149. However, a subsequent requisition, ordered on the minutes of the board, and auditor's voucher stated the $ 268.25 was \\\"in full settlement of. claims and accounts.\\\" Id., 178 Miss, at 41, 172 So. at 149. The Duckworths claimed they had an oral agreement with the SHD that approaches would be built and maintained to enable the Duckworths to be able to cross from one side of their land to the other. Id. The trial court subsequently allowed them to present parol evidence that the approaches were the \\\"other valuable consideration\\\" contemplated in the deed's language. Id., 178 Miss, at 39-41, 172 So. at 148-149.\\n\\u00b6 16. On appeal, the Duckworths supported the trial court's ruling by arguing that, while parol evidence was not admissible to contradict the recitals of a con tract, it is admissible to show the true consideration. Id., 178 Miss, at 43,172 So. at 150. The supreme court reversed the lower court on two separate grounds. Id., 178 Miss, at 43-44, 172 So. at 150. First, the supreme court stated the Duckworths' argument was not applicable to the case as the \\\"full settlement\\\" language included in the voucher and requisition constituted full settlement when the Duckworths accepted payment. Id., 178 Miss, at 43, 172 So. at 150. Second, the court stated:\\nIt is familiar law that boards can only bind the public by contracts entered on their minutes, and that the members, individually, of such a board as the Highway Commission, could not authorize an agent to bind it unless an order therefor was entered upon its minutes authorizing the giving of such authority, or unless the order constituting a contract recited the making thereof, and its approval by the Highway Commission. We think this principle is well established.\\nIt was therefore error to admit oral proof of an agreement antecedent to, or contemporaneous with, the execution of the deed, and there was no authority, under the facts of this record, for the rendition of the judgment . against the Highway [Commission][.]\\nId. (citations omitted). Therefore, as with evidence explaining ambiguity, evidence outside a board's minutes offered to explain the consideration of an agreement with a public board is not admissible. This issue is without merit.\\nII. WHETHER THE TRIAL COURT ERRED IN HOLDING THAT THE WHITAKERS' BEACH OF CONTRACT CLAIMS WERE BARRED BY THE DOCTRINE OF COLLATERAL ESTOPPEL.\\n\\u00b6 17. Under the \\\"FACTS\\\" section of their complaint filed with the Circuit Court of Panola County, the Whitakers alleged that Whitaker Road \\\"differs from what they were originally promised as it is not a main intersection or access to the south of Highway 6, it has no traffic light, and it is not part of the connecting artery joining Highway 35 and Highway 6.\\\" The Whitakers claimed they \\\"suffered a serious devaluation of their property as a result of not receiving a road as originally contracted for in a reasonable amount of time.\\\" Under the heading \\\"BREACH OF CONTRACT\\\" within their complaint, the Whit-akers again stated \\\"the City breached the agreement by failing to perform its promises. Specifically, the City failed to construct Whitaker Road as the main road into the area in question in a timely manner . \\\"\\n\\u00b6 18. The trial court found that in their first appeal to this Court, the Whitakers \\\"included . a breach of contract action seeking money damages claiming that the City's decision devalued their property....\\\" Accordingly, the trial court held \\\"that any argument regarding the building of House-Carlson Road [was a breach of contract], that is that [Whitaker Road] is not the 'main' road, is precluded by the doctrine of collateral estoppel,\\\" reasoning that the exact issue was addressed in Lange I. As Lange I was at the heart of the trial court's determination of this issue, it is necessary to examine our holding in that case.\\n\\u00b6 19. At the time, the Whitakers' claim came before this Court for the first time House-Carlson Road had been approved by the Board, if not already built, and Whitaker Road was not yet in existence. The Whitakers filed a bill of exceptions in protest of the Board's decision, claiming it \\\"was an 'arbitrary and capricious decision of the City of Batesville to alter or ignore its often-stated and often-confirmed obligation to build the \\\"main\\\" \\u2014 or primary\\u2014 road on the strip of land donated but were ultimately unsuccessful; Lange, 832 So.2d at (\\u00b6 14). They appealed this decision to the Circuit Court of Panola County, which found the Board's decision was not arbitrary and capricious. The Whitakers appealed to this Court and included a breach of contract claim despite the fact we were under the same appellate standard of review that constrained the circuit court. Namely,\\nThe standard of review of an order of a Board of Supervisors is the same standard which applies in appeals from the decisions of administrative agencies. Barnes v. Board of Supervisors, 553 So.2d 508, 511 (Miss.1989). \\\"The decision of an administrative agency is not to be disturbed unless the agency order was unsupported by substantial evidence; was arbitrary or capricious; was beyond the agency's scope or powers; or violated the constitutional or statutory rights of the aggrieved party.\\\" Board of Law Enforcement Officers Standards & Training v. Butler, 672 So.2d 1196, 1199 (Miss.1996). See also Van Meter v. City of Greenwood, 724 So.2d 925 (Miss. App.1998).\\nLadner v. Harrison County Bd. of Supervisors, 793 So.2d 637, 638(\\u00b6 6) (Miss.2001).\\n\\u00b6 20. In impliedly holding that the Board's decision was not arbitrary and capricious, we explained that the Whit-akers' breach of contract claim was premature. We stated, \\\"[t]he Whitakers base their claim for breach of contract upon their belief that Whitaker Road will not or cannot now be built\\\" given the City's decision to build House-Carlson Road. Lange, 832 So.2d at (\\u00b6 20). However, there was no evidence in the record to show that Whitaker Road could not still be built in accordance with the agreement and pertinent minutes of the Board. Essentially, we held that the Whitakers' breach of contract claims were not ripe for review, and \\\"[u]ntil there is a breach, we may not properly determine exactly what obligations the City has as to the specifics of a road.\\\" Id. at (\\u00b6 22).\\n\\u00b6 21. Admittedly, implied in this statement is a holding that the City did not breach the agreement solely by constructing House-Carlson Road. However, that is not to say the Whitakers' claims of breach were barred by collateral estoppel. The doctrine of collateral estoppel was recently discussed by the supreme court. The high court stated:\\nUnder the doctrine of collateral estop-pel, \\\"[an] appellant is precluded from relitigating in the present suit specific questions actually litigated and determined by and essential to the judgment in the prior suit, even though a different cause of action is the subject of the present suit.\\\" Lyle Cashion Co. v. McKendrick, 227 Miss. 894, 87 So.2d 289, 293 (Miss.1956). Further, \\\"collateral estoppel, unlike the broader question of res judicata, applies only to questions actually litigated in a prior suit, and not to questions which might have been litigated.\\\" Dunaway v. W.H. Hopper & Associates, 422 So.2d 749, 751 (Miss.1982) (quoting Johnson v. Bagby, 252 Miss. 125, 171 So.2d 327 (Miss.1965)).\\nMayor & Bd. of Aldermen v. Homebuilders Ass'n of Miss., Inc., 932 So.2d 44, 59(\\u00b6 64) (Miss.2006).\\n\\u00b622. Our holding in Lange I did not stand for the proposition that the City could not breach the agreement at some time in the future. This could occur either by the City failing to build Whitaker Road as per the agreement, or, as identified in Lange I, \\\"by simply never beginning construction.\\\" Id. at (\\u00b6 23). At the time the Whitakers filed their most recent complaint with the Circuit Court of Panola County, the issue of whether Whitaker Road, as built, breached the agreement between the City and the Whitakers had yet to be decided. As such, our holding in Lange I did not preclude a future action based upon breach of contract.\\n\\u00b6 23. With the completion of Whitaker Road in January 2004, the Whitakers were free to bring their most recent action alleging breach of contract. However, given the standard of review we employ upon a review of the trial court's grant of summary judgment, we find that the parameters of Whitaker Road, as built, do not violate the agreement. That is, the City did not breach the agreement, but fulfilled its obligations to the Whitakers in building Whitaker Road. Therefore, while the Whit-akers' claim was not barred by the doctrine of collateral estoppel, we nonetheless affirm the trial court's grant of summary judgment as there was no breach of the agreement by the City. See issue III. This issue is without merit.\\nIII. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT THE WHITAKERS WERE NOT ENTITLED TO DAMAGES.\\n\\u00b6 24. Finding the issue of whether \\\"public road\\\" was ambiguous to be effectively irrelevant, the trial court continued and held there was no breach of the agreement stemming from the timing of the construction of Whitaker Road. Examining the record before us, we agree. The agreement provided for commencement of the road by 1998, or within two years of the agreement. Additionally, if building of the road was not commenced within two years, the agreement specified that it would be commenced within a reasonable time period. The issue of what is a reasonable time for performance is a question of law. Fortune Furniture Mfg., Inc. v. Pate's Electronic Co., 356 So.2d 1176, 1178 (Miss.1978). Whitaker Road was completed in January 2004, one year prior to the completion of the Civic Center to which it led, and four years after the Whitakers deeded over the property upon which it was built. Given the procedural history and activity of this case, the uncertainty of obligation that would certainly accompany that, and the timing of completion of the road in regard to a completed Civic Center and grant of the land, we find that Whitaker Road was completed within a reasonable time.\\n\\u00b6 25. Additionally, as identified in issue II, the record also affirmatively shows the City did not otherwise breach the Agreement in building Whitaker Road. The minutes of the Panola County Board of Supervisors from July 31, 1996, stated the relevant portion of the agreement for a temporary easement as such:\\nThe Grantee [County] has plans to build an expo center and is about to embark upon Phase I thereof. If the Grantee commences Phase 2 of such project within two (2) years of the date hereof, then the Grantors [the Whit-akers] agree to dedicate to the county such part of the above described 5.47 acres as may be needed for a public road. If Phase 2 is not commenced within two (2) years but the County has evidenced good faith to commence same within a reasonable period of time, then the Grantors agree to extend the aforesaid two (2) year period for a reasonable time.\\n(emphasis added). The City took over the project and agreed to honor the agreement between the County and the Whitakers, but refused to bind themselves to any other understandings between the County and the Whitakers. Minutes from subsequent meetings of the Board show that it was decided that Whitaker Road was to be a five-lane road and that, in regard to the arena, \\\"the main road will be the east most road agreed to in the original agreement between the county and the land owners.\\\"\\n\\u00b6 26. From the minutes referenced above it is clear that the City agreed to build a five-lane public road that would be the main, east-most road leading to the arena. Public is defined as \\\"[o]f, concerning, or affecting the community or the people[,]\\\" or \\\"[mjaintained for or used by the people or community.\\\" The American Heritage College Dictionary, 1106 (3d ed.1993). Whitaker Road satisfies all these requirements. It is a five-lane \\\"public road\\\" that is the main, east-most road leading to the arena. Under the facts before us, we find the City did not breach the agreement.\\n\\u00b6 27. \\\"When a plaintiff shows breach of the contract, damages may also be shown.\\\" Eastline Corp. v. Marion Apartments, Ltd., 524 So.2d 582, 585 (Miss.1988). As the Whitakers have failed to show the City breached the agreement, the issue of damages is moot. Therefore, this issue is without merit.\\n\\u00b6 28. THE JUDGMENT OF THE CIRCUIT COURT OF PANOLA COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.\\nKING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR.\"}" \ No newline at end of file diff --git a/miss/8316812.json b/miss/8316812.json new file mode 100644 index 0000000000000000000000000000000000000000..419c461aa4a1a5d4c3df5ad7c6694731f77f459c --- /dev/null +++ b/miss/8316812.json @@ -0,0 +1 @@ +"{\"id\": \"8316812\", \"name\": \"David Ray JONES, Appellant v. STATE of Mississippi, Appellee\", \"name_abbreviation\": \"Jones v. State\", \"decision_date\": \"2007-06-19\", \"docket_number\": \"No. 2006-KM-00844-COA\", \"first_page\": \"840\", \"last_page\": \"844\", \"citations\": \"958 So. 2d 840\", \"volume\": \"958\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T20:57:03.942608+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.\", \"parties\": \"David Ray JONES, Appellant v. STATE of Mississippi, Appellee.\", \"head_matter\": \"David Ray JONES, Appellant v. STATE of Mississippi, Appellee.\\nNo. 2006-KM-00844-COA.\\nCourt of Appeals of Mississippi.\\nJune 19, 2007.\\nJames B. Everett, Decatur, attorney for appellant.\\nOffice of the Attorney General by Deirdre McCrory, attorney for appellee.\\nBefore MYERS, P.J., CHANDLER and GRIFFIS, JJ.\", \"word_count\": \"1574\", \"char_count\": \"9476\", \"text\": \"MYERS, P.J.,\\nfor the Court.\\n\\u00b6 1. David Ray Jones appeals the judgment of the Newton County Circuit Court affirming his conviction in the Newton County Justice Court for driving under the influence of intoxicating liquor in violation of Mississippi Code Annotated section 63-11 \\u2014 30(l)(a) (Rev.2004), careless driving in violation of Mississippi Code Annotated section 63-3-1213 (Rev.2004), and driving without a seatbelt under Mississippi Code Annotated section 63-2-1 (Rev.2004). Because this was Jones' second DUI conviction occurring within five years, he was sentenced under Mississippi Code Annotated section 63-ll-30(2)(b) (Rev.2004) to serve one year in the Newton County jail and to pay a $1,500 fine. Jones was also fined $121 for careless driving and $35 for driving without a seatbelt. On appeal, Jones asserts that the judgment was against the overwhelming weight of the evidence due to the fact that the circuit court considered as substantive evidence of guilt (1) Jones' flight from the traffic stop, (2) statements made by the city prosecutor during his cross-examination and the cross-examination of a defense witness, and (3) impeachment testimony. Finding the issues raised by Jones to be procedurally barred and finding that the judgment is supported by substantial evidence, we affirm Jones' convictions for second offense DUI, careless driving, and driving without a seatbelt.\\nSTATEMENT OF THE FACTS\\n\\u00b6 2. On the evening of November 24, 2006, Mississippi Highway Patrolman Kevin Bently was patrolling a section of Interstate 20, located just east of Newton. At approximately 8:30 p.m., Bently observed a vehicle traveling west at an unusually slow rate of speed. Bently pulled out from his position on the median onto the interstate and followed the vehicle. Bently immediately noticed that the vehicle he followed was straddling the solid white line separating the 'driving lane from the emergency lane, traveling at a speed between twenty-five and thirty miles per hour. The maximum speed limit on that stretch of interstate is seventy miles per hour and the minimum is forty miles per hour. After observing the vehicle for a few moments, Bently proceeded to perform a traffic stop. However, the vehicle did not immediately pull over for another quarter mile before finally stopping near the Shiloh overpass.\\n\\u00b6 3. At trial, Bently testified once that as he exited his patrol car, the driver, later identified as David Ray Jones, also exited his vehicle. Bently testified that as Jones exited his vehicle, he observed him sway against his car and steady himself with his hand. Bently also noticed that Jones had not been wearing a seatbelt and that he was talking on a cell phone. Bently approached Jones and asked why Jones had continued driving for more than a quarter mile after Bently turned on his lights and siren. Jones replied, and later testified, that he did not see the lights or hear the siren because he was talking on his cell phone. Jones further explained to Bently, and later testified, that he was running out of gas and was attempting to call a friend to bring gas to him. Bently then asked Jones for his driver license, which Jones was unable to produce because he failed to renew his license after it was suspended pursuant to his first DUI conviction on October 3, 2002. However, Jones did provide Bently with his name, date of birth, and Social Security number. Jones continued to talk on his cell phone while providing this information to Bently, despite being repeatedly told by Bently that he needed Jones' full attention. Bently further testified that as he spoke with Jones he detected the smell of an \\\"intoxicating beverage\\\" coming from Jones' clothing or breath. Bently testified, after being designated by the circuit court as an expert in determining a person's level of intoxication, that it was his opinion that Jones was intoxicated at the time he was stopped.\\n\\u00b6 4. While Bently was questioning Jones, Jones repeatedly indicated that he needed to go to the bathroom. Bently told Jones to step to the shoulder of the road and relieve himself of the need. Jones stepped toward the shoulder of the road, and according to Bently's testimony, Jones then broke and ran toward the overpass. He did not return. Bently testified that he did not give chase because there was a minor, Jones' thirteen-year-old nephew, in the passenger's seat of Jones' vehicle and he felt that it would not be in the child's best interest to leave him unsupervised on the side of the interstate. Jones testified that he did not run, but walked over to the overpass, where a friend, Alvin Willis, was to deliver the needed gas. Jones further testified that Bently never told him to stop or that he could not leave. According to Jones, he waited at the overpass for his friend to arrive with the gas, and as he did, he observed a tow-truck loading up his car. Jones claims that he then decided not to return to the scene of the traffic stop because he feared being arrested for driving with a suspended license. He claims not to have ingested any alcoholic beverages on the day in question and that his \\\"flight\\\" had nothing to do with a fear of being arrested for DUI. Jones' nephew also testified that Jones had not been drinking on the day in question and when questioned about his prior inconsistent statements to Bently, denied ever saying that Jones had been drinking. Bently, who had already testified as the prosecution's witness, was then called as a rebuttal witness to impeach the nephew's credibili ty. Bently testified that while he and Jones' nephew waited on the side of the interstate for a tow truck to arrive, the nephew told him that Jones had been drinking earlier that day.\\n\\u00b6 5. The circuit court judge heard testimony from Bently, Jones, Jones' nephew, and Willis, and determined that the affir-mance or reversal of Jones' convictions hinged on the issue of credibility. The circuit judge then ruled from the bench that, under the totality of the circumstances and after weighing all the evidence, the testimony of Bently was simply more credible than the testimony offered by Jones, Jones' nephew, and Willis. He found the testimony that Jones had driven his car down the interstate more than a quarter of a mile while straddling the white line separating the driving lanes from the emergency lane at a speed below the minimum speed limit sufficient to find Jones guilty of careless driving. Further, he found Bently's testimony that Jones had not been wearing a seatbelt sufficient to support the seatbelt violation. Finally, he found Bently's opinion that Jones was intoxicated, the fact that Jones testified that he did not see the patrolman's lights nor hear his siren, the statement by Jones' nephew to Bently that Jones had been drinking, and Jones' flight as indicia pointing to guilt, and affirmed the DUI conviction.\\nDISCUSSION\\n\\u00b6 6. When determining whether a verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict. Herring v. State, 691 So.2d 948, 957 (Miss.1997). Reversal is warranted only when we are convinced that the circuit court has abused its discretion and that allowing the verdict to stand would sanction an unconscionable injustice. Id. Our review of the record makes clear that the circuit judge specifically asked the attorneys to provide the law concerning flight, and that Jones' attorney failed to do so. Further, Jones' counsel failed to raise any objection to the prosecutor's questions concerning statements made by Jones' nephew and Jones during the Newton County Justice Court trial. Jones' counsel also failed to raise any objection to Bently's impeachment testimony. Finally, Jones failed to raise any of the issues he complains of on appeal in his motion for a directed verdict or new trial. As a general rule, a litigant cannot raise issues for the first time on appeal because the trial judge had no opportunity to deal with the issue at the trial level. Crowder v. State, 850 So.2d 199, 200(\\u00b6 5) (Miss.Ct.App.2003).\\n\\u00b6 7. Our role as an appellate court is to determine whether the trial judge correctly ruled on an issue put before the court. Where the issue was not raised with the trial judge, there can be no resulting error to deal with at the appellate level. Id. Accordingly, the issues raised by Jones are procedurally barred. Furthermore, the facts of this case, when viewed in the light most favorable to the verdict, provide sufficient evidence to convict Jones of second offense DUI, careless driving, and driving without a seatbelt. We find that the verdict was not against the overwhelming weight of the evidence, and, thereby, affirm.\\n\\u00b6 8. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT OF CONVICTIONS OF DUI-SECOND OFFENSE, SEATBELT VIOLATION AND CARELESS DRIVING AND SENTENCES OF ONE YEAR IN THE NEWTON COUNTY JAIL AND A $1,500 FINE FOR DUI-SECOND OFFENSE, $35 FINE FOR SEATBELT VIOLATION AND $121 FINE FOR CARELESS DRIVING IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.\\nKING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.\"}" \ No newline at end of file diff --git a/miss/8411070.json b/miss/8411070.json new file mode 100644 index 0000000000000000000000000000000000000000..cf81f33a156186d7125f73c73c183a5f262ed2bf --- /dev/null +++ b/miss/8411070.json @@ -0,0 +1 @@ +"{\"id\": \"8411070\", \"name\": \"Benny W. COLVILLE, Appellant v. Renee P. DAVIDSON, Appellee\", \"name_abbreviation\": \"Colville v. Davidson\", \"decision_date\": \"2006-01-03\", \"docket_number\": \"No. 2004-CA-02246-COA\", \"first_page\": \"1028\", \"last_page\": \"1032\", \"citations\": \"934 So. 2d 1028\", \"volume\": \"934\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T01:56:55.676319+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MYERS, P.J., BARNES and ISHEE, JJ.\", \"parties\": \"Benny W. COLVILLE, Appellant v. Renee P. DAVIDSON, Appellee.\", \"head_matter\": \"Benny W. COLVILLE, Appellant v. Renee P. DAVIDSON, Appellee.\\nNo. 2004-CA-02246-COA.\\nCourt of Appeals of Mississippi.\\nJan. 3, 2006.\\nRehearing Denied April 11, 2006.\\nJohn W. Christopher, attorney for appellant.\\nDawn Davis Carson, Robert Lewis Moore, attorneys for appellee.\\nBefore MYERS, P.J., BARNES and ISHEE, JJ.\", \"word_count\": \"1780\", \"char_count\": \"10671\", \"text\": \"MYERS, P.J.,\\nfor the Court.\\n\\u00b6 1. This case comes from the Circuit Court of DeSoto County dealing with the damages resulting from a rear-end collision on November 3, 1999. There was no question as to liability; the only triable question was to the amount of damages. The jury returned a damages award of $1,500. Colville filed a motion for additur or new trial, which was denied by the trial court. From this denial, Colville appeals raising two issues:\\nI. THE VERDICT OF THE JURY WAS GROSSLY INADEQUATE AND WAS THE RESULT OF BIAS, PASSION AND PREJUDICE OF THE JURY.\\nII. THE LOWER COURT COMMITTED ERROR AND ABUSED ITS DISCRETION IN DENYING COL-VILLE'S MOTION FOR AN ADDI-TUR OR IN THE ALTERNATIVE FOR A NEW TRIAL ON DAMAGES.\\n\\u00b6 2. Finding no error, we affirm.\\nSTATEMENT OF FACTS\\n\\u00b6 3. On the morning of November 3, 1999, while traveling to work in his Chevrolet pickup, Benny W. Colville was accidentally struck from behind by Renee P. Davidson, resulting in a rear end collision. From the time of the accident until June 2002, Colville worked as a glazier which required heavy lifting and manual labor.\\n\\u00b6 4. Following the accident, Colville was transported by ambulance to DeSoto Baptist Medical Center when he complained of pain between his shoulder blades, down his back and in his neck. At the hospital emergency room Colville was examined by emergency room physicians, given muscle relaxants and pain medication, and released within one and one-half to two hours following the accident. Colville did not attend work the day of the accident, but did attend the following day.\\n\\u00b6 5. Colville did not seek further medical treatment until December 27, 1999, when he saw Dr. Walt Carnahan for treatment of a head cold. While undergoing examination Colville mentioned to Dr. Carnahan that he had been involved in an auto accident in November. Dr. Carnahan preformed an examination to evaluate Col-ville's neck and found his neck to be supple and with full range of motion. Dr. Carna^-han did not prescribe any medications, but did place Colville on a spinalator which applied heat and gentle massage to the spine and muscles of the neck and back. Dr. Carnahan also prescribed physical therapy, but Colville was non-compliant. This treatment continued for a period of approximately two years. During this time period Colville was also treated for two work-related injuries, a pulled groin muscle and an inguinal hernia.\\n\\u00b6 6. On September 28, 2001, Colville was referred to Dr. Ashley Park at the Campbell Orthopedic Clinic due to his continued complaint of shoulder blade pain. Dr. Park found no neurological injury. Dr. Park ordered an MRI which came back normal. Dr. Park prescribed anti-inflammatory medications, muscle relaxants, physical therapy and an epidural injection into the spine in an effort to relieve Col-ville's pain. Dr. Park treated Colville from September 28, 2001, until May 2002. Dr. Park found that Colville's range of shoulder motion decreased and signs of shoulder impingement increased between September and May. A final diagnosis was that Colville had a rotator cuff injury. Dr. Park testified that Colville's work could be the cause of his pain. In June of 2002 Colville was given a new job that no longer required manual labor and his pain ceased.\\n\\u00b6 7. A trial was held in the DeSoto County Circuit Court where Davidson admitted \\\"some act of simple negligence\\\" and the only issue before the jury was the determination of damages. Colville testified at trial while Drs. Carnahan and Park testified by video deposition. Colville also introduced evidence that over the approximately two and one-half years he had paid $14,082.47 in medical expenses and testified that he had lost $2,674.35 in wages. Davidson did not put on any witnesses. Following jury deliberations a verdict was returned awarding damages in the amount of $1,500. Colville filed a motion for an additur or, in the alternative, a new trial on damages that was denied by the trial court. This appeal followed, raising the following two issues that will be determined together as they intertwined.\\nI. THE VERDICT OF THE JURY WAS GROSSLY INADEQUATE AND WAS THE RESULT OF BIAS, PASSION AND PREJUDICE OF THE JURY.\\nII. THE LOWER COURT COMMITTED ERROR AND ABUSED ITS DISCRETION IN DENYING COL-VILLE'S MOTION FOR AN ADDI-TUR OR IN THE ALTERNATIVE FOR A NEW TRIAL ON DAMAGES.\\nSTANDARD OF REVIEW\\n\\u00b6 8. When reviewing the trial court's decision to deny a motion for an additur, we are limited to an abuse of discretion standard. Burge v. Spiers, 856 So.2d 577, 579(\\u00b6 6) (Miss.Ct.App.2003). The burden of proving damages is on the party who seeks the additur. Gaines v. K-Mart Corp., 860 So.2d 1214, 1220 (\\u00b621) (Miss.2003). The evidence must be reviewed in a light most favorable t\\u00f3 the party against the additur and must give that party the benefit of all favorable inferences drawn therefrom. McClatchy Planting Co. v. Harris, 807 So.2d 1266, 1270 (\\u00b6 16) (Miss.Ct.App.2001). An additur should be granted with great caution because it signifies \\\"a judicial incursion into the traditional habitat of the jury.\\\" Burge, 856 So.2d at 579-80(\\u00b6 6) (citing Gibbs v. Banks, 527 So.2d 658, 659 (Miss.1988)). A jury award will not be set aside unless \\\"so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.\\\" Rodgers v. Pascagoula Pub. Sch. Dist. 611 So.2d 942, 945 (Miss. 1992).\\nDISCUSSION\\n\\u00b6 9. Colville argues that- the trial court abused its discretion by denying his post trial motion for additur based on the jury's bias, passion and prejudice and the damages were inadequate due to the overwhelming weight of the evidence. The trial judge is given the authority to grant an additur by Mississippi Code Annotated \\u00a7 11-1-55 (Rev.2002), which provides:\\nThe supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an addi-tur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence, .\\n\\u00b6 10. In the case at bar, Davidson admits that she was negligent in hitting Col-ville in the rear end collision. The issue at trial was the amount of damages caused by Davidson to Colville. The jury was given the opportunity to hear the testimony of Colville, Dr. Carnahan and Dr. Park to determine the injuries sustained by Col-ville in the collision and. award damages to compensate him for those damages.\\n\\u00b6 11. The testimony at trial was that Colville was examined following the accident and was not found to have any skeletal injuries. He was given pain medication, muscle relaxants and missed work the day of the accident. He returned to work the following day and did not complain of any further pain until visiting Dr. Carnahan for a cold two months following the accident. Dr. Carnahan testified that he treated Colville with manipulative therapy for over two- years and did not prescribe any medications other than over- the-eounter pain medicine. Additionally, Dr. Carnahan prescribed physical therapy that Colville was non-compliant with. Further testimony indicated that Colville suffered two work-related injuries following the accident, a groin pull and a hernia.\\n\\u00b6 12. Dr. Carnahan referred Colville to Dr. Park after two years. Dr. Park testified that there was no neurological or skeletal damage and treated Colville with anti-inflammatory, pain and muscle relaxant medications. Dr. Park testified that the pain experienced by Colville could be either related to the accident or to Col-ville's work. The jury also heard testimony from Dr. Park that during the period in which he treated Colville it was discovered that Colville had sustained a rotator cuff injury that could have been causing the shoulder pain. Dr. Park testified that the injury could have been caused by the accident, but is was unlikely.\\n\\u00b6 13. The jury also heard Colville testify that in June of 2002 he changed positions in his company from manual labor to a desk job as an estimator. After the job change Colville testified that his pain began to stop.\\n\\u00b6 14. It is the jury who determines the weight of the testimony and the credibility of the witnesses at trial and it is the primary province of the jury to determine the amount of damages to award. Burge, 856 So.2d at 580(\\u00b6 9). The jury was given testimony that the injuries experienced by Colville were the result of the rear-end collision and Davidson elicited testimony from the witnesses that the injuries could be work related and that Colville was non-compliant with a physical therapy treatment prescribed. After hearing this testimony the jury awarded Colville $1500. The day of the accident Colville incurred medical expenses in the amount of $860.43 which consisted of $212 for the ambulance, $558.43 for the emergency room and $90 for radiological services. The difference of $640.57 can be attributed to pain and suffering.\\n\\u00b6 15. In evaluating the denial of the motion for additur, we determine if the trial court abused its discretion. Burge, 856 So.2d at 579. In his order denying the motion for additur or in the alterative a new trial the judge stated:\\nThe Court, having reviewed the Motion, Memoranda, Response and Reply, having heard the statement and argument of counsel, and having conducted independent research into the law, finds that there was sufficient evidence to support the jury's verdict and that the Motion is otherwise not well taken....\\n\\u00b6 16. This evidences that the trial court took the time to evaluate the law, the evidence presented and the jury's verdict in the determination of the denial. There was no abuse of discretion.\\nCONCLUSION\\n\\u00b6 17. Finding that there is no evidence of bias, prejudice or passion in the jury's verdict, that there was evidence presented to support the award of $1500, and that the trial court did not abuse its discretion, we affirm the ruling by the Circuit Court of DeSoto County.\\n\\u00b6 18. THE JUDGEMENT OF THE DESOTO COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.\\nKING, C.J, LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ., CONCUR.\"}" \ No newline at end of file diff --git a/miss/8470863.json b/miss/8470863.json new file mode 100644 index 0000000000000000000000000000000000000000..98fea9694ee6c12d56f0151522b4b1b32b654298 --- /dev/null +++ b/miss/8470863.json @@ -0,0 +1 @@ +"{\"id\": \"8470863\", \"name\": \"Trevor Vashon CARLISLE, Appellant v. STATE of Mississippi, Appellee\", \"name_abbreviation\": \"Carlisle v. State\", \"decision_date\": \"2006-06-20\", \"docket_number\": \"No. 2004-KA-01764-COA\", \"first_page\": \"415\", \"last_page\": \"424\", \"citations\": \"936 So. 2d 415\", \"volume\": \"936\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T17:28:39.185587+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before MYERS, P.J., SOUTHWICK, IRVING and BARNES, JJ.\", \"parties\": \"Trevor Vashon CARLISLE, Appellant v. STATE of Mississippi, Appellee.\", \"head_matter\": \"Trevor Vashon CARLISLE, Appellant v. STATE of Mississippi, Appellee.\\nNo. 2004-KA-01764-COA.\\nCourt of Appeals of Mississippi.\\nJune 20, 2006.\\nLeslie D. Roussell, Laurel, attorney for appellant.\\nOffice of the Attorney General by W. Daniel Hincheliff, attorney for appellee.\\nBefore MYERS, P.J., SOUTHWICK, IRVING and BARNES, JJ.\", \"word_count\": \"4070\", \"char_count\": \"24807\", \"text\": \"IRVING, J.,\\nfor the Court.\\n\\u00b6 1. A Wayne County jury convicted Trevor Carlisle of possession of over one ounce of marihuana with intent to sell, and the Wayne County Circuit Court sentenced him to ten years in the custody of the Mississippi Department of Corrections and ordered him to pay a $10,000 fine. The court also ordered that this sentence be served consecutively with a prior sentence. Aggrieved, Carlisle appeals and alleges the following errors, which list verbatim:\\n1.THE COURT COMMITTED REVERSIBLE ERROR BY FAILING TO SUPPRESS THE EVIDENCE INTRODUCED IN THIS CASE AS THERE WAS NO PROBABLE CAUSE TO STOP MR. CARLISLE'S VEHICLE BY LAW ENFORCEMENT, AND HIS DETENTION AND THE SEARCH OF HIS VEHICLE AMOUNTED TO A VIOLATION OF HIS RIGHTS TO BE FREE OF UNREASONABLE SEARCH AND SEIZURE, THEREBY MAKING ALL OF THE EVIDENCE OBTAINED BY LAW ENFORCEMENT IN THIS CASE INADMISSIBLE.\\n2. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING MICHAEL TOLBERT TO TESTIFY TO THE JURY CONCERNING EVIDENCE DISCOVERED BY OTHER OFFICERS. THIS ALLOWED THE INTRODUCTION OF EVIDENCE EVEN THOUGH THERE WAS NO PROPER CHAIN OF CUSTODY ESTABLISHED BY THE STATE AT TRIAL.\\n3. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY LETTING WITNESSES TESTIFY REGARDING PRIOR BAD ACTS OF THE DEFENDANT THEREBY PREJUDICING THE JURY AND VIOLATING HIS RIGHT TO A FAIR TRIAL.\\n4. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO SWEAR IN THE PETIT JURY THAT SAT AS FACT FINDERS IN THIS CASE.\\n5. THE TRIAL JUDGE'S MOVING VENIRE MEMBERS TO THE END OF THE JURY LIST VIOLATED THE UNITED STATES AND MISSISSIPPI CONSTITUTIONS AND MISSISSIPPI LAW.\\n6. THE TRIAL COURT ERRED IN ORDERING CARLISLE TO SERVE HIS TWO SENTENCES CONSECUTIVELY DUE TO A MISTAKEN BELIEF THAT EXISTING LAW REQUIRED SUCH A SENTENCE.\\n7. WHETHER THE ABOVE DESCRIBED ERRORS WHEN VIEWED CUMULATIVELY RISE TO THE LEVEL OF REVERSIBLE ERROR. \\u00b6 2. Finding no error, we affirm.\\nFACTS\\n\\u00b6 3. Officer Michael Tolbert, commander of the South Mississippi Narcotics Task Force, received a phone call from Deputy Kevin Stevens of the Wayne County Sheriffs Department indicating that Stevens had arrested Stephanie Brown for burglary and that she had some information concerning the sale of illegal drugs. In response, Tolbert interviewed Brown at the sheriffs department, and she informed him that she had been purchasing marihuana from a man she knew only as \\\"Trouble.\\\" After receiving this information, Tolbert began conferring with other confidential informants and \\\"people on the street\\\" to determine the credibility of the information and to ascertain the identity of \\\"Trouble.\\\" Based on his investigation, Tolbert uncovered that \\\"Trouble\\\" could possibly be Trevor Carlisle.\\n\\u00b6 4. Shortly thereafter, Tolbert contacted Brown and requested that she call \\\"Trouble\\\" to arrange a sale for two ounces of marihuana. Brown placed a phone call to the man she knew as \\\"Trouble\\\" and requested that he meet her at an abandoned bridge in Wayne County. Brown then informed the officers that \\\"Trouble\\\" had agreed to meet her at the arranged location within ten to fifteen minutes and gave them a physical description of the vehicle that \\\"Trouble\\\" would be driving.\\n\\u00b6 5. Tolbert had officers placed at various locations surrounding the area near the bridge to await \\\"Trouble's\\\" arrival. Mike Mazingo, a Wayne County Sheriffs Department deputy, was hiding in the woods near the abandoned bridge when he notified Tolbert that he had spotted a vehicle matching the description of \\\"Trouble's\\\" car in the area. Tolbert contacted Stevens, who was stationed approximately one-eighth of a mile from the abandoned bridge, and requested that Stevens pull the car over. When Stevens stopped the vehicle, he recognized the driver as Trevor Carlisle. After the stop, other officers converged on the scene.\\nf 6. According to Tolbert's testimony, he arrived at the scene one minute after the car had been stopped by Stevens. Tolbert testified that when he arrived, Marvin Overstreet, an agent with the South Mississippi Narcotics Task Force, was already on the scene and had requested permission to search Carlisle's vehicle. Carlisle declined to allow the officers to search his vehicle. After learning that consent to search had been denied, Tolbert testified that he went to his house, retrieved his canine drug dog, and had the dog begin a search of the outside of Carlisle's vehicle. Tolbert further testified that the dog gave him \\\"an alert at the driver side front and passenger door seam.\\\" Based on this alert, the officers began searching the vehicle. The search revealed 193.1 grams of marihuana concealed in various containers throughout the vehicle. As a result, Car-lisle was arrested and charged with pos session of 193.1 grams of marihuana with intent to sell.\\nANALYSIS AND DISCUSSION OF THE ISSUES\\n1. Suppression of the Evidence\\n\\u00b6 7. Alleging a lack of probable cause, Carlisle moved to suppress the marihuana taken from his vehicle. Carlisle argues that the lack of probable cause makes the stop and subsequent search of his vehicle a \\\"violation of both the Fourth Amendment of the United States Constitution and Section 23 of the Mississippi Constitution.\\\"\\n\\u00b6 8. A suppression hearing was held in which the State put on evidence concerning the basis for the stop and search of Carlisle's vehicle. The State produced the testimony of various officers pertaining to the events and circumstances that led to the stop and search. After hearing the facts of the case, the trial court overruled Carlisle's motion to suppress, stating that:\\nThe law is that these officers had probable cause and reasonable grounds to believe that a felony had been committed and that the defendant was probably guilty of that felony. They certainly had a right to stop the defendant and take him into custody. And if that's the case, they have a right to conduct a search of his person and his vehicle, as I understand the law.\\n\\u00b6 9. The Fourth Amendment of the United States Constitution and Article 3, Section 23 of the Mississippi Constitution expressly protect a person's right to be secure from unreasonable searches and seizures. Floyd v. City of Crystal Springs, 749 So.2d 110, 114(\\u00b6 14) (Miss.1999). \\\"The prohibition against unreasonable searches and seizures 'applies to seizures of the person, including brief investigatory stops such as the stop of a vehicle.' \\\" Id. (citing U.S. v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). \\\"The [Mississippi Supreme Court] has recognized that 'given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest,' that is, on less information than is constitutionally required for probable cause to arrest.\\\" Id. at (\\u00b6 16) (citing Singletary v. State, 318 So.2d 873, 876 (Miss.1975)).\\nSuch an investigative stop of a suspect may be made so long as an officer has \\\"a reasonable suspicion, grounded in specific and articulable facts, that the person they encounter was involved in or is wanted in connection with a felony\\\" or so long as the officers have \\\"some objective manifestation that the person stopped is, or is about to be engaged in criminal activity.\\\"\\nId. (citations omitted).\\n\\u00b6 10. Here, not only do we find that the officers had reasonable suspicion to perform an investigative stop of Car-lisle's vehicle, but we also find that they had probable cause to stop and search Carlisle's vehicle. As support for our finding, we reiterate the facts which we find were sufficient to establish probable cause. The officers received information from Brown that she had been purchasing marihuana from an individual she knew as \\\"Trouble.\\\" Further investigation by the officers revealed that \\\"Trouble\\\" was likely Carlisle. The officers then requested that Brown make a phone call to \\\"Trouble\\\" to arrange a purchase of marihuana. The sale was arranged for a specific location and at a specific time. Brown informed the officers about the vehicle that \\\"Trouble\\\" would be driving, describing it as a \\\"gray four-door car with a different color driver's side fender and heavily tinted windows.\\\" The location, an abandoned bridge, was staked out by officers who noticed a vehicle matching the description of \\\"Trouble's\\\" car approach the area. As Carlisle's vehicle, which matched exactly the description of \\\"Trouble's\\\" car, approached the abandoned bridge, it was stopped by an officer who recognized Car-lisle and knew that he was on probation for a prior conviction. At this time, the officers had sufficient probable cause to believe that Carlisle was in possession of marihuana. Therefore, based on the above facts, we find that the officers had probable cause to stop Carlisle, place him under arrest, and initiate a lawful search of his vehicle.\\n\\u00b6 11. Even though the officers had probable cause when they initially stopped Carlisle's vehicle, the officers further strengthened their case for probable cause by bringing in a certified drug sniffing dog after Carlisle refused to give his consent to the search. Only after the dog gave an alert did the officers initiate a search of Carlisle's vehicle, which revealed 193.1 grams of marihuana.\\n\\u00b6 12. In short, we find that the officers had the requisite probable cause to enable them to stop and search Carlisle's vehicle. Therefore, we affirm the trial court's denial of Carlisle's motion to suppress the marihuana discovered in his vehicle.\\n2. Chain of Custody\\n\\u00b6 13. Under this assignment of error, Carlisle argues that the trial court erred in allowing Officer Tolbert to testify about marihuana that other officers discovered in Carlisle's vehicle. According to Carlisle, in order for admissible evidence to be reliable, a valid chain of custody has to be established. Carlisle argues that in order to establish a valid chain of custody and to prove that evidence has not been tampered with, \\\"the person who found that evidence ought to have to testify as to the location it was found, the circumstances under which it was found, and how it was situated.\\\" Carlisle further argues that \\\"to allow another officer to testify as to what other officers found, violates due process, a person's right to confront a witness, as well as evidence rules regarding hearsay.\\\"\\n\\u00b6 14. \\\"The test for chain of custody is to ascertain whether there is any indication of tampering or substitution of evidence.\\\" Wells v. State, 604 So.2d 271, 277 (Miss.1992) (citing Gibson v. State, 503 So.2d 230, 234 (Miss.1987)). There is no requirement for the State \\\"to produce every person who handled the object, nor to account for every moment of every day.\\\" Butler v. State, 592 So.2d 983, 985 (Miss. 1991). The burden is on Carlisle to prove that tampering or substitution of the evidence took place. Williams v. State, 794 So.2d 181, 185(\\u00b6 10) (Miss.2001) (citing Hemphill v. State, 566 So.2d 207, 208 (Miss.1990)). When reviewing issues regarding chain of custody, we will reverse only if the trial court has abused its discretion in admitting the evidence. Id. at 185(\\u00b6 12).\\n\\u00b6 15. Here, Carlisle has offered no proof of either a break in the chain of custody or any tampering with the evidence at issue. At trial, Carlisle merely objected to the chain of custody because some of the marihuana was taken out of the bag that it was discovered in. The record reveals that the reason that the marihuana was taken out of the bag was so that it could be submitted to the Mississippi Crime Laboratory for testing. Car-lisle's trial counsel never explained or offered any rationale to the trial court about how such a removal of the marihuana amounts to tampering. Moreover, Car-lisle's brief fails to point to any evidence or articulate any plausible reason for any possible tampering.\\n\\u00b6 16. Furthermore, Tolbert testified that the marihuana discovered by the other officers was uncovered in his presence and immediately turned over to him. Tol-bert further testified that all marihuana discovered in Carlisle's vehicle was taken back to the task force office, weighed by him, packaged and sealed by him, and taken to the crime lab by either himself or another agent.\\n\\u00b6 17. In short, we find that there was sufficient evidence presented for the trial court to find that the chain of custody had been properly maintained. The court did not abuse its discretion in admitting the evidence. This issue is without merit.\\nS. Testimony Pertaining to Carlisle's Prior Bad Acts\\n\\u00b6 18. Carlisle argues that the trial court erred in allowing the prosecution to question Brown about her previous drug transactions with him, thereby eliciting improper prior bad acts testimony. Specifically, Carlisle argues that the trial court improperly allowed the prosecution to question Brown about how many times she had previously purchased drugs from him and about how much marihuana her cousin had previously attempted to purchase from him.\\n\\u00b6 19. We note, as Carlisle admits in his brief, that no objection was made at trial to Brown testifying that she had previously purchased marihuana from Carlisle about twenty times. Therefore, this issue is procedurally barred because it was not properly raised in the trial court. The Mississippi Supreme Court has held that \\\"[a] trial judge will not be found in error on a matter not presented to him for decision.\\\" Smith v. State, 729 So.2d 1191, 1205-06(\\u00b6 63) (Miss.1998).\\n\\u00b6 20. Carlisle did, however, object when Brown testified about the reason that she gave Carlisle for her sudden increase in the amount of marihuana she wanted to purchase. A review of the record reveals that Carlisle's objection in the proceedings below articulates no discerna-ble relation to prior bad acts, which is the basis for this issue on appeal. Instead, Carlisle's objection sounds like a hearsay objection as he objected \\\"to what her [Brown's] cousin said.\\\" Our supreme court has held that \\\"[ojbjections to the admissibility of evidence must specifically state the grounds, otherwise, the objection is waived.\\\" Oates v. State, 421 So.2d 1025, 1030 (Miss.1982) (citations omitted). Furthermore, \\\"an objection on one or more specific grounds constitutes a waiver on all other grounds.\\\" Morgan v. State, 741 So.2d 246, 253(\\u00b615) (Miss.1999). Since Carlisle failed to specifically state the grounds for his objection and made what was more akin to a hearsay objection on this point in the proceedings below, he has waived his right to complain of any error on appeal. This issue is procedurally barred.\\nA Swearing in the Jury\\n\\u00b6 21. Carlisle argues that the trial court committed reversible error-by failing to administer the petit jury oath to the jury. Carlisle contends that the trial court's failure to swear in the jury resulted in a violation of his fundamental right to a fair trial.\\n\\u00b6 22. The State counters that Carlisle failed to make a contemporaneous objection at trial and did not raise the issue in his motion for a new trial. The State also points out that Carlisle failed to make an argument pertaining to the plain error doctrine in his brief to this court. Accordingly, the State maintains that Car-lisle's argument is procedurally barred. The State also argues that the trial judge is presumed to have sworn in the jury because the record reveals that the court made several references to an oath administered to the jury.\\n\\u00b6 23. We agree with the State that Car-lisle is procedurally barred from raising this issue on appeal because he failed to make a contemporaneous objection at trial, did not raise this issue in his motion for a new trial, or make an argument to this court under the plain error doctrine. Notwithstanding the procedural bar, we note that this issue is without merit because the Mississippi Supreme Court has held that it is not reversible error where a record does not specifically reflect that a jury was sworn because \\\"the presumption is that the trial judge properly performed his duties.\\\" Bell v. State, 360 So.2d 1206, 1215 (Miss.1978).\\n\\u00b624. We find that Carlisle has failed to present sufficient evidence to overcome the presumption that the trial judge administered the oath to the jury. Although the record does not explicitly reflect a reading of the oath, the record does reveal references made by the court to the oath. In instructions that the court gave to the jury, the judge made the following statement: \\\"When you [members of the jury] took your places in the jury box, you made an oath that you would follow and apply these rules of law to the evidence in reaching your verdict in this case.\\\" Furthermore, the court's judgment of conviction stated that \\\"a trial before a jury consisting of Edwin Blue and eleven other jurors, having been duly sworn.... \\\" From these statements, it can be presumed that the jury was sworn. Furthermore, the record does not clearly contradict these statements indicating that an oath was administered to the jury. Therefore, we find that Carlisle has failed to overcome the rebuttable presumption that the trial judge properly performed his duties. This issue is without merit.\\n5. Movement of Venire Members to the End of the Jury List\\n\\u00b6 25. In this assignment of error, Car-lisle argues that the trial court erred in moving fourteen potential jurors to the end of the venire list \\\"so the likelihood of them being selected in this trial would be substantially reduced.\\\" According to Car-lisle, \\\"the actions of the trial judge [were] a radical departure from the jury selection procedures outlined by Mississippi statute and violative of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, article 3, sections 14 and 26 of the Mississippi Constitution, and Mississippi law.\\\" In deciding to move the fourteen potential jurors to the end of the venire list, the trial judge stated the following:\\nSo any appellate court can understand what is going on here, we had a trial Monday and Tuesday and 14 jurors served for two days into the night or late hours Tuesday, and I instructed the bailiff \\u2014 excuse me \\u2014 the clerk to take those 14 and put them on the end of the list so that the likelihood of them being selected in this trial would be substantially reduced.\\n\\u00b6 26. The record reveals that Carlisle made no objection to the court's movement of the potential jurors to the end of the venire list during his trial or in his motion for a new trial. We also note that Carlisle made no motion to quash the venire. The Mississippi Supreme Court has held \\\"that a party who fails to object to the jury's composition before it is empaneled waives any right to complain thereafter.\\\" Page v. Siemens Energy and Automation, Inc., 728 So.2d 1075, 1082(\\u00b6 27) (Miss.1998) (citing Hunter v. State, 684 So.2d 625, 631 (Miss.1996)). Because Carlisle failed to raise any problems or concerns that he may have had with the jury's composition before it was empaneled, we find that he has waived his right to complain about this issue on appeal. Therefore, this issue is procedurally barred.\\n6. Carlisle's Consecutive Sentences\\n\\u00b6 27. Under this assignment of error, Carlisle claims that the trial judge erred in ordering him to serve his two sentences consecutively. Carlisle argues that the trial judge had the discretion to order the \\\"sentences to run either concurrently with or consecutive to each other or to any other sentence or sentences previously imposed upon the defendant.\\\" Car-lisle maintains \\\"that the trial judge was under the mistaken belief that the sentences under law must run consecutively.\\\"\\n\\u00b6 28. The circuit court's sentencing order specifically stated that \\\"[t]his defendant [Carlisle] is a prior convicted felon who has served prison time. This sentence [ten years and a $10,000 fine] is consecutive to the sentence in 01-12G-K.\\\" As Carlisle points out in his brief, he was on five years probation for a previous drug-related offense when he was arrested for marihuana possession with intent to sell, resulting in revocation of his probation. Therefore, the court's discretion in sentencing Carlisle was controlled by Mississippi Code Annotated section 99-19-21(2) (Rev.2000), which states:\\nWhen a person is sentenced to imprisonment for a felony committed while the person was on parole, probation, earned-released supervision, post-release supervision or suspended sentence, the imprisonment shall commence at the termination of the imprisonment for the preceding conviction. The term of imprisonment for a felony committed during parole, probation, earned-release supervision, post-release supervision or suspended sentence shall not run concurrently with any preceding term of imprisonment. If the person is not imprisoned in a penitentiary for the preceding conviction, he shall be placed immediately in the custody of the Department of Corrections to serve the term of imprisonment for the felony committed while on parole, probation, earned-release supervision, post-release supervision or suspended sentence.\\n(emphasis added).\\n\\u00b6 29. Pursuant to section 99-19-21(2), the court was prohibited from allowing Carlisle to serve his new sentence concurrently with his prior sentence. By statute, Carlisle is required to serve the present sentence consecutive to his probation revo cation sentence. Therefore, this issue is without merit.\\n7. Cumulative Error\\n\\u00b6 30. In his final assignment of error, Carlisle contends that cumulative errors denied him his constitutional right to a fair trial.\\n\\u00b6 31. At the outset, we note that \\\"the Constitution does not guarantee a perfect trial, but it does entitle a defendant in a criminal case to a fair trial.\\\" Hammons v. State, 918 So.2d 62, 65(\\u00b6 10) (Miss. 2005) (citing Clark v. State, 891 So.2d 136, 140-141(\\u00b6 19) (Miss.2004)). Therefore, Car-lisle's trial did not have to be perfect in order to be valid. However, the Mississippi Supreme Court has held that \\\"individual errors, not reversible in themselves, may combine with other errors to make up reversible error.\\\" Caston v. State, 823 So.2d 473, 509 (\\u00b6 134) (Miss.2002). The Court further noted that:\\n[t]he question that must be asked in these instances is whether the defendant was deprived of a 'fundamentally fair and impartial trial' as a result of the cumulative effect of all errors at trial. If there is 'no reversible error in any part, so there is no reversible error to the whole.'\\nId. (citations omitted).\\n\\u00b6 32. After reviewing the issues presented on appeal and the record, we find no reversible error in Carlisle's trial. \\\"Based on the finding of no error by the trial court on each individual issue, there is no cumulative effect for all the alleged errors.\\\" Id. at (\\u00b6 135).\\n\\u00b6 33. THE JUDGMENT OF THE CIRCUIT COURT OF WAYNE COUNTY OF CONVICTION OF POSSESSION OF OVER ONE OUNCE OF MARIHUANA (193.1 GRAMS) WITH INTENT TO SELL AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF $10,000 IS AFFIRMED. THIS SENTENCE IS CONSECUTIVE TO THE SENTENCE IN 01-12G-K. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WAYNE COUNTY.\\nKING, C.J., LEE, AND MYERS, P.JJ., SOUTHWICK, CHANDLER, GRIFFIS, BARNES AND ISHEE, JJ\\\" CONCUR. ROBERTS, J., NOT PARTICIPATING.\\n. More specifically, Wayne County Sheriffs Department Deputies Kevin Stevens, Mike Mazingo, and Stephen Wally and South Mississippi Narcotics Task Force Agent, Marvin Overstreet, were dispersed around the area of the abandoned bridge for containment in the event that \\\"Trouble\\\" tried to flee.\\n. Mississippi Code Annotated section 13-5-71 (Rev.2002) provides that petit jurors be sworn in the following form: \\\"You, and each of you, do solemnly swear (or affirm) that you will well and truly try all issues and execute all writs of inquiry that may be submitted to you, or left to your decision by the court, during the present term, and true verdicts give according to the evidence. So help you God.\\\"\\n. \\\"[The Mississippi Supreme Court] has held that a party who fails to make a contemporaneous objection at trial must rely on plain error to raise the issue on appeal, because it is otherwise procedurally barred.\\\" Williams v. State, 794 So.2d 181, 187(\\u00b6 23) (Miss.2001) (citing Foster v. State, 639 So.2d 1263, 1288-89 (Miss. 1994)). \\\"The plain error doctrine requires that there be an error and that the error must have resulted in a manifest miscarriage of justice.\\\" Id. (citing Gray v. State, 549 So.2d 1316, 1321 (Miss.1989)). \\\"Further, [we] apply the plain error rule only when it affects a defendant's substantive/fundamental rights.\\\" Id. (citing Grubb v. State, 584 So.2d 786, 789 (Miss.1991)).\"}" \ No newline at end of file diff --git a/miss/8817895.json b/miss/8817895.json new file mode 100644 index 0000000000000000000000000000000000000000..fc8423d99e63e1da23c19453b2ee4b5e01b79268 --- /dev/null +++ b/miss/8817895.json @@ -0,0 +1 @@ +"{\"id\": \"8817895\", \"name\": \"Karl Schneider v. State\", \"name_abbreviation\": \"Schneider v. State\", \"decision_date\": \"1947-04-14\", \"docket_number\": \"No. 36275\", \"first_page\": \"1\", \"last_page\": \"3\", \"citations\": \"202 Miss. 1\", \"volume\": \"202\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T17:25:49.171337+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Karl Schneider v. State.\", \"head_matter\": \"Karl Schneider v. State.\\n(In Banc.\\nApril 14, 1947.)\\n[30 So. (2d) 90.\\nNo. 36275.]\\nWill S. Wells, of Jackson, for appellant.\\nGreek L. Rice, Attorney General, by R. O. Arrington, Assistant Attorney General, and W. D. Conn, Jr., of Jackson, for appellee.\\nArgued orally by Will S. Wells, for appellant, and by W. D. Conn, Jr., for appellee.\", \"word_count\": \"126\", \"char_count\": \"745\", \"text\": \"Griffith, J.,\\ndelivered the opinion of the court.\\nThis case is controlled by the opinion this day delivered in Wheat v. State, 201 Miss. 890, 30 So. (2d) 84.\\nReversed and appellant discharged.\"}" \ No newline at end of file diff --git a/miss/8819933.json b/miss/8819933.json new file mode 100644 index 0000000000000000000000000000000000000000..d6b1f8377a08efaae4fd916eb950b03c62e5ca08 --- /dev/null +++ b/miss/8819933.json @@ -0,0 +1 @@ +"{\"id\": \"8819933\", \"name\": \"Woods v. State\", \"name_abbreviation\": \"Woods v. State\", \"decision_date\": \"1956-12-17\", \"docket_number\": \"No. 40308\", \"first_page\": \"563\", \"last_page\": \"565\", \"citations\": \"229 Miss. 563\", \"volume\": \"229\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T22:10:44.668556+00:00\", \"provenance\": \"CAP\", \"judges\": \"McGehee, C. J., and Lee, Holmes and Gillespie, JJ., concur.\", \"parties\": \"Woods v. State\", \"head_matter\": \"Woods v. State\\nNo. 40308\\nDecember 17, 1956\\n91 So. 2d 273\\nJ. 0. Clarke, luka, for appellant.\\nJ. R. Griffin, Asst. Atty. Gen., Jackson, for appellee.\", \"word_count\": \"563\", \"char_count\": \"3333\", \"text\": \"Ethridge, J.\\nAppellant Jordan Woods was indicted for the murder of Clayton Murphy. The jury found him guilty of manslaughter. The judgment of the Circuit Court of Tisho-mingo County based thereon sentenced him to five years in the state penitentiary.\\nWoods contends that he was entitled to a peremptory instruction, for the reason that the evidence does not show that Murphy died of the gunshot wounds inflicted by defendant, and does not show the cause of Murphy's death. The State's version of the killing was evidenced by the testimony of two eyewitnesses, Whitehurst Murphy, brother of deceased, and Noonan Aldridge, deceased's brother-in-law. These two men, defendant Woods and Clayton Murchy went to Woods' house with food, and whiskey, which Clayton Murphy had purchased. Woods and Aldridge had an argument about some money Aldridge allegedly owed Woods, so Aldridge and the two Murphys left, but later returned to get the whiskey. Woods refused to turn it over to them, and in an argument cut Whitehurst and Clayton Murphy with a knife. Clayton then shoved Woods back. Woods ran in the house, grabbed a shotgun and, while standing on the porch, shot Clayton Murphy, who was standing on the ground near the steps, about 8 to 10 feet away from him. Clayton was not armed at the time and had made no threatening gestures toward the defendant. Prior thereto, defendant had cut Clayton on the arm, and when Woods shot him Clayton was stooped over pulling his shirt sleeve np to examine the wound. The buckshot from Woods' shotgun struck Murphy on the left side of the chin, knocking part of it off, and ranged downward into the left side of his chest. He was killed instantly.\\nAppellant and his brother Shelley Woods testified to support the defense's version of the killing. Appellant admitted shooting Clayton Murphy, hut said that it was done in necessary self defense; that Aldridge and the two Murphys assaulted him near his barn for the purpose of killing him; that he ran to his house with White-hurst and Clayton Murphy chasing him. Woods grabbed his gun, Whitehurst jumped back, and Clayton was rapidly advancing on him up the steps when he shot him.\\nThe jury was amply warranted in concluding on this conflicting evidence that appellant was guilty of manslaughter, pursuant to the manslaughter instruction granted the State. The corpus delicti in a homicide case consists of the fact of death and the fact of the existence of a criminal agency causing the death. Jones v. State, 88 So. 2d 91, 96 (Miss. 1956). The State's evidence supports a finding of the existence of these two facts, and that death resulted from appellant's actions. Freeman v. State, 89 So. 2d 716 (Miss. 1956).\\nThe degree of appellant's guilt was a question for the jury. It was justified in finding him guilty of manslaughter. Moreover, where the evidence is sufficient to convict for murder, the defendant cannot complain of the granting of a manslaughter instruction, if he has been convicted of manslaughter. Thigpen v. State, 219 Miss. 517, 522, 69 So. 2d 241 (1954); Perkins v. State, No. 40,240, decided November 19, 1956.\\nAffirmed.\\nMcGehee, C. J., and Lee, Holmes and Gillespie, JJ., concur.\"}" \ No newline at end of file diff --git a/miss/8820225.json b/miss/8820225.json new file mode 100644 index 0000000000000000000000000000000000000000..7b832308cca80309dc78a6164393cb0b7c797ffd --- /dev/null +++ b/miss/8820225.json @@ -0,0 +1 @@ +"{\"id\": \"8820225\", \"name\": \"Howell v. General Contract Corporation\", \"name_abbreviation\": \"Howell v. General Contract Corp.\", \"decision_date\": \"1957-01-07\", \"docket_number\": \"No. 40249\", \"first_page\": \"687\", \"last_page\": \"704\", \"citations\": \"229 Miss. 687\", \"volume\": \"229\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T22:10:44.668556+00:00\", \"provenance\": \"CAP\", \"judges\": \"Kyle, Arrington, Ethridge and Gillespie, JJ., concur.\", \"parties\": \"Howell v. General Contract Corporation\", \"head_matter\": \"Howell v. General Contract Corporation\\nNo. 40249\\nJanuary 7, 1957\\n91 So. 2d 831\\nAlexander, Feduccia & Alexander, Cleveland, for appellants.\\nWilliam Harold Cox, Jackson, for appellee.\", \"word_count\": \"3720\", \"char_count\": \"21695\", \"text\": \"Roberds, P. J.\\nOn June 10, 1955, General Contract Corporation, ap-pellee, which, for brevity, we will call complainant, filed the bill in this cause against Bill Howell Motor Company, a corporation, which we will call Howell Motor Company, and against Bill Howell and his wife Mrs. Betty H. Howell as individuals.\\nThe bill alleged that in the years 1952 and 1953 the Howell Motor Company had an agency for, and was engaged in, the sale of automobiles at Cleveland, Mississippi ; that complainant was in the business of financing automobile agencies; that the-complainant and Howell Motor Company entered into a written agreement under which complainant would purchase from Howell Motor Company, under terms detailed in the agreement, contracts and notes which the purchasers of automobiles would execute to Howell Motor Company for the unpaid purchase prices of automotive vehicles sold to such purchasers by Howell Motor Company. In other words this was the usual automobile dealer's refinance arrangement. It also averred that Bill Howell individually had guaranteed payment to complainant of all of the debts arising under this arrangement, and that the total of such debts approximated $14,053.86, which the Howell Motor Company and Bill Howell had refused and failed to pay. The bill exhibited some seventeen conditional sales contracts and purchase money notes which had been purchased by complainant under this arrangement. The bill also averred that Mrs. Betty H. Howell was personally indebted to complainant in the approximate amount of $2,495.46, balance owing on a conditional sales contract and note for the unpaid purchase price of an automobile Mrs. Howell had purchased from the Howell Motor Company, and which contract and note had been purchased by and transferred to complainant.\\nThe bill further alleged that Howell Motor Company was then out of business and was insolvent.\\nIt then averred that Bill Howell, on December 20, 1954, was the owner of a certain house and lot in the City of Cleveland, Mississippi, and that on that day he executed a deed undertaking to convey the title to said property to Mrs. Howell; that this conveyance was without consideration and it was made with the intent to, and it did, defraud creditors, including complainant.\\nHowell was not served with personal process and he did not answer. Nor did Howell Motor Company answer.\\nMrs. Howell answered, saying, in effect, she was not informed as to the various business matters existing between Howell Motor Company and Bill Howell and complainant. She admitted that Howell Motor Company was out of business; admitted she had purchased the automobile from Howell Motor Company and had executed the conditional sales contract and note for the purchase price. She admitted that Bill Howell had executed to her a deed to the Cleveland property but contended that it was a homestead; also that Mr. Howell was indebted to ber and be bad tbe right to convey ber tbe Cleveland property free of claims of bis creditors, and that, in addition, he held title to tbe Cleveland property as trustee for her; denied tbe conveyance was intended to, or did, in fact, defraud creditors. She also claimed to own certain personal property, such as shades, dishwasher, stove, washing machine, etc., which were in the house when the Cleveland property was deeded to her by Mr. Howell. She also said that on December 15, 1954, she and Mr. Howell had entered into a separation agreement and that he had, by virtue of said agreement, conveyed her the Cleveland property, which was then their homestead. She denied that complainant was entitled to subject the property to payment of the debts owing to it as set out in the bill.\\nMrs. Margaret Murphey Norman intervened in the cause. She asserted that Mr. and Mrs. Howell, on May 28, 1955, entered into a written contract with her under which she agreed to purchase and they agreed to sell to her the Cleveland property for the sum of $28,500, including certain household and kitchen equipment, as described in the contract. The purchase price was to be paid in cash after deducting $11,848.66 secured by a deed of trust against the property. She asserted she was ready and willing to carry out this agreement and that she was in the position of an innocent purchaser for value. She asked that the contract be carried out. We do not further detail the circumstances surrounding this purchase agreement because all parties gave tacit consent to the carrying out of the arrangement.\\nThe chancellor decreed that Howell Motor Company and Bill Howell were indebted to complainant in the sum of $14,035.96 and $500 attorney's fee. He rendered a personal decree against Howell Motor Company for that sum. He did not enter a personal decree against Howell because service of process was not had upon him and he did not appear, but he did decree that the net proceeds of the sales of the vehicles here involved he applied as a credit upon the amount found to he owing complainant. He rendered a personal decree against Mrs. Howell for the sum of $2,165, balance owing- complainant on the automobile she had purchased from Howell Motor Company, this amount to be credited with the net proceeds of the sale of the automobile covered by her contract and note. He held that the Cleveland property was not the homestead of Mr. and Mrs. Howell and that Howell did not hold title thereto as a trustee for Mrs. Howell, and that the conveyance of this property to Mrs. Howell was a fraud upon complainant as a creditor of Mr. Howell. He decreed that the sale of the Cleveland property to Mrs. Norman be carried out, and the net proceeds be applied to the debt found to be owing complainant after credit thereon of the net proceeds of the repossessed automobiles, and the payment of real estate dealer commissions.\\nProm this decree Mrs. Howell alone appeals here. She does not here contest performance of the purchase arrangement with Mrs. Norman.\\nShe does urge on this appeal (1) that the cause should be reversed and remanded because the chancellor excluded the deposition of Bill Howell; (2) that the conveyance to her of the Cleveland property was legal and valid, free of any claim of complainant, because (a) Howell held title thereto in trust for her, (b) that the conveyance was for a valuable consideration, and was not fraudulent as to complainant, and (c) the property was a homestead; (3) that the chancellor wrongfully held that the Chrysler Airtempt conditioning unit was a fixture and part of the realty.\\nComplainant-appellee contests these contentions. We will discuss and decide them in the order stated.\\nWhen the case was tried Mr. and Mrs. Howell were residing in Shreveport, La. As stated, Mr. Howell was not served with personal process and he made no appearance as a party to the lawsnit. His deposition was taken. Complainant made a motion to suppress the deposition on the main ground that the issues were complex and that justice could not he done without his personal appearance as a witness. The learned chancellor sustained the motion and suppressed the deposition. We cannot disturb the holding of the chancellor for the reason that the deposition was not offered in evidence; it does not appear in the record; we do not know what the testimony was. We have several times held that error in exclusion of evidence cannot be considered where it does not appear of record and it is not shown what the evidence was. Mississippi Central Railroad Company v. Robinson, 106 Miss. 896, 64 So. 838; Lizana v. Edward Motor Sales Co., 163 Miss. 266, 141 So. 295; G. M. & N. R. R. Company v. Willis, 171 Miss. 732, 157 So. 899; Shaw v. Bula Cannon Shops, Inc., 205 Miss. 458, 38 So. 2d. 916.\\nMrs. Howell says the conveyance of the Cleveland property to her by Bill Howell December 20, 1954, vested in her the legal title to the property because Bill Howell had title thereto as trustee fQr her. There was no express trust and nothing of record to give notice of any claim the title was being held in trust. It is said a constructive trust arose out of these circumstances: On December 31,1943, Mrs. Mecklin, the mother of Mrs. Howell, conveyed to Mrs. Howell a lot in Whitehaven, Tennessee. The Howells constructed a house on the lot. They' occupied the property as a homestead. On June 14,1945, they sold the property to Mr. Jode Sheehan and wife. Both Mr. and Mrs. Howell signed the deed. The difference between the indebtedness against the property and the purchase price thereof was $8,895.17. The purchasers gave Mr. and Mrs. Howell a check for that amount. Mrs. Howell endorsed that check. Howell deposited it to his credit at the hank, the net deposit, after payment of exchange, being $8,892.67. Mrs. Howell said in her answer that Howell promised her \\\"that he would build her a home of her choice in Cleveland, Mississippi, when his business permitted it.\\\" She testified that she let Mr. Howell have the money to \\\"put it in his automobile business in Cleveland. He was starting the business\\\", with an oral promise that when he made g'ood in his business he would build her another home. Again she said she let him have the money to use in the automobile business at Cleveland and Howell orally promised that if he prospered in business he would build her another home. All of this was oral; there was no written promise of any kind. It will be observed that the oral promises were vague, indefinite, uncertain and conditional. Mrs. Howell invokes the equitable doctrine that when a husband purchases a homestead with the wife's money and wrongfully takes title in his own name in violation of an agreement with his wife that title should be in her name, a resulting trust arises in favor of the wife, citing Shrader v. Shrader, 119 Miss. 526, 81 So. 227; Robinson v. Strauther, 106 Miss. 754, 64 So. 724; Ford v. American Home Fire Ins. Co. (Miss.), 5 So. 2d 416 and other cases. Of course, the rule of law is well established, but the facts of this case do not bring it within the rule. It is not claimed here that Howell used any of this money, or was supposed to use any of it, in the purchase of the home in Cleveland. At most, he made a conditional, indefinite, vague oral promise. Such a promise is not effective to create a legal, binding obligation. Logan v. Johnson, 72 Miss. 185, 16 So. 231; Bush v. Bush, 134 Miss. 523, 99 So. 151. As a matter of fact later developments did not fulfill the conditional oral promise. The automobile business did not prosper. It was a failure. No constructive or resulting trust resulted from this arrangement under the facts of this case. There is no need to invoke Section 269, Miss. Code 1942, requiring express trusts to be in writing and recorded in order to be legal and binding, nor to Section 455, said Code, re quiring transfers and conveyances of property between husband and wife to be in writing and be recorded in order to be valid against third persons. The chancellor was correct in holding that Howell did not hold title to the Cleveland property in trust for Mrs. Howell.\\nThe chancellor found that the deed made by Howell to Mrs. Howell on December 20, 1954, conveying the honse and lot in Cleveland, was made with the intent to defraud the complainant as a creditor of Mr. Howell. The evidence amply justifies the finding. Many suits had been instituted against him; a number of judgments had been obtained; his automobile business had been closed down by action of the Mississippi Employment Security Commission; complainant had endeavored, without success, to have various conferences with him in an effort to collect the debt owing them; a number of times Howell had failed to keep his appointments with complainant ; he had conveyed to Mrs. Howell what is called Laben Bayou Plantation, containing 257 acres; and he had also individually and as trustee for his three children conveyed the Wilmot Plantation. In other words, he was disposing of all of his property and refusing to cooperate with complainant in an effort to discharge his debt to it. The record discloses other facts and circumstances justifying the finding of the chancellor. However, Mrs. Howell says she paid Howell ample consideration for the Cleveland property and, notwithstanding the intent of the parties to the deed, she got a good title to the property conveyed. She does not claim she actually paid Howell, any thing when the deed was executed. \\\"What she says is that Howell owed her the money she let him have from the sale of the Whitehaven homestead, and she invokes the rule that a husband, though insolvent, has the right to prefer his wife over other creditors provided he owes her a valid debt equal to the fair value of the property convey, citing Graham v. Morgan, 83 Miss. 601, 35 So. 874; Kaufman v. Whitney, 50 Miss. 103 There are two answers to this contention: First, as above shown, there was no unconditional promise on the part of Bill Howell to repay this money, he did not owe his wife this money tested by legal requirements. And, Second, the debt, had it existed, was not equal to the value of the property. Mrs. Norman was willing to pay, and apparently did pay, $28,500 for the property. There was a secured debt against it of $11,848.66, leaving a net value of approximately $16,650. We have not tried to evaluate the very uncertain question of interest on the alleged debt of Mr. Howell to Mrs. Howell.\\nBut Mrs. Howell urges that, even though nothing was paid for the deed, the property constituted the homestead and Howell had the legal right to convey it to her, to the extent of the homestead exemption of $5,000, even though both parties had the intent to defraud Howell's creditors. In this contention we think appellant is correct. The evidence is all to the effect that on December 20, 1954, when the deed was executed by Bill Howell to the appellant, the property constituted the homestead of the parties. They and their three children were residing there. They had so occupied the property for a number of years. Howell did not go to Shreveport until January 1955. His wife and children continued to occupy the home. He came back to Cleveland from Shreveport a number of times. Mrs. Howell testified at the trial that she and the children moved to Shreveport some five or- six weeks before the trial. Mr. and Mrs. Howell obtained homestead tax exemption on the Cleveland home for the year 1955. No new home had been acquired by Mr. Howell when this deed was executed. While Mr. and Mrs. Howell had an agreement December 15, 1954, that they would live apart but not obtain a divorce, they seem to have shortly thereafter changed their intentions and continued to live together as man and wife, and were doing that in Shreveport when this cause was tried. Both Mr. and Mrs. Howell signed the agreement to sell the Cleveland, property to Mrs. Norman. We think it is clear that on December 20, 1954, the date Billy Howell made the deed to Mrs. Howell, the Cleveland property constituted their homestead. Billy Howell had the right to convey to his wife the extent and value of that homestead regardless of his intention toward his creditors. Section 329, said Miss. Code, provides: ' ' The exempt property, real or personal, disposed of by the owner, shall not by disposal become liable to the debts of the owner; and any debtor leaving this state may take with him his personal property which is exempt from execution.\\\" The value of the homestead exemption was $5,000. Section 317, 1954 Cumulative Supp. to Miss. Code 1942 Annotated. It follows that Mrs. Howell, upon receipt of the deed from Mr. Howell, was vested with the value of the homestead exemption. This result, however, raises another question. The chancellor rendered a personal decree against Mrs. Howell for $2,165, balance of the purchase price of an automobile, for which Mrs. Howell had executed a purchase contract and a promissory note, which papers had been bought by and transferred to the complainant, this amount to be credited with the net proceeds of the sale of the automobile.\\nThe question naturally arises, under our holding, whether Mrs. Howell is entitled to the entire $5,000, free of the personal decree against her, or whether complainant has the right to have the-personal decree satisfied out of the $5,000, as a result of subsequent changes, if any, in the homestead status. The chancellor was not confronted with'this question on the former trial. We think it best that he pass upon it after full opportunity of all interested parties to be heard. Therefore, we remand the case so that the chancellor may determine whether or not the homestead status subsequently changed after December 20, 1954, in such manner as to render the proceeds of the sale to Mrs. Norman liable to the satisfaction of the personal decree against Mrs. Howell, or whether Mrs. Howell is entitled to the $5,000 free of such personal decree.\\nThe chancellor held that the Chrysler Air-temp't air conditioner was a part of the realty. The evidence supports the conclusion.\\nAffirmed in part, reversed in part and remanded.\\nKyle, Arrington, Ethridge and Gillespie, JJ., concur.\\nON SUGGESTIONS OF ERROR\\nGillespie, J.\\nIn her suggestion of error appellant directs our attention to a statement in our former opinion that ' ' The Howells constructed a house on the lot.\\\" Reference was to the Whitehaven property deeded to Mrs. Howell by her mother. The record shows- that the house was on the lot when Mrs. Howell's mother deeded it to appellant. The conference decided the case on the theory that the house and lot in Whitehaven was the property of Mrs. Howell, and the incorrect statement did not bear on our decision. The former opinion is modified so as to delete the quoted statement and so as to show that Mrs. Howell was -deeded a house and lot in Whitehaven.\\n,r Appellant also calls to our attention that the check for- the net purchase price of the Whitehaven property was made out to Mrs. Howell and not to her and her husband. The- record showed that Mrs. Howell was .not Sure how the check was made but the banker-testified positively that it was made out to Mrs. Howell. At that time- the money was' Mrs. Howell's, and we deem it immaterial how the check was made out, but the opinion should show that it was made out.to Mrs. Howell.\\n\\\\ After'further conference and consideration'of the c\\u00e1se; we . are of the opinion that the suggestion of error, filed by appellant should be overruled.\\nWhen in onr former opinion we dealt with the contention of appellant that her husband owed her for the proceeds of the sale of the Whitehaven homestead, and that he had the right to prefer her over his other creditors, the fundamental inquiry was whether, the conveyance from Howell to his wife was a fraudulent one, not entirely whether Howell owed his wife, although that was necessary to sustain appellant's contention. Whether Howell and his wife in reality intended that the transfer of the home from Howell to appellant was to repay appellant, that is, prefer her over his other creditors, was vital, for if there was no honest intention to satisfy a debt by the conveyance and thus prefer appellant, but the intention was to hinder, delay and defraud his creditors, the conveyance was invalid even if Howell did owe appellant. Based on appellant's testimony, the fact that there was no unconditional promise by Howell to repay appellant and the parties did not appear to treat the receipt by Howell of the proceeds of the White-haven sale as creating a debt, the fact that the value of the property transferred was largely in excess of the amount of the proceeds of the sale of the Whitehaven property, the financial condition of Bill Howell at the time of the conveyance, and all the other facts and cir-' cumstances surrounding the conveyance from Howell to appellant, the chancellor was fully justified in finding that the conveyance from Howell to appellant was not to satisfy any debt, or to prefer appellant as a creditor, but that the real intent and purpose for the conveyance was to hinder, delay, and defraud the grantor's creditors, including appellee, and the effect of the deed was to do that very, thing.\\nWe recognize the rule that permits a husband to prefer his wife over other: creditors, and also the rule that if the conveyance is otherwise valid it is partially good even if the property conv\\u00e9yed exceeds in value the debt, so that the wife is validly,preferred pro tanto; but in every such case the honest intent that the conveyance satisfy a debt so as to prefer the grantee must be found on sufficient evidence. Where a man owes his wife a debt and also owes others, he may in good faith convey property to her in satisfaction of the debt, even if the result of the conveyance is to hinder, delay, or defeat his other creditors. In other words, where the real intent and purpose is to hinder, delay and defraud other creditors, the conveyance is void, even though the grantor is actually indebted to the grantee. On the other hand, if the real intent and purpose was to satisfy the debt owing to the grantee, it is valid notwithstanding the claims of other creditors would be hindered, delayed or defeated; for if it were otherwise there could never be a valid preference because to prefer one creditor necessarily hinders the others.\\nAppellee also filed a suggestion of error, and it should be and is overruled.\\nSuggestions of error overruled and former opinion modified.\\nRoberds, P. J., and Kyle, Arrington and Ethridge, JJ., concur.\"}" \ No newline at end of file diff --git a/miss/8824287.json b/miss/8824287.json new file mode 100644 index 0000000000000000000000000000000000000000..0334885b826a0a5873e335a1f4001dde5ce22b41 --- /dev/null +++ b/miss/8824287.json @@ -0,0 +1 @@ +"{\"id\": \"8824287\", \"name\": \"Clark et al. v. Board of Trustees of Loper Line Consolidated School District\", \"name_abbreviation\": \"Clark v. Board of Trustees of Loper Line Consolidated School District\", \"decision_date\": \"1918-03\", \"docket_number\": \"\", \"first_page\": \"234\", \"last_page\": \"243\", \"citations\": \"117 Miss. 234\", \"volume\": \"117\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:47:05.279046+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Clark et al. v. Board of Trustees of Loper Line Consolidated School District.\", \"head_matter\": \"Clark et al. v. Board of Trustees of Loper Line Consolidated School District.\\n[78 South. 145,\\nDivision A.]\\nMandamus. Exclusion of children from school.\\nA citizens who has a lawful right to enter his children in a public school, and who has been wrongfully denied this right, may, if he so elects, pursue the remedy of appealing to the school authorities, as provided in the statutes, for relief against such wrong; but he is not limited to such procedure, nor is he compelled to first pursue the remedy provided by the statute but may bring his complaint into the courts by mandamus without resorting to an appeal, to the school authorities.\\nAppeal from the circuit court of Berry county.\\nHoN. Paul B. JohnsoN, Judge.\\nPetition for writ of mandamus by Davis and Zoola-Clark against the Board of Trustees of the Loper Line Consolidated School' District. From a judgment dismissing the petition, plaintiff appeals.\\nThe facts are fully stated in the opinion of the court.\\nCurrie & Curriej for appellants.\\nThe demurrer is found on page 8 of the record and is a general demurrer. The question raised by the demurrer is whether the writ of mandamus will lie. The contention made upon the demurrer in the lower court was that the writ would not lie because the court had no jurisdiction over the subject-matter of .the petition and that the petition presented matters that lay exclusively within the jurisdiction of the school authorities and boards of education in the state of Mississippi, and could be determined only by the school authorities and school boards.\\nThe contention appears to us to be not only monstrous but pernicious and vicious \\u2014 dangerous in the extreme. It -would never do to adjudicate that as a matter of law- the courts of the land have no jurisdiction to hear and determine a petition for the writ of mandamus under s.nch a state of facts as is alleged and admitted to he true in the petition. There are many reasons which could he assigned why it should never he judicially determined that the courts of the state are without jurisdiction to entertain such a petition hut the one all-sufficient reason is that the courts of the state under the law have jurisdiction.\\nIt has been repeatedly held by this court that school districts in the state of Mississippi are quasi-corporations or bodies politic and that the trustees of such school districts are giiasi-public officers. This question was raised and fully and earnestly briefed and argued in the late case of the Board of Trustees of the New Augusta Consolidated School District v. The Buries Construction Company, and the court held in that case that the suit was properly brought against the hoard of trustees and that the court had jurisdiction, to hear and determine the same. This is the settled law in this state. Surely the court, has jurisdiction of the subject-matter of the petition because it alleges the unconstitutional and the unlawful infraction of the rights of the petitioners and a denial to them and their children of the right to attend the public school; a denial of one of the most valuable, most important, and most sacred rights vouchsafed to the citizen and the child \\u2014 the denial of a right which lies at the very root of the public and general welfare and perpetuity of the state, the Government itself. The court will not shear itself of jurisdiction of the subject-matter of so important a thing. There is no statute expressly denying the courts jurisdiction, of such a petition, and if such a statute should he enacted, we submit that it would he unconstitutional and void.\\nWe submit this question to the court upon the very right and reason of the thing for its determination. We deem it unnecessary to cite authorities.\\nS. R. Hall, for appellees.\\nThe demurrer to the complainant\\u2019s petition was properly sustained by the trial judge; under the special allegations of the petition this cause could not be brought by mandamus proceedings. There has been great progress made in our educational affairs, much time and patience has been spent in carving out a school law to take care of this vital interest to the state. After years of thought by those trained and interested in the schools of our state chapter 125 of the Code of 1906, was adopted and amplified to meet the needs of this important matter, and among many other measures embodied therein is section 4524.\\n\\u2018 \\u2018 The trustees may suspend or expel a pupil for misconduct and shall look after the interests of their schools, visit the same at least once during each month by one or more of their number, see that fuel is provided, protect the school property and care for same during vacation, and arbitrate difficulties or disputes between teachers and pupils; but either party, feeling aggrieved by their decision, may appeal to the county superintendent, and from him to the state board of education. And the trustees may make provisions for the comfort and welfare of the pupils; but the same shall not involve an expenditure of money not already appropriated for this purpose by the proper authorities.\\nSuch a contention as. here arises was contemplated thereby and a redress provided. The petition alleges that the children of the petitioners were wrongfully excluded from the school involved. If the appellants are right and petitioners entitled to the relief, sought then the remedy of this section should have been applied.\\n1. Under this statute, if the petitioners wanted to contest the alleged wrongful exclusion of the children, they should have taken the matter up through the county superintendent of education.\\n2. If the finding of the superintendent was not satisfactory to them, then an appeal should have been taken to the state board of education.\\nThe petition fails to allege that either of these rights were performed, in fact neither were. A rush is made to the court through this petition. Until the preliminary steps as provided by the statute referred to have been taken \\u2014 this petition is premature, and should have been dismissed.\\nIf our courts can he called upon in this wise to settle\\u2019 every difference that may and does arise pertaining to our schools, there would be no end to litigation. Our law makers saw fit to keep such question involved in this suit peculiarly in the hands- of those most directly in touch with our school interest, and I think this court will so hold and wisely so.\\nThe wisdom of the law is seen in placing for first decision a matter of this kind in the hands of the county superintendent of education, who, of course, is versed in the school law, and who is familiar with local situations, the school' teachers, trustees and patrons, and whose opinion of such matters would he weighty. So, however, that an interested party could not be affected in his or her right by an error of such superintendent of education an appeal is provided in the state board of education. This board is far removed from local influence and could, and no doubt would, readily correct any error or wrong the county superintendent of education might cause or effect.\\nIf the position of the appellant was maintained the wise provisions of the school law referred to would be made nugatory and obsolete. Under section 4524, Code of 1906, the superintendent of education and the state board of education were clothed with discretion in the matter here involved. Then, under the holding- of this court the writ of mandamus could not affect them or control their acts. For this reason also this demurrer is well taken on this point, see: Vicksburg v. Rainwater, 47 Miss. 547; Clayton v. McWilliams, 49 Miss. 311; State Board v. West Point, 50 Miss. 638; Monroe Co. v. State, 63 Miss. 135.\\nIt will thus be seen that the demurrer was rightfully sustained and the cause should be affirmed.\", \"word_count\": \"2870\", \"char_count\": \"16826\", \"text\": \"HoldeN, J.,\\ndelivered the opinion of the court.\\nThis is an appeal from a judgment sustaining a demurrer and dismissing a petition for a writ of mandamus. Here is the controversy:\\nAppellants set up in the petition for the writ: \\\"That they'are freeholders in and patrons of said Loper Line consolidated school district and of the said Loper Line consolidated school, and that they have and are parents of children of the free school' educable age, who by law and as a matter of right are entitled to attend said free school; that your petitioners are the owners of property in said consolidated school district, upon which they pay taxes, and that they contribute and have contributed to the establishment, equipment, and maintenance of said school; and that your petitioners, as parents of said children, and as resident freeholders and taxpayers in said consolidated school district, .and as patrons of said school have the right to send their children to said school, and to have them taught Ly the teacher therein.\\n\\\"Tour petitioners allege that it is the duty of said \\u2022trustees, said county superintendent, and said principal of the faculty of said school to receive the children of your petitioners in said school in the same manner and on equal footings with other children, and to teach and instruct the children of your petitioners in the same manner and on equal footings with those of the other patrons of said school, and that this duty the. law enjoins upon said defendants by virtue of their said offices.\\n\\\"Tour petitioners allege that they heretofore, at the opening of said school, started their said children in attendance thereupon, as in law they had a right to, by virtue of the premises herein alleged, and that the said children of your said petitioners, as they were \\u2022entitled to do in law and of right, entered said school for the purpose and with the intention of being therein taught and trained in the same manner and on equal footings with the children of the other patrons of said .school, when on the 25th day of September, 1916, the said trustees of said school, acting as such and in concert with the other defendants herein, the said county superintendent and the said principal of the faculty of said school, without authority or warrant in law for so doing, and in violation of their duty under the law as such officers, and of the rights of your petitioners and of their said children, wrongfully and oppressively refused and denied to your petitioners and their said children the right to attend said public school, and served official notice of their action upon your petitioners in writing, which said notice, a copy of which is hereto appended as 'Exhibit A/ is in the words and figures as follows, to wit:\\n\\\" 'Rhodes, Miss., September 25, 1916.\\n\\\" \\u00a3Mr. Davis Clark \\u2014 Dear Sir: You are hereby notified that you must take your children out of our public school. We have looked the matter up, and are acting on the suggestion of the county superintendent and other county officers, and therefore we feel that we are acting right in writing this notice.\\n\\\" 'W. S. CayNON,\\n\\\" \\u00a3S. M. Loper,\\n\\u00a3\\u00a3 \\u00a30. E. Biellew,\\n\\u00a3\\u00a3 'Trustees Loper Line Consolidated School.'\\n\\\"Tour petitioners allege, by reason and by virtue of the aforesaid notice and of the aforesaid wrongful action of the said officers, they have been wrongfully and oppressively deprived of the constitutional right guaranteed to them by the Constitution of the United States and of the state of Mississippi and the laws thereof to send their children to the free school of their county when of free school educable age, and that their said children by said same notice have been deprived of the constitutional rights guaranteed to them by the Constitution of the United States and the state of Mississippi to attend the public school of their said county, and that their children have by said wrongful acts aforesaid been wrongfully and oppressively and without warrant of authority in law by said officers, defendants herein, deprived of their right to obtain and accquire an education in the free school or public school of the land provided for that purpose and maintained in part by your petitioners.\\\"\\nThe question raised by the demurrer is whether the writ of mandamus will lie. The contention made upon the demurrer in the lower court was that the writ would not lie, because the court had no jurisdiction over the subject-matter of the petition, and that the petition presented matters that lay exclusively within the jurisdiction of the school authorities and boards of education in the state of Mississippi, and could be determined only by the school authorities and school boards, relying on sections 4487, 4503, and 4524, Code of 1906 (sections 7322, 7580, and 7344, respectively, Hemingway's Code), to sustain the contention presented by the demurrer.\\nThe question presented now for our decision was expressly passed upon by this court in Moreau v. Grandich, 114 Miss. 560, 75 So. 434, which case clearly holds that an appeal to the school authorities to secure a right to the benefits of our public schools is not an exclusive remedy, but that mandamus will lie to enforce such rights through the courts of the state. We here quote from the opinion in that case:'\\n\\\"It is next to be determined as to whether an appeal under the school law from the trustees to the superintendent was an exclusive remedy. In our opinion it is not an exclusive remedy. The right to admission to the public schools of the state is a valuable right, upon which litigants have a right to a judicial determination. In our view, the trustees of schools are not judicial officers, and do not exercise judicial functions. They are administrative bodies, and while appeals lie from the decision of the trustees to the county superintendent, and from the county superintendent to the state board of education, these appeals deal with administrative matters and do not -constitute res adjudicata, Hobbs v. Germany, 94 Miss. 469, 49 So. 515, 22 L. R. A. (N. S.) 983. Under sections 1 and 2 of our Constitution, separating the powers of government into legislative, executive, and judicial departments, persons in one department of govenment cannot exercise the powers of any other department of the government, and there is no provision in reference' to school trustees that modifies these provisions. There are many cases where proceedings before administrative bodies are analogous to proceedings in courts. They frequently hear and determine facts, but their findings and judgments have no conclusive effect, and do not constitute res adjudicata.\\\"\\nA citizen who has a lawful right to enter his children in a public school, and who has been wrongfully denied this right, may, if he so elects, pursue the remedy of appealing to the school authorities, as provided in the statutes, for relief against such wrong, and probably should do so in most cases; but he is not limited to such procedure, nor is he compelled to first pursue the remedy provided by the statutes above, but may bring his complaint into the courts, without resorting to an appeal to the school authorities. The privilege of being heard in open court should not be denied the humblest citizen, who is wrongfully deprived of a substantial right. As the church is built and dedicated as the temple of religion, so the courthouse is set up in the midst of men and dedicated the temple of justice. The door of this temple is barred to no man with a just complaint. There are no keys, of which the few have duplicates and the many have none. The halls of this temple are free to all; the rich and the poor, the proud and the meek, the heathen and the priest. It is the seat of the institution that is founded upon the unchanging granite of the law, and safeguarded by the tenets of our Constitution.\\nThe courts are not closed to. any one aggrieved because there may perchance be other tribunals, or other constituted authority, legislative or executive, to which or to whom recourse may first be had. If a man be wronged, if he be deprived of any right conferred by law, however slight the wrong or deprivation may seem, he has his right of action in the courts. Whether he has been the prey of unscrupulous private individuals, or the victim of misguided public officials, there is no' distinction or difference. He may seek redress in a court of justice in either event. In the latter case he is not compelled to exhaust his remedies by appeal to. administrative authority before bringing his cause into court. He may bring it in the first instance. and there submit the matter for adjudication. This is a right proceeding from constitutional guaranties, and all efforts that have ever been unwisely put forth to impair or curtail those guaranties have unfail ingly shot their mark before the formidable walls raised by that great- foundational instrument that preserves them for a free people.\\nThe lower coiirt erred in sustaining the demurrer: The judgment is reversed, and the cause remanded.\\nReversed and remanded.\"}" \ No newline at end of file diff --git a/miss/8827244.json b/miss/8827244.json new file mode 100644 index 0000000000000000000000000000000000000000..c68a3fa41abd0d91ab71f4eb9512e8717c2d19cd --- /dev/null +++ b/miss/8827244.json @@ -0,0 +1 @@ +"{\"id\": \"8827244\", \"name\": \"State ex rel. Howie Dist. Atty. v. Brantley, State Game and Fish Commissioner. Ex Parte Robinson\", \"name_abbreviation\": \"State ex rel. Howie v. Brantley\", \"decision_date\": \"1916-10\", \"docket_number\": \"\", \"first_page\": \"812\", \"last_page\": \"819\", \"citations\": \"112 Miss. 812\", \"volume\": \"112\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T20:18:59.777344+00:00\", \"provenance\": \"CAP\", \"judges\": \"Sykes, J., dissents.\", \"parties\": \"State ex rel. Howie Dist. Atty. v. Brantley, State Game and Fish Commissioner. Ex Parte Robinson.\", \"head_matter\": \"State ex rel. Howie Dist. Atty. v. Brantley, State Game and Fish Commissioner. Ex Parte Robinson.\\n[73 South. 795,\\nIn banc.]\\n1. Fish. Game. Statute. Validity. Construction under mid statute.\\nA majority of the supreme court are agreed that chapter 99, Laws 1916, should not be regarded in force and effect in Mississippi, and from this it necessarily follows that there is no such public office now as that of state game and fish commissioner.\\n2. Same.\\nLaws 1916, chapter 99, being void, no conviction thereunder can be sustained.\\nAppeal from the circuit court of Hinds county.\\nHon. W. H. Potter, Judge.\\nTwo cases, one quo warranto, by the state on relation of J. H. Howie, district attorney, against Z. A. Brantley, game and fish commissioner of the state, and the other arising under habeas corpus by Sim Robinson, after conviction of hunting without license. In the first case the writ prayed for was issued, hut judgment was entered in favor of Brantly, and the relator appeals. In the first case, judgment set aside and vacated and judgment entered ousting defendant. In the- second case, judgment set aside and judgment for relator entered, discharging him from custody.\\nThe facts are fully stated in the opinion of the court.\\nLamar F. Easterling, Assistant Attorney-General for appellant. \\u2018\\nJ. B. Harris, for appellee.\\nIn case No. 19464: J. M. Vardaman, for relator.\\nRoss A. Collins, Attorney-General, opposed.\", \"word_count\": \"2245\", \"char_count\": \"13326\", \"text\": \"Per Cubiam.\\nThese ca'Ses were argued and submitted together, and present the same legal questions. The first cause, No. 19461, is an appeal from a judgment in quo ivarranto on the information of the district, attorney against ap-pellee, Z. A. Brantley, game and fish commissioner of the state. The petition for the writ averred that appel-lee was unlawfully holding and exercising the functions of a public office, was claiming the right to an office in the state capitol, and was demanding hunters' licenses and threatening to impose fines upon persons violating chapter 99, Laws 1916, known as the \\\"Game and Fish Law. ' '\\nIn the second cause, No. 19464, Sim Bobinson was convicted before the police justice of the city of Jackson for hunting without the license required by said game and fish law. After conviction, he sued out a writ of habeas corpus before the circuit court of the first district of Hinds county. The writ was denied, and Bobinson appeals from the judgment, so denying relief by habeas corpus.\\nTile real issue presented by the appeal in the first case, the one vital question for decision, is whether Mr. Brantley legally holds and occupies the public office of state game and fish commissioner. The controlling question in the habeas corpus case is whether appellant Bobinson was convicted of crime without authority of law. The determination of the main question in each case must be controlled by the further question whether the new game and fish statute above mentioned is constitutional, and therefore is a valid, subsisting law, and whether the law, if constitutional, is now in force and effect. If there is no such law now- in force and effect, then it follows that there is- no' public office of state game and fish commissioner, and, furthermore, no one could be convicted for violating any of the pro.visions of such law.\\nThe argument of these cases is directed to two general legal propositions. The first general proposition turns upon the question: Is chapter 99, Laws 1916, as drafted and prepared by the legislature, unconstitutional and void on its face? The second general contention is that the statute in question, if a valid law, has been repealed or nullified by a vote of the people, acting under the so-called initiative and referendum amendment to the Constitution. The discussion of each of these two general propositions has necessarily directed the attention of counsel and court to many specific points of attack on the law in question.\\nThere are several reasons advanced why chapter 99, Laws of 1916, contravenes our state Constitution, and, accordingly, why 'the said law should be regarded as unconstitutional and void on its face. It is suggested that the statute violates section 20 and 175 of the state Constitution. These sections of our Constitution provide that no person shall be elected or appointed to office in this state for life or during good behavior, but the term of all offices shall be for some specified period, and that officers shall be liable to indictment for willful neglect of duty or misdemeanor in office, and npon conviction shall be removed from office. It is contended that the county wardens and deputies provided for by the game and fish law are pjihlic officers, and that section 11 of the act authorizes their appointment and removal by the state game and fish commissioner, and that the authority to remove may be exercised by the state game and fish commissioner at any time, contrary to the provisions of the Constitution. It is further contended that the statute violates section 261 of the Constitution, which reads as follows:\\n\\\"The expenses of criminal prosecutions, except those before justices of the peace, shall be borne by the county In which-such prosecutions shall be begun; and all net fines and forfeitures shall be paid into the treasury of such county. Defendants, in cases of conviction, may be taxed with the costs.\\\"\\nReference to section 17 of the act will show that each county warden is to receive one-half of all fines, forfeitures, and penalties collected in the county in which he holds office, for violations of the game law, and the remaining one-half is to be forwarded on the first day \\u2022of each month to the state treasurer to be credited to the game and fish protection fund provided for by the statute. It is contended that the scheme porovided by this new game and fish law, whereby the net fines and forfeitures are to be sent to the state capitol and paid into the state treasury to the credit of the game and fish protection fund, manifestly violates the plain provisions of section 261 of the Constitution.\\nSection 18 of the statute provides for a county license of two dollars for each resident hunter, a state license of five dollars for each resident hunter, and a license of fifteen dollars for each nonresident hunter. By section 20 of the act .nonresidents are prohibited from trapping in the state of Mississippi. It is contended that section 23 permits resident owners to hunt on their own premises, without license, and denies to nonresident hunters the right .to hunt upon their own land without first paying for and obtaining a license. From these provisions it is suggested that the law unlawfully discriminates against nonresidents, in that it denies them the right to trap upon their own plantations or lands, and denies them the privilege of hunting upon their own lands without first obtaining a license; that every one has a qualified interest in the game found upon (his own lands, and has a natural right to hunt, trap, and fish thereon, and that 'this right inheres in him by reason of his ownership of the soil.\\nIt is further contended that, under section 18 of the game law, all minor members of families may hunt under the one license issued to the head of the family, and that, accordingly this unlawfully discriminates against certain other hunters. It is suggested that a large portion, of the hunting and' fishing is done by young men or boys under the age of twenty-one years, who, under the provisions of this act, would not be required to pay a license if they are living under the parental roof; that the amount of 'game which every hunter is authorized to take is limited; that under this plan a father with many sons could take a much larger portion of game and fish than mtmy other heads of families; that the orphan boy in many instances could not avail himself of the provision of hunting under a license issued to the head of a family, but, on the contrary, would be required to pay the license. From all this it is contended that, although the fish and game equitably belongs to all the people of the state, under the requirements of this new statute there is unlawful discrimination against, certain, classes of citizens of our own commonwealth.\\nThe further question presents itself, that is, if the statute under attack attempts unlawfully to divert the fines and forfeitures from the various counties and deposit them in the state treasury to the credit of the game protection fund, contrary to the state Constitu tion, and if the licenses provided lor work an unlawful discrimination against certain classes of' citizens, that then no adequate revenue is provided for maintaining the office of state game and fish commissioner, for paying the extra expenses of county wardens, and for enforcing the provisions of the statute; and, if this he the true situation, then the act does not provide a workable plan and harmonious scheme for protecting the game and fish of Mississippi, and that accordingly, the whole act should he declared unconstitutional and void. It is suggested that the legislature would \\u00bfrot have enacted this law without the means for paying the officers charged with the duty of enforcing it; that the legislature would not have enacted it with the other objectionable features indicated; that' the law is so deficient in many important particulars that the whole act should be struck down as inoperative and void.\\nMany reasons are also assigned why chapter 99, Laws of 1916, has not been nullified by a referendum vote of the people. On this branch of the discussion, several reasons are ' assigned why the referendum amendment to the Constitution has not been legally adopted and inserted as a part of our organic law. Briefly 'stated, the contentions are that the initiative and referendum amendment to the Constitution is void on its face, because the amendment, purporting to be only one amendment, in fact embraces two separate and distinct powers and amendments to the state Constitution, to wit the power of the people themselves to make or nullify a statutory law; and, second, the power of the people to initiate a constitutional amendment. It is furthermore claimed that this amendment did not receive a majority of the qualified electors voting at the general election at which the people undertook to adopt or approve the initiative amendment, contrary to the provisions of section 273 of our state Constitution, requiring every amendment to our organic law to re ceive \\\"a majority of the qualified electors voting\\\" at the election.\\nThe members of this court have given to the many delicate and constitutional questions presented by these records the'most careful thought and consideration. After mature deliberation, a majority of the court are convinced beyond doubt that the judgment of the learned circuit court is erroneous, and should he reversed. The several members of the court \\\"are not agreed, however, upon any one reason that should be assigned why the judgment of the lower court should he reversed. Some of the justices are of the opinion that the game and fish statute is unconstitutional on its face, and therefore inoperative and void; and they reach this conclusion regardless of the initiative and referendum amendment to the Constitution and the vote of the people thereunder. Other members of the court are of the opinion that the statute in'question has been legally voted out by the people, and therefore is no longer in force and- effect. Inasmuch as a majority of the court are not agreed upon any one of the many constitutional points argued and considered, and therefore no legal principle can be conclusively settled at this time, we shall forego or waive any elaborate discussion of the merits or demerits of any one of the many contentions made or constitutional questions argued. As stated by the \\\"Wisconsin court, through\\nMARSHALL, J.:\\n\\\"A situation so extraordinary rarely occurs in judicial work. That it should move judicial minds to exhaust all reasonable efforts for harmony, as it has in this case, is most natural.\\\" Will of McNaughton; Frane v. Plumb, 138 Wis. 179, 118 N. W. 997, 120 N. W. 288.\\nThe majority of the court are agreed that chapter 99, Laws of 1916, should not now be regarded in force and effect in Mississippi; and from this it necessarily follows that there-is no such public office now as that of state game and fish commissioner. It is the judgment of the 'court, therefore, that the writ of quo warranto was properly issued; that the demurrer filed by the district attorney to the special plea in bar of the defendant was improperly sustained; that the-judgment entered in favor of Mr. Brantley was erroneous, and that this judgment should be set aside and vacated and a judgment entered here, declaring that no such office as state - game and fish commissioner now exists, and that appellee should be . ousted of and restrained from exercising the functions of any such office. We are also of the opinion that the judgment of the learned circuit court, denying the petition of habeas corpus to Sim Robinson, should be set aside, and, there being no dispute as to the facts, that judgment should be entered here in favor of Sim Robinson, relieving him from the conviction mentioned, and discharging him from custody. So ordered.\\nSykes, J., dissents.\"}" \ No newline at end of file diff --git a/miss/8834639.json b/miss/8834639.json new file mode 100644 index 0000000000000000000000000000000000000000..ecffcdb2862ae9c90bde87ff72ab8097ac4b533b --- /dev/null +++ b/miss/8834639.json @@ -0,0 +1 @@ +"{\"id\": \"8834639\", \"name\": \"State Board of Education v. Mobile & Ohio Railroad Co.\", \"name_abbreviation\": \"State Board of Education v. Mobile & Ohio Railroad\", \"decision_date\": \"1894-10\", \"docket_number\": \"\", \"first_page\": \"236\", \"last_page\": \"240\", \"citations\": \"72 Miss. 236\", \"volume\": \"72\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:41:30.768711+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State Board of Education v. Mobile & Ohio Railroad Co.\", \"head_matter\": \"State Board of Education v. Mobile & Ohio Railroad Co.\\n1. CONSTRUCTION on Statute. Evident purpose effectuated.\\nIn order to effectuate the evident purpose of a statute, courts will, if necessary, depart from a literal interpretation, and give it a broader or more restricted meaning than its mere words import. \\u201e\\n2. Railroads. Highway crossing. Signboards. Code 1880, $ 1050.\\nThe erection and maintenance hy railroad companies at highway crossing-s of large signboards in the shape of a double cross, conspicuously inscribed \\u201c Railroad Crossing,\\u201d is a substantial compliance with \\\\ 1050, code 1S80, which, under a penalty, requires them to erect and maintain at every such crossing a board \\u201c upon a post or frame sufficiently high,\\u201d with the inscription \\u201cLook out for the Locomotive. \\u201d So held in a suit for the penalty.\\n3. Pleading. Demurrer overruled. Failure to reply. Judgment final.\\nUpon overruling a demurrer to a plea which goes to the whole action, if plaintiff declines to reply, there should be judg-ment final for defendant.\\nFroM the circuit court of Lee county.\\nHoN. NewNAN Cayce, Judge.\\nSection 1050, code 1880, is as follows: \\u201cEvery such [railroad] company shall cause a board to be erected and kept up upon a post' or frame sufficiently high, at every place where the railroad may cross a highway, with this inscription: \\u2018Look out for the locomotive; \\u2019 and, on failure to observe the three last provisions, such company shall be liable to a fine of fifty dollars for each failure, and such offense shall be cognizable before any justice of the peace of the county. A failure to erect the board, as directed, shall be deemed to have occurred on every day the company may continue so to fail or neglect to have the same set up; and, moreover, such company shall be liable to any party injured by such failure or neglect for all damages that such party may have sustained thereby. \\u2019 \\u2019\\nThe state board of education brought this action in August, 1892, against the Mobile & Ohio' Railroad Co., seeking to recover a large sum alleged to be due as fines accrued under the above-quoted section of the code of 1880. Defendant demurred to the declaration. The cause was before this court at the October term, 1893, on an appeal by the plaintiff from a judgment sustaining a demurrer to the declaration and dismissing the cause, and the judgment of the court was reversed. See Board of Education v. Bailroad Go., 71 Miss., 500. On the return of the case to the lower court, defendant filed many pleas, but the opinion of the court renders it unnecessary to notice any of them except the sixth, which averred a substantial compliance with the statute. The facts throwing light on this issue sufficiently appear in the opinion. Plaintiff\\u2019s demurrer to the sixth plea was overruled, and plaintiff having declined to reply thereto, the court directed judgment final for the defendant, and plaintiff appeals.\\nClarke & Clarke, for appellant.\\nThe language of \\u00a7 1050, code 1880, is clear and unambiguous, and does not admit of construction. It admits of but one meaning, and the courts cannot construe it so as to give it another. 23 Am. & Eng. Ene. L., 298-305; 2 Cranch, 386; 6 Wall., 395; 5 Wheat., 95; 95 Am. Dec., 152; 63 lb., 139; 12 lb., 375; 130 U. S., 674; Carsonv. Carson, 40 Miss., 349; Potter\\u2019s Dwarris on Statutes, 206, 207. ' The statute is mandatory. Kochv. Bridges, 45 Miss., 247.\\nJ. A. Blair, Allen & Robins, J. L. Finley and E. L. Russell, for appellee.\\nThe sixth plea sets up a substantial and sufficient compliance with the statute. The statute only requires that the post shall be sufficiently high, and that there shall be a board bearing the required inscription. These are the meager details. It cannot be contended that any board, however small, with the inscription however inconspicuous, would constitute a substantial compliance with the statute. There would be, perhaps, a literal compliance, but the purpose would be incomplete. Violating the spirit of a law by pretending to respect the letter, is a fraud no less criminal than an open violation of it. It is not less contrary to the intention of the legislature, and only shows a more artful and more deliberate malice. Dwarris on Statutes, 129. The sign used by defendant as fully reveals to a person approaching the crossing the whole situation as if he stood upon the crossing himself. A party may not disregard the law or substitute his own wisdom or device for its requirements, but we contend that, in the present case, the statute was complied with in substance and in spirit. Where the expression in a statute is particular, but the reason is general, the expression should be deemed general also. 1 Kent Com., 462; Bank v. Archer, 8 S. & M., 851.\\nThe law is highly penal, and should be strictly construed in favor of the citizen. 23 Am. & Eng. Ene. L., 315; 1 Bishop Crim. L., \\u00a7\\u00a7 224, 225; Dwarris on Statutes, 130. Statutes are construed with reference to the exigency calling them forth, the evils that existed and the remedy proposed by law. 45 Miss., 154.\\nOn the general subject, see Railroad Oo. v. Hemphill, 35 Miss., 21; 30 lb., 410; 26 II., 439; 3 How. (U. S.), 558; 5 Cranch, 3; 1 Pick., 248; 57 Am. Rep., 623; 63 Am. Dec., 139; 74 lb., 522.\\nThe plea was to the whole declaration. It was held good, and, as plaintiff declined to reply, it was proper to render judgment final. Tittle v. Bonner, 53 Miss., 583; Lamphin v. Nye, 43lb., 241; Evans v. Miller, 58 lb., 120; Code 1892, \\u00a7\\u00a7 671, 681.\", \"word_count\": \"1653\", \"char_count\": \"9489\", \"text\": \"Woods, J.,\\ndelivered the opinion of the court.\\nWhat was the object and intention of the lawmaking power in the enactment of \\u00a7 1050, code 1880? The object was to give greater security from perils by moving locomotives or trains to travelers at railroad crossings over highways. The intention was to require the railroad companies to give permanent warning of perils from collisions at crossings to the traveling public. The railroad companies were to be required to keep standing a suitable and simple device or signal of danger, that all who approached might be admonished of the peril of heedlessly going upon the track.\\nIt is familiar learning that, in the construction of statutes, courts chiefly desire to reach and know the real intention of the framers of the law, and, reaching and knowing it, then to adopt that interpretation which will meet the real meaning of the legislature, though such interpretation may be beyond or within, wider or narrower than, the mere letter of the enactment. The case in hand affords a striking example of the wisdom of carrying into effect the true meaning of the statute, rather than giving it a strict, literal*interpretation. By the sixth plea of the appellee it is averred that ' defendant [the railroad company] did cause two boards to be erected and kept up upon a post sufficiently high \\u2014 -to wit, of the height of fifteen feet, and of the width and thickness of eight by eight inches \\u2014 said board being of the length of nine feet, and of the width of ten inches, and attached to said post near its top, and both sides thereof in form of a double cross, with this inscription on both sides of said boards in letters as large as could be written thereon \\u2014 to wit: ' Railroad Crossing. ' Said post and cross and letters were so placed, erected, and maintained as to be plainly visible at a great distance from each approach along and upon said highways, ' ' etc. It is clear that, though the warning signal thus described in the sixth plea, is not within the letter of the statute, it is clearly within its spirit, and meets the meaning of the law and the intention of its maker. Having the intention of the legislature in enacting the statute, and the subject-matter to which it relates, we find that a literal interpretation will extend the operation of the act to eases which never were de signed to be included; and, so, it is our duty to restrain the operation of the law within narrower bounds than the literal terms import.\\nMoreover, a literal interpretation of the statute would enable the wilful contemner of the law' to violate it with impunity, for it is altogether possible for one to comply with the mere letter of the act and utterly disregard-its meaning. By a mere literal adherence to the words of the statute, a railroad company might erect a board a foot in length and an inch in width warning-travelers, in letters too small to be seen at any distance, in the very words of the act to ' Lookout for the Locomotive. ' ' And yet no legal mind would consent to this interpretation as correct, for it is familiar learning, also, on the other side, that a thing which is in the mere letter of a statute is not within- the statute unless it is also within the meaning of the act and within the intention of the legislature. Here, in this case just cited by way of illustration, to give effect to the meaning of the law and the purpose of the lawmaker, we must give the statute a larger construction than its mere words literally import. In the case at bar, as we have seen, to give effect to the meaning of the statute, we must restrain its operation to cases covered by its spirit.\\nThere was no error in the court's action in entering judgment final for appellee upon the overruling of the demurrer to the sixth plea, and upon appellants declining to plead further, for the reason that' this plea went to the very root of the controversy, and, being held good, further litigation, in any phase of the case, -would have been idle.\\nAffirmed.\"}" \ No newline at end of file diff --git a/miss/8835507.json b/miss/8835507.json new file mode 100644 index 0000000000000000000000000000000000000000..1554a3a599083ca61020078a010be37edaa8f38d --- /dev/null +++ b/miss/8835507.json @@ -0,0 +1 @@ +"{\"id\": \"8835507\", \"name\": \"S. L. Hearn et al. v. John T. Brogan\", \"name_abbreviation\": \"Hearn v. Brogan\", \"decision_date\": \"1886-10\", \"docket_number\": \"\", \"first_page\": \"334\", \"last_page\": \"339\", \"citations\": \"64 Miss. 334\", \"volume\": \"64\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:49:25.845126+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"S. L. Hearn et al. v. John T. Brogan.\", \"head_matter\": \"S. L. Hearn et al. v. John T. Brogan.\\n1. Liqtjob License, hocal option law. Form of petition for license thereunder. Objections thereto. Case in judgment.\\nAn election was beld in the County of C. under the local option law, approved March 11,1886, which resulted in favor of the sale of liquors., A petition was filed under this act which failed to set out that the applicant for license \\u201c is a male citizen,\\u201d as prescribed by the statute, but states his name to be \\u201c John T. Brogan,\\u201d and several times refers to him by using the pronoun \\u201c him.\\u201d The applicant did not present an individual petition for license, but signed a petition to that effect, together with those who recommended him, as required by the law. The petition was for a license to retail and sell liquors, without specifying in what quantities the applicant wished to sell. The petition was addressed to the authorities of a municipality who. only had authority to grant licenses to retail, and under \\u00a7 1097, Code of 1880, a license to retail is a license to sell in any quantity. Held, that these informalities present no valid reason against the issuance to the applicant of a license to retail liquors.\\n2. Same. Local option law. Effect of election under. Code of 1880 and amendments thereto. i\\n\\\"Where, under the \\u201clocal option\\u201d law, approved March 11,1886, an election is held and results in a majority against \\u2018\\u2018 the sale\\u201d of liquors, the effect is to suspend for the time prescribed in that act the former law for the regulation of the liquor traffic,hut if a majority he \\u201cfor the sale\\u201d the Code of 1880 and amendments thereto, as further amended by the act above referred to, constitute the law applicable to the liquor traffic. That act contains no express repeal of the code provisions, and, therefore, does not operate as a repeal, except in so far as it may be inconsistent with them.\\nAppeal from the Circuit Court of Clay County.\\nHon.. W. M. Rogers, Judge.\\nOn August 26, 1886, John T. Brogan presented to the. Board of Mayor and Selectmen of the City of West Point, in Clay County,, a petition for license to sell vinous and spirituous liquors as follows :\\n\\u201c Your undersigned petitioners, being real estate owners in said city, over the age of twenty-one years, do hereby recommend John T. Brogan, a resident in. said city and. county, to be a person of good reputation and moral character,, and a sober and suitable person to receive a license to retail and sell vinous, spirituous, and malt liquors in any quantity within said city, and we join with him in praying for a license for him and to him to sell the same in the two-story brick house on the southeast corner of Main and Commerce streets, in said city, now occupied by said L. Weiler.\\u201d\\nSigned by William. Parrish, John T.. Brogan, and thirty-nine others.\\n, On September 1,1886, S. L. Hearn and many others filed before the same body a counter-petition to the one above set out. On. September 4, 1886, the Board of'Mayor and Selectmen of West Point granted Brogan license to retail liquors in accordance with his petition, over the objection of the counter-petitioners, who ap-. peared and moved to dismjgs the. petition, (1) \\u201c because the said. John T. Brogan did not file before the said board such petition as was required by law before any such license \\\"could be granted; (2) because said petition does not show what kind of a license the said John T. Brogan desired, nor is the said petition by the said John T. Brogan; (3) because the said petition does not show in what quantity the said John T. Brogan desired a license to sell vinous and spirituous liquors.\\u201d The counter-petitioners appealed to the circuit court. The petitioner Brogan there appeared and moved the court to dismiss the appeal, \\u201c (1) because the appeal was not taken in the time required by law ; (2) because there was no application for appeal and no appeal taken as required by law; (3) because there is no appeal-bond on file approved as required by law; (4) because it does not appear from the record that there is any bill of exception to the action of the board of mayor and aider-men.\\u201d This'motion was sustained and the appeal dismissed. The counter-petitioners, Hearn et al., appealed to this court. The record nowhere states whether an election had been held in Clay County under the \\u201clocal option\\u201d law approved March 11, 1886, nor under what law petitioner seeks a license.\\nFred BeaU, for the appellants.\\nThe appeal was properly taken. The contestants did all that the law required them to do. McGee v. Beall, 63 Miss. 455.\\nThis petition is, I submit, insufficient in the following particulars :\\nFirst. Brogan does not appear by said petition to be a \\u201c male person.\\u201d On this point the record throughout is wholly silent. Nowhere in the record does it appear that the appellant was a \\u201c male person.\\u201d Rhodes v. Silk, 63 Miss. 308 ; Tally v. Grider, 66 \\u00c1la. 119; Loeb & Go. v. Duncan, 63 Miss. 89 ; Corbett v. Duncan, 63 Miss. 84; McGee v. Beall, 63 Miss. 578.\\nIt cannot be assumed that John is a male in these days, for no longer-does the name indicate the sex.\\nThe applicant did not comply with that part of the statute which says \\u201c said applicant shall make application in writing to the said board of supervisors or municipal authorities setting forth the place where said liquors are to, be sold, etc.\\u201d\\nThere is nothing in the record but the recommendation of the twenty-five real estate owners.\\nTrue, that recommendation is signed by a John T. Brogan, but it does not appear that he is the applicant. It is hardly to be as sumed that he would recommend himself, but the presumption would be that he is a real estate owner, as the paper states, one of the necessary twenty-five who recommend the applicant.\\nThe recommendation or application is to sell liquor in any quantity.\\nThere are two statutes upon the subject of retailing besides the act of 1886.\\nThe Code of 1880 is the general law; then the act of 1884 provides for the sale of liquors in any quantity over one gallon, and not exceeding five gallons. The application should state in what quantity the applicant desires to sell, but in the case at bar there is no such statement.\\nWhite & Fox, for the appellee.\\n1. The circuit court did not err in sustaining the motion to dismiss the appeal.\\n2. If this court should determine that the appeal was improperly dismissed, and that, instead of remanding the case, they should, on this appeal, consider the sufficiency of the petition for license, we say that the objections urged to this petition are utterly untenable and without authority. \\u25a0\\nTo the first objection we say that if it is true that, as counsel says, \\u201cit cannot be assumed that John is a male,\\u201d by ref\\u00e9rence to the petition, it will be found that the name John T. Brogan is referred to three times by the personal pronoun \\u201c him.\\u201d The petition, after recommending Brogan to be a suitable person- to receive the license, says: \\u201cWe join with \\u2018him\\u2019 in praying a license for \\u2018 him,\\u2019 and to \\u2018 him \\u2019 \\u201d to sell the same. Though we never heard of one, there may be women named John, but we are satisfied that even the most illiterate never yet referred to the name of a woman by the personal pronoun \\u201chim.\\u201d\\nIf it must appear as a jurisdictional fact, which we deny, has this court any doubt, from the reading of the -petition, that applicant is a male person ?\\nTo the second objection that John T. Brogan made no application in writing, we say that this application is not required to be separate from the petition of real estate owners.\\nTo the third objection that the petition should state in what quantity applicant desired to.sell, we say, first, that this objection was strenuously urged in the case of McCfrary v. Rhodes & Silk, 63 Miss. 308, and the court did not even consider it, and we say, secondly, that even if the objection was tenable then, it is of no force under the local option law, that act abolishing all distinction, and \\u00a7 6, which contains the provision in reference to the petition for license, uses the word sell all the time instead of retail, which was used in the code.\\nIt provides for a petition for license to sell, the very word used in applicant Brogan\\u2019s petition.\\nWhere there has been no election held, the code and acts amend-atory thereof govern. When an election is held they no longer govern, because the local option act makes every provision with the greatest particularity for the minutest details in the granting and issuing of license.\", \"word_count\": \"2104\", \"char_count\": \"11950\", \"text\": \"Campbell, J.,\\ndelivered the opinion of the court.\\nThe result attained by dismissing the appeal was correct, whether the appeal should have been dismissed or not, for on the merits, as presented by the record, the law is with the appellee. Therefore we decline to decide as to the validity of the appeal, merging it in the paramount question, whether it could have been available.\\nThat it was not avered that John T. Brogan is \\\" a male person,\\\" and that he and the requisite number of those required joined in one petition for license, instead of his having one and his supporters another, and that the petition is for license to sell, without specifying in what quantities, constitute no valid objection. One licensed to retail may sell in any quantity. Code, \\u00a7 1097. The only license the municipal authorities could grant was to retail, and as that confers the right to sell, there is no reason why applying in terms for a. license to sell generally should be bad. W\\u00e9 assume that an election has been held in Clay County under the act of 1886, and that it resulted in favor of the gale of liquors, because the record shows an attempt to comply with that act, which would be inappropriate if such election had not been held. This being so, the code and amendments, as further amended by the act of 1886, constitute the law applicable.' It is not true that an election under the late law abrogates the former law. If the result is against the sale, the former law is thereby suspended for the time, and the new law governs with its provisions and penalties for its violation, but if the result is for the sale, the former law remains in full force, modified by the new as to the terms on which license may be obtained. Were this not true, we would have this result: In an election favorable to the sale there would be no penalty for selling vinous and spirituous liquors in any quantity, for the only penalties provided by the new law are for violating its provisions ; if the result of the election is against the sale, and in case of contrary result, the code alone or former amendatory laws must be looked to for penal sanctions against the unlicensed traffic in liquor.\\nThere is no express repeal of former laws by the late act, and as repeals by implication are never favored, the new law must be held to displace or suspend the former only to the extent of inconsistency between them. There is nothing in the latter enactment inconsistent with continued operation of former statutes, except as stated above in this opinion. The express declaration in the last act in \\u00a7 6 that \\\" in case license be granted said applicant, he shall, before commencing the sale of such liquors, pay the tax and give the bond, as now provided in chapter 39, Revised Code 1880, and in \\u00a7 7: \\\" That the acts in relation to the sale as found in Code of 1880 and acts amendatory thereof, shall govern and control the granting and issuance of license to sell such liquors,\\\" were unnecessary and serve no purpose, except to suggest that perhaps the legislature, in expressing these things of former laws as to continue, manifested a purpose to exclude all else on the familiar rule expressed by the maxim qxpressio unius, exolusio alterius est; but while these expressions give countenance to the view contended for by some, they are not sufficient to overcome the fact that there is no express repeal of former laws, and the rule that repeals by indirection' and implication are not. favored.\\nAffirmed.\"}" \ No newline at end of file diff --git a/miss/8836668.json b/miss/8836668.json new file mode 100644 index 0000000000000000000000000000000000000000..26db9a650264dfe7521fb649758f9507bec97e6c --- /dev/null +++ b/miss/8836668.json @@ -0,0 +1 @@ +"{\"id\": \"8836668\", \"name\": \"Jacob L. Klaus v. Ephraim T. Moore\", \"name_abbreviation\": \"Klaus v. Moore\", \"decision_date\": \"1900-03\", \"docket_number\": \"\", \"first_page\": \"701\", \"last_page\": \"705\", \"citations\": \"77 Miss. 701\", \"volume\": \"77\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T18:50:38.234281+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jacob L. Klaus v. Ephraim T. Moore.\", \"head_matter\": \"Jacob L. Klaus v. Ephraim T. Moore.\\n1. Limitation of Aotious. Promissory note. Death of maker. Code 1893, ? 2753.\\nWhere the maker of a promissory note dies less than one year before the note is barred by limitation, the bar will not become complete, under code 1892, so providing, until on\\u00a9 year after his death.\\n2. Same. Apparent bar. Code 1892, \\u00a7 2462. Laws 1896. p. 106.\\nTlie provisions of code 1892, \\u00a7 2462, amended (Laws 1896, p. 106), providing' that if a lien appear by the record thereof to> be harred by limitation the lien shall cease as to creditors and subsequent purchasers for valuable consideration without notice, unless within six months after the remedy is so barred the fact of its renewal or extension be made of record, does not operate to prevent an ext\\u00e9nsion under code 1892, \\\\ 2753, providing therefor, if the debtor die before the debt is barred.\\n3. Same.\\nThe provisions of code 1892, \\u00a7 2462, amended (Laws 1896, p. 106), supra, can be invoked only by creditors or subsequent purchasers for a valuable consideration without notice who- parted with something of value on the appearance of the record.\\n4. Statute oe Fbauds. Trusts. Code 1892, 14231.\\nThe assignment of a promissory note, secured by a recorded lien, although the lien be transferred as an incident of the debt, is not within the statute of frauds, code 1892, \\u00a7 4231, requiring grants, assignments or transfers of any trust or confidence to be in writing.\\nFeom tbe circuit court of Lowndes county.\\nHoN. Eugeke O. Sykes, Judge.\\nKlaus, the appellant, was plaintiff in the court below; Moore, the appellee, was defendant there. The action was replevin for personal property. The facts are sufficiently stated in the opinion of the court.\\nOrr & Harrison, for appellant.\\nThe lien of Mrs. Harris and her assignee, Moore, was barred by the statute of limitations of six years. The assertion of Moore\\u2019s claim, and the sale by the trustee, was not until April 21, 1889, more than six years. Section 2462, code 1892, provides that as to Klaus this deed of Mrs. Harris had lost its vitality; it \\u201cceased,\\u201d it was to have \\u201cno effect as to creditors.\\u201d But if \\u00a7 2462 was doubtful, the act of 1896, p. 106, made it certain; the renewal must have been by Spencer, and that act must have been attested on the record by the clerk.\\nThe old trust deed of 1892 was not assigned in writing to Moore until the'12th of January, 1899, and after notice of Klaus\\u2019 claim.\\nNow, this assignment in writing by Mrs. Harris, not having been executed until January 12, 1899, can have no retro\\u2022active force, so as to interfere with the lawful lien which Spencer Williams had executed to Klaus on April 21, 1898. If that is not the meaning of \\u00a7 4231, code 1892, we don\\u2019t know what its meaning is.\\nWilliam Baldwin, for appellee.\\nCode 1892, \\u00a7 2462, by express terms, applies only to purchasers for value and creditors, after the bar of the statute appears from the record. Klaus was neither. His rights arose, and his money parted with, while the record shows the existence of Mrs. Harris\\u2019 lien.\\nThe purpose of code 1892, \\u00a7 4231, is, apparent, and it can have no application here, where the trust is a mere incident to or security for a note. In such case, the assignment of the note is the real assignment. The trust deed need not be assigned at all; it follows as an incident to the assignment of the note.\", \"word_count\": \"1122\", \"char_count\": \"6331\", \"text\": \"CalhooN, J.,\\ndelivered the opinion of the court.\\nOn February 5, 1892, Spencer Williams delivered his promissory note of that date, payable to Mrs. Henrietta Harris on January 1, 1893, and secured its payment by a conveyance in trust of the property involved in this litigation, 'which was duly recorded.\\n' Spencer Williams died in September, 1898.' On January 12, 1899, Mrs. Harris assigned the note to E. T. Moore, the appellee, who bought the prop\\u00e9rty at trustee's sale made under that trust conveyance April 21st, 1899, and took possession.\\nIn opposition to this title, Klaus shows that he is trustee under a conveyance of the same property to him to secure A. Kraus, executed by Spencer Williams May 20th, 1898, and, to enforce his claim, he brought his action of replevin against Moore, and lost in the court below.\\nHe says that the debt to Mrs. Harris, evidenced by the promissory note, was barred by the statute of limitations of six years. This is plainly a mistake. That note became due in January, 1898, and Williams, the maker of it, having died in September, 1898, by code, \\u00a7 2753, it had a year to run after his death,,so that it would not become barred until September, 1899.\\nBut, he says, even if not barred, the lien of Mrs. Harris, under code, \\u00a7 2462, as amended by the acts of 1896, p. 106, ceased to have effect because after January 4, 1899, \\\"it appeared on the face of the record to be barred by the statute of limitation,\\\" and no \\\"renewal or extension\\\" appeared on the margin of the record.\\nThat statute must be considered in connection with others. Williams, the grantor, under whom both parties claim, was dead before the six years elapsed. He could not, therefore, \\\"renew or extend,\\\" or agree to renew or extend, and, by code, \\u00a7 2753, one year from his death is to be added to the six years. So the bar was not complete until September, 1899, before which date the trust was enforced.\\nBut \\u00a7 2462 was enacted to protect creditors and purchasers who parted with something on the appearance of the record, and cannot be availed of by Klaus. He took his junior trust convey\\u00e1nce before there was the appearance of any bar on the record, and is neither creditor nor subsequent purchaser within the meaning of this statute.\\nHe also invokes code, \\u00a7 4231, in the statute of frauds, in support of his contention that the assignment by Mrs. Harris to Moore is void. This statute has no sort of relevancy. It refers to \\\"grants, assignments, or transfers of any trust or confidence,\\\" and requires such to'be in writing, acknowledged, and recorded.\\nThere is nothing of that sort here. There is no trust or confidence between Mrs. Harris and Moore. She simply assigned to him a promissory note and the security she had for its payment. She did not assign to him any trust. Even if the assignment were void, Klaus could not complain. Mrs. Harris only could complain. If it were void, then the title remained in Mrs. Harris' trustee, and he sold to Moore.\\nAffirmed.\"}" \ No newline at end of file diff --git a/miss/8838506.json b/miss/8838506.json new file mode 100644 index 0000000000000000000000000000000000000000..02eb9b403323904f8840ccac70b35c3426713561 --- /dev/null +++ b/miss/8838506.json @@ -0,0 +1 @@ +"{\"id\": \"8838506\", \"name\": \"John Gartman et al., Administrators of Zebulon E. Pendleton, deceased, vs. Samuel Pouns and others, Heirs at law of Joseph Pouns, deceased\", \"name_abbreviation\": \"Gartman v. Pouns\", \"decision_date\": \"1849-01\", \"docket_number\": \"\", \"first_page\": \"290\", \"last_page\": \"292\", \"citations\": \"12 S. & M. 290\", \"volume\": \"20\", \"reporter\": \"Mississippi Reports\", \"court\": \"High Court of Errors and Appeals of Mississippi\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:58:25.952481+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John Gartman et al., Administrators of Zebulon E. Pendleton, deceased, vs. Samuel Pouns and others, Heirs at law of Joseph Pouns, deceased.\", \"head_matter\": \"John Gartman et al., Administrators of Zebulon E. Pendleton, deceased, vs. Samuel Pouns and others, Heirs at law of Joseph Pouns, deceased.\\nThe heirs of P. having filed their bill to set aside a purchase of part of the real estate of their ancestor by Z., his administrator, under a fraudulent judgment against the administrator, to which bill S, the vendee of the ad ministrator, was a party, and charged with notice of the fraud of the administrator, after the cause was argued and submitted to the chancellor for a decree, the administrators of Z., who had died before the institution of the suit, sought by petition to be made parties to the litigation ; held, that the subject matter in controversy, lay between the heirs of P. and S., the vendee of the administrator, and at so late a stage in the cause, it was not error to refuse the representatives of Z., the deceased administrator, to be made parties, since any decree in the suit between the heirs of P. and the vendee of Z. could not prejudice any defence, which Z.\\u2019s administrators might legally possess to any action to be brought by S. for the recovery of the purchase money paid by him to Z. for the land.\\nOn appeal from the southern vice-chancery court at Monticello; Hon. James M. Smiley, vice-chancellor.\\nThis was a bill in chancery, filed by Samuel Pouns and others, heirs at law of Joseph Pouns, deceased, against the heirs at law of Zebulon E. Pendleton, who, in his lifetime, was co-administrator with Samuel Pouns of Joseph Pouns, and against Henry Sones. After the cause had been submitted in the court below for final decree, John Gartman and E. A. Pendleton, administrators of Zebulon E. Pendleton, deceased, filed their petition to compel the complainants to make them parties to the litigation; this was refused by the vice-chancellor, who decreed in favor of the complainants.\\nThe objects of the bill are sufficiently stated in the opinion of-the court.\\nZebulon E. Pendleton\\u2019s administrators sued out this writ of error; Sones filed a release of error.\\nFoute, for plaintiffs in error,\\nCited Story, Eq. PI. 194, \\u00a7 160; lb. 206, \\u00a7 170, 174, 177, 177 a, 179, 180; lb. \\u00a7 72, 73, 74, 75, 76, 76 a, 77, 236, 236 a, 540, 541, 885, 905; Mitfi Ch. PL sec. 8, p. 164; Barb. Ch. Pr. 160, 164, 165; 1 How. (Miss.) Rep. 333; Truly v. Lane, 7gS. & M. 325 ; 2 Story, Eq. Jur. \\u00a7 788, 789,1526; lb. \\u00a7 1217, 1219, 1227, 1233.\\nJohn D. Freeman, for defendant in error.\", \"word_count\": \"785\", \"char_count\": \"4520\", \"text\": \"Mr. Justice Thacher\\ndelivered the opinion of the court.\\nThe bill charges, that Joseph Pouns died intestate, seized of a tract of land; that Samuel Pouns and Zebulon E. Pendleton administered upon his estate; that Pendleton, while administrator, fraudulently procured one Smith to institute a suit upon a promissory note made by said Joseph Pouns, and held and owned by said Pendleton; that by agreement, no defence was made to said suit, but a judgment by default of appearance suffered ,\\u2022 that the execution on said judgment was levied by Pendleton's instructions to the sheriff, upon a particular tract of land, and purchased by said Pendleton at the sale for the sum of $160, which land was really worth the sum of $4000; that said Pen-dleton took the sheriff's deed, and caused the execution to be credited with but the sum of $160, the judgment being for the sum of $ 1107-07; and that Pendleton subsequently sold the land to one Sones for the sum of $3900.\\nThe vice-chancellor decreed, setting aside the sale, that Sones's title was void, (fee.\\nThe appellants assign, as error, want of notice to Sones\\u2022 but this is answered by his admission of notice filed in the cause, with his release of all errors upon this ground.\\nAfter the cause had been argued and submitted to the vice-chancellor, a petition was presented by the administrators of Zebulon E. Pendleton, to compel- the complainants to make them defendants to said bill, which was refused and rejected by the vice-chancellor, and is now assigned for error.\\nThe subject matter in controversy lay between the heirs of Pouns and Sones, the purchaser of the land from' the administrator Pendleton. It was not error to refuse the petition of Pen-dleton's administrators made at so late a stage of the cause, and which, if granted, must have protracted litigation, especially when any decree between those heirs and Sones will not prejudice any defence which those administrators may legally possess to any action to be brought by Sones for the recovery of the purchase money, paid by him to Pendleton for the land.\\nDecree affirmed.\"}" \ No newline at end of file diff --git a/miss/8839594.json b/miss/8839594.json new file mode 100644 index 0000000000000000000000000000000000000000..434fdf758f714833f49e9a35b9267c38db84f6d6 --- /dev/null +++ b/miss/8839594.json @@ -0,0 +1 @@ +"{\"id\": \"8839594\", \"name\": \"W. M. Coltrane v. J. J. Cox et al.\", \"name_abbreviation\": \"Coltrane v. Cox\", \"decision_date\": \"1882-10\", \"docket_number\": \"\", \"first_page\": \"537\", \"last_page\": \"541\", \"citations\": \"60 Miss. 537\", \"volume\": \"60\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T23:32:07.745202+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"W. M. Coltrane v. J. J. Cox et al.\", \"head_matter\": \"W. M. Coltrane v. J. J. Cox et al.\\nTaxes. Lands sold to the State. List filed where. Abatement Aet eonstnied.\\nThat provision of the act of December 22, 1874 (Acts 1875, p. 49), which required the lists of land sold to the State for taxes to be filed in the office of th\\u00e9 clerk of the Circuit Court, was repealed by sect. 20 of the Abatement Act of 1875 (Acts 1875, p. 11), which was a general provision, applicable, not only to the lands mentioned in the first section of the latter act, but to all other lands sold for taxes under the revenue laws of the State, and again made the chancery clerk\\u2019s office the proper repository for such lists, as it was under the Code of 1871.\\nAppeal from the Chancery Court of Clay County.\\nHon. F. A. Critz, Chancellor.\\nOn the second Monday of March, 1876, the tax-collector of Clay County sold to the State a certain tract of land for the taxes due thereon for the year 1875. The collector filed the list of lands sold to the State on that day, embracing the tract referred to, in the office of the chancery clerk of the county. No person having redeemed this tract of land within the time allowed therefor by law, W. M. Coltrane was allowed, on the 14th of February, 1878, to purchase the State\\u2019s title thereto, and the auditor of public accounts made him a deed thereof. In November, 1881, Coltrane filed the bill in this case against J. J. Cox and othei\\u2019s, who claimed an interest in the land, for the purpose of having his title confirmed and quieted. The bill set forth the facts connected with the sale of the land to the State and the complainant\\u2019s purchase from the State, including the fact that the list of lands sold by the tax-collector to the State, on the second Monday of March, 1876, was filed in the office of the chancery clerk of the county. The de fendants demurred to the bill on the ground that the complainant had no title, for the reason that the tax-collector\\u2019s sale oftheland in question did not vest the State with any title, because the list of lands sold was filed in the office of the chancery clerk. The demurrer was sustained and the complainant appealed.\\nL. F. Bradshaw, for the appellant.\\nUnder the Code of 1871, the lists of land sold to the State were to be filed in the chancery clerk\\u2019s office. This was changed, however, and the lists were subsequently required to be filed in the circuit clerk\\u2019s office. The Abatement Act of 1875, pp. 11-22, restored the provisions of the Code of 1871 in this respect, and this I think is the proper construction of the act. The lists of lands sold to the State after the passage of the act of 1875 were uniformly filed in the chancery clerk\\u2019s office instead of that of the circuit clerk. Sect. 12 of that act required that the lists of lands made at any tax-sale should be filed with the chancery clerk. And this, taken in connection with sects. 20 and 21, show conclusively that the tax-collector should file the lists of land with the chancery clerk. Otherwise sects. 5, 9, 13, 14, 15, 16, 17, 20 and 21 have no meaning. Sect. 16 of said act provides for the sale of any lands for taxes and the time thereof, and \\u201c that the said times-shall remain for all subsequent fiscal year\\u2019s, until otherwise-changed by law.\\u201d Acts 1875, sect. 16, p. 19. And the said sect. 16 further provides when lands shall become delinquent, but excepts the lands delinquent for 1874, etc. Whether the Abatement Act may be said to be general or not, it certainly applied to futux'e sales and required that at such subsequent sales, the lists of lands sold to the State should be filed in chancery clerk\\u2019s office. The acts of the called session of 1875, p. 12, seem to indicate that the Legislature regard the act of March 1, 1875, as general. The case of Garuthers v. MoLaran, 56 Miss. 371, shows that the act of March 1, 1875, was general in certain respects and referred to all future sales. See also the cases of Wolf v. Murphy, ante, p. 1; Cochran v. Baker, ante, p. 282.\\nBarry & Becket, for the appellees,.\\nThe act of December 22, 1874, provides that the lists of lands sold to the State for taxes shall be-filed with the circuit clerks. Does the Abatement Act change this? Clearly not. Sect. 1, p. 11, provides \\u201c for the abatement of all taxes upon all lands now claimed as forfeited to the State or purchased by the State for taxes.\\u201d' The bill shows that the land in controversy was not even assessed till 187 6, and hence it was not \\u2018 \\u2018 claimed or forfeited to the State for any taxes prior to 1874.\\u201d Sect. 9 provides for the sale of said lands, referring, of course, to the land forfeited to the State for taxes prior to 1874. Acts 1875, sect. 9, p. 14. Sect. 10, p. 15, only provides that \\u201c changes in the revenue laws by amendments of the Code of 1871, and in the laws 1874, 1873 and 1872, by changes now provided for, and in force, shall govern the form and manner of sale of said lands.\\u201d There is no sense in this section, but if there is any one thing we can arrive at, it is that the word \\u201c said \\u201d in these sections keeps referring back to the land that had been forfeited to the State for taxes prior to 1874. Now, sect. 12, pp. 15, 16, provides that the lists of land sold to the State, and deeded to individuals, \\u201c shall immediately upon such sale and time, provided for in sect. 9, of this act, be filed,\\u201d etc. Now \\u201csuch\\u201d sale in express terms refers to the sale provided for in sect. 9, p. 14, and sect. 9 provides for the sale of \\u201c said \\u201d lands, and \\u201c said \\u201d lands refers to the land mentioned in sect. 1, p. 11. Sect. 13, pp. 16-17 refers to the land \\u201c so \\u201d \\u2022 sold, and \\u201c such \\u201d lands and \\u201c said \\u201d lands, and to make this perfectly plain, this section when it provides for the \\u201c equity of redemption,\\u201d in express terms also provides for the \\u201c equity of redemption \\u201d of lands held by the State for taxes from any other sale \\u201c of lands delinquent for said taxes of 1874.\\u201d The only other section relied on by appellant is sect. 20, pp. 20-21. In the first place, it is only the duties of the Ncii-cuit clerks\\u2019 which are not in conflict with this act, that are to be performed by the chancery clerks, and it is certainly a conflict between sect. 2, act of December 22, 1874 (Acts 1875, p. 49), and this sect. 20, of the Abatement Act, to require the matters to be attended to by the chancery clerk, for the act of 1874 required them to be performed by the circuit clerk. In the second place it is not the duties that are to be performed at all, but it is \\u201c all parts of chap. 30, and other laws of 1874, 1873, andl872,\\u201d \\u201c not in conflict with this act.\\u201d Now, we admit, it is a wonderful performance for a chancery clerk to be \\u201cperforming laws,\\u201d and if those clerks had not been saved by the exception that the laws they are to perform shall not be in \\u201c conflict with this act,\\u201d they would have been at their wits\\u2019 end. And the latter part of this section even provides that the Code of 1871 shall not affect these laws of 1872, 1873, and 1874. So, if there ever was a law left intact, it was these laws of 1872, 1873, and 1874. But in the third place, there is not even a hint in this sect. 20 that the sheriffs shall file any lists with the chancery clerks. There is not a word in it about the duties of the sheriffs or tax-collectors.\", \"word_count\": \"1771\", \"char_count\": \"9553\", \"text\": \"Chalmers, J.,\\ndelivered the opinion of the court.\\nThe lands involved in this controversy were sold to the State on the 12th of March, 1876, for the unpaid taxes of 1875, and the list evidencing this fact was filed by the tax-collector with the chancery clerk of the county. It was held by the chancellor that it should have been filed with the circuit clerk, and that by reason of the filing in an improper place, the State failed to acquire title.\\nBy the act of December 22, 1874 (Acts 1875, p. 49), the circuit clerk's office was made the proper receptacle of the list of lands sold to the State for unpaid taxes, but this, it is insisted by appellant, was changed by sect. 20, of the \\\"Abatement Act \\\" of 1875. Acts 1875, pp. 11-20.\\nIf any proposition can be confidently asserted with reference to that celebrated piece of legislation, it seems clear that by its twentieth section the chancery clerk's office was made the place of deposit for the list of lands sold to the State ; but this, it is urged by the appellee, was not a general provision, universal in its operations, but rather special in its character, and applicable only to the particular class of lands specified in the first section of the act, for the abatement of the taxes on which the act was passed, to wit, those lands to which the State held title by reason of the non-payment of taxes due prior to the year 1874. With that diffidence which an attempt to construe the Abatement Act must ever inspire in the breast of the boldest judge we reject this view. While the greater part of it does relate exclusively to the class of lands referred to in the first section, there are many of its clauses which are general in their character and this is particularly true, as intimated by us in Caruthers v. McLaran, 56 Miss. 371, of its later sections, and seems plainly so of sect. 20. Our opinion is that the effect of that section was to restore the chancery clerk's office to its original position under the Code of 1871. as the proper place of deposit for the lists of all lands sold to the State for taxes, and such was the practical construction placed upon it at the time by the auditor of public accounts and the clerks and sheriffs throughout the State.\\nDecree reversed and cause remanded for decree in accordance with this opinion.\"}" \ No newline at end of file diff --git a/miss/8840410.json b/miss/8840410.json new file mode 100644 index 0000000000000000000000000000000000000000..cae9b048d3d81f4f838f372dca5936f244cceb74 --- /dev/null +++ b/miss/8840410.json @@ -0,0 +1 @@ +"{\"id\": \"8840410\", \"name\": \"The Commercial Bank of Manchester vs. Adamson Waters et al.\", \"name_abbreviation\": \"Commercial Bank of Manchester v. Waters\", \"decision_date\": \"1848-01\", \"docket_number\": \"\", \"first_page\": \"559\", \"last_page\": \"559\", \"citations\": \"10 S. & M. 559\", \"volume\": \"18\", \"reporter\": \"Mississippi Reports\", \"court\": \"High Court of Errors and Appeals of Mississippi\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T20:37:24.354696+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"The Commercial Bank of Manchester vs. Adamson Waters et al.\", \"head_matter\": \"The Commercial Bank of Manchester vs. Adamson Waters et al.\\nAn equity of redemption in slaves is not the subject of execution ; a levy, therefore, on such equity should be set aside.\\nA supersedeas is not the proper remedy for the violation, by a plaintiff in execution, of an injunction against the issuance of execution; the proper corrective is by an attachment against the party, or his attorney, for contempt.\\nIn error from the circuit court of Yazoo county; Hon. Robert C. Perry, judge.\\nThe facts are sufficiently stated in the opinion of the court.\\nW. R. Miles, for plaintiff in error,\\ncited 3 Jac. I., c. 8; 12 Car. II., c. 2; 16 and 17 Car. II., c. 8, \\u00a7 3; H. & H. Dig. 538, $39, p. 341, $60; 4 S. & M. 484-490; lb. 513-175.\\nR. S. Holt, for defendants in error,\\non the point that the equity of redemption could not be levied on, cited 4 S. & M. 163; and argued at length, that the supersedeas was properly retained, because of the injunction.\", \"word_count\": \"330\", \"char_count\": \"1845\", \"text\": \"Mr. Justice Clayton\\ndelivered the opinion of the court.\\nA motion was made in the circuit court of Yazoo, to set aside a levy in this case upon an equity of redemption in slaves, and to supersede the execution, because the bank was at the time under a quo warranto and injunction, under the law of 1843. The court granted both motions.\\nIt is settled, that an equity of redemption in personalty, is not the subject of execution sale; it was right, therefore, to set aside the levy. Thornhill v. Gilmer, 4 S. & M. 153.\\nBut for the violation of the injunction, even if there were a valid injunction, the remedy was not by supersedeas. An attachment against the party, or the attorney, was the proper corrective. The question as to the validity of the injunction, would thus have been directly presented. For this reason, the judgment is reversed, and the supersedeas discharged.\\nJudgment reversed.\"}" \ No newline at end of file diff --git a/miss/8990796.json b/miss/8990796.json new file mode 100644 index 0000000000000000000000000000000000000000..ac63bb19af2e0085e46a2a7163abae70130bc0d8 --- /dev/null +++ b/miss/8990796.json @@ -0,0 +1 @@ +"{\"id\": \"8990796\", \"name\": \"Anton FOSTER v. STATE of Mississippi\", \"name_abbreviation\": \"Foster v. State\", \"decision_date\": \"2005-06-02\", \"docket_number\": \"No. 2004-KA-00964-SCT\", \"first_page\": \"12\", \"last_page\": \"17\", \"citations\": \"919 So. 2d 12\", \"volume\": \"919\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:27:24.346032+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before SMITH, C.J., EASLEY and GRAVES, JJ.\", \"parties\": \"Anton FOSTER v. STATE of Mississippi.\", \"head_matter\": \"Anton FOSTER v. STATE of Mississippi.\\nNo. 2004-KA-00964-SCT.\\nSupreme Court of Mississippi.\\nJune 2, 2005.\\nRichard B. Lewis, Clarksdale, attorney for appellant.\\nOffice of the Attorney General by Deirdre McCrory, attorney for appellee.\\nBefore SMITH, C.J., EASLEY and GRAVES, JJ.\", \"word_count\": \"2615\", \"char_count\": \"15166\", \"text\": \"EASLEY, Justice,\\nfor the Court.\\n\\u00b6 1. Anton Foster was convicted and sentenced in the Circuit Court of Coahoma County, Mississippi, for Count I armed robbery and Count II attempted aggravated assault. The trial court denied Foster's motion for judgment non obstante verdicto or alternatively for a new trial. On appeal, Foster contends the trial court erred in (1) denying his motion for directed verdict and motion for judgment notwithstanding the verdict (J.N.O.V.), or alternatively, motion for a new trial and (2) allowing a rebuttal witness to testify.\\nFACTS\\n\\u00b62. Percy Dukes testified that, on the night of May 15, 2003, he went to a friend's home in Friar's Point to repay a personal loan of $10. Dukes's friend, \\\"Little Woods,\\\" was not at home. Dukes encountered Foster who asked him for a ride \\\"uptown.\\\" Dukes gave Foster a ride. Dukes went into Willie's Food and Games, a local club, where he shot a couple of games of pool. When Foster got out of the car, Dukes did not see where he went. As Dukes left the club, he saw Foster outside. Dukes estimated that it was between 10:30 p.m. and 11:00 p.m. Foster asked Dukes for another ride.\\n\\u00b6 3. Foster asked for a ride back to his mother's house. Dukes testified that he allowed Foster to ride back with him since he was going back that direction to see if Woods was home. Foster got out and left. Dukes went to Woods's house. Dukes's friend still had not made it back home. As Dukes began to leave, he noticed that his tire had gone flat. Dukes turned around in Woods's yard and squatted down to change the flat tire.\\n\\u00b6 4. Foster called Dukes's name from the road and waved a gun and paced up and down the road. Foster asked Dukes if he had any money and told Dukes to empty his pockets. Dukes pulled out his billfold and laid it on the hood of the car. Foster went through the billfold and gave it back. He then searched through Dukes's car.\\n\\u00b6 5. Foster told Dukes to leave his car and catch a ride with Reggie Robinson. Robinson had pulled up behind Dukes's car and allowed him to use his lug wrench. Robinson went back to his truck. When Dukes said he was not going to leave his car, Foster told him that he was not kidding and that he would break out all of the car's windows.\\n\\u00b6 6. When Foster bent down to pick up something, Dukes jumped inside his ear and drove off. Foster began shooting at Dukes and the car. Dukes testified that Foster shot five or six times at the car. Shots hit the car causing Dukes to be cut by broken glass.\\n\\u00b6 7. Dukes testified that he went to the home of his friend, Linda Chatman, and he called the police. The police arrived and transported Dukes to the police station. Dukes's wife came and took him home. Dukes subsequently identified Foster as the assailant at an \\\"in person\\\" lineup at the Coahoma County Sheriffs Department. At trial, Dukes also identified Foster for the record as the man he had been referring to in his testimony that robbed him and shot at him.\\n\\u00b6 8. Robinson testified that he came upon Dukes beside the road. Dukes was alone. Robinson left to go home and get a lug wrench. When he returned, two men where there. Robinson got out of his truck and offered to help. The men were exchanging words while he operated the lug wrench. Robinson testified that he became concerned and told Dukes he could have the wrench and headed back to his truck. Robinson saw someone pointing a gun. He testified that he left and heard shots fired as he was leaving. Robinson could not positively state whether the other man was Foster or not.\\n\\u00b6 9. Joshua Brady testified that on May 15, 2003, he saw fire coming from a gun and saw a car coming around the block. At trial, Brady recanted his statement given to the police. He testified that he never told the police that he saw Foster with a gun. After further questioning, Brady did admit that he told the police that he saw Foster with a gun. However, he testified that he had lied. Brady who was age fifteen at the time of trial testified that he was told that he would not have to go to training school if he named Foster. Brady testified that he was facing a burglary charge. Brady testified that he went to training school anyway.\\n\\u00b6 10. Roosevelt Pryor testified as Foster's only alibi witness. He testified that on the evening of May 15, 2003, he was with Foster. According to Pryor, he and Foster along with two other individuals were at Club Max in Clarksdale from 8:30 p.m. to 12:30 a.m. and did not return to Frair's Point until 12:45 a.m. They never went inside the club. Pryor testified that he heard Foster had turned himself in and was arrested. He knew Foster was in jail. On cross-examination, Pryor admitted that he never contacted the authorities when Foster was arrested. Pryor never came forward to inform the police that Foster could not have done the alleged crimes as he was with him that evening.\\n\\u00b6 11. Foster testified that he sat outside Club Max with Pryor, Kavin Barnard and Steve Magsby on May 15, 2003. According to Foster, they left the Max at \\\"12-something.\\\" Foster testified that he went home and went nowhere else.\\nDISCUSSION\\nI. Motion for J.N.O.V., or Alternatively, Motion for a New Trial\\n\\u00b6 12. Foster moved for a directed verdict at the close of the State's case-in-chief. The trial court denied Foster's motion. Foster also made a post-trial motion for judgment notwithstanding the verdict, or alternatively, motion for a new trial, and the trial court also denied that motion.\\n\\u00b6 13. The standard of review for a denial of a directed verdict and a motion for a judgment notwithstanding the verdict is the same. Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997). We employ de novo review of a trial court's decision regarding a motion for directed verdict. Fulton v. Robinson Indus., Inc., 664 So.2d 170, 172 (Miss.1995). As such, we examine the evidence in the record in the same light as the trial court. Id. We consider the record at the last time the trial court had the issue before it here, on the motion for J.N.O.V.\\n\\u00b6 14. Denials of peremptory instructions, motions for directed verdict and motions for judgment notwithstanding the verdict each challenge the legal sufficiency of the evidence presented at trial and each are reviewed under the same standard. Community Bank v. Courtney, 884 So.2d 767, 772 (Miss.2004). This Court has held that under its standard of review, denial must be reviewed as follows:\\nThis Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered points so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required.\\nId.\\n\\u00b6 15. Foster argues that the trial court erred in denying of his motion for J.N.O.V., or in the alternative, for a new trial since the verdict was against the overwhelming weight of the evidence. This Court has made a distinction between the review of the denial of a motion for J.N.O.V. based on the legal sufficiency of the evidence and review of a motion for new trial based on the weight of the evidence.\\nA. Legal Sufficiency\\n\\u00b6 16. Foster was convicted of armed robbery (Count I) and aggravated assault (Count II). Miss.Code Ann. \\u00a7 97-3-79 defines robbery with use of a deadly weapon as:\\nEvery person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery .\\nMiss.Code Ann. \\u00a7 97-3-7(2) sets forth the elements of aggravated assault. The statute states, in part:\\nA person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm .\\n(emphasis added).\\n\\u00b6 17. On the issue of the legal sufficiency of the evidence, this Court held in Pinkney v. State, 538 So.2d 329, 353 (Miss.1988), vacated on other grounds, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990), that reversal can only occur when evidence of one or more of the elements of the charged offense is such that \\\"reasonable and fair minded jurors could only find the accused not guilty.\\\" (quoting Wetz v. State, 503 So.2d 803, 808 (Miss.1987)). A motion for J.N.O.V. challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). \\\"[T]his Court properly reviews the ruling on the last occasion the challenge was made in the trial court.\\\" Id. at 778. Here, this occurred when the trial court denied Foster's motion for J.N.O.V. See id.\\n\\u00b6 18. In the case sub judice, the State proved the elements of armed robbery and attempted aggravated assault against Foster. In his testimony, Dukes identified Foster as the individual that robbed him at gunpoint and fired at him shooting his car several times with him inside the car. Dukes testified that he on two occasions that evening had given Foster a ride. Dukes testified that Foster ordered him at gunpoint to give him his billfold and searched through his car hunting anything of value. He ordered Dukes to leave his car. Dukes testified that he was scared for his life. When Foster bent down, Dukes jumped into his car and drove away. Foster repeatedly shot at him as he left. Dukes did not know Foster's name, but he identified him from a lineup.\\n\\u00b6 19. Robinson's testimony confirmed that Dukes had a flat tire, and there was an exchange between Dukes and another individual. Robinson testified that he became scared and left. As he left, he heard gunshots. The evidence demonstrates that the elements of armed robbery and attempted aggravated assault were met in this case.\\nB. Weight of the Evidence\\n\\u00b6 20. A motion for new trial challenges the weight of the evidence. Sheffield v. State, 749 So.2d 123, 127 (Miss.1999). A reversal is warranted only if the trial court abused its discretion in denying a motion for new trial. Id.\\n\\u00b6 21. The Court weighs the evidence in the light that is most favorable to the jury verdict. Bush v. State, 895 So.2d 836, 844 (Miss.2005). This Court has held that a new trial will not be given unless the verdict is so contrary to the overwhelming weight of the evidence that an unconscionable injustice would occur by allowing the verdict to stand. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). However, if a jury verdict convicting a defendant is against the overwhelming weight of the evidence, then the remedy is to grant a new trial. Collier v. State, 711 So.2d 458, 461 (Miss.1998).\\n\\u00b6 22. In the case sub judice, the verdict is consistent with the weight of the evidence, and no new trial is warranted. The jury heard the testimony from all the witnesses and heard Foster's alibi defense. The victim clearly identified Foster and described what occurred. The jury rejected the defense and found Foster guilty of armed robbery and attempted aggravated assault.\\n\\u00b6 23. We find that this assignment of error without merit.\\nII. Rebuttal Witness\\n\\u00b6 24. The State informed the trial court that Officer Shirley Johnson would be called as a witness in rebuttal. Foster objected. The trial court heard the objection outside the presence of the jury. The defense based its objection on the fact that the jury was not voir dired as to Officer Johnson.\\n\\u00b6 25. In McGaughy v. State, 742 So.2d 1091, 1094-95 (Miss.1999), this Court stated:\\nThis Court has advocated a liberal application of the rebuttal evidence rule. See Powell v. State, 662 So.2d 1095, 1099 (Miss.1995) (citing Meeks v. State, 604 So.2d 748, 755 (Miss.1992)). The time and manner of introducing evidence is committed to the sound discretion of the trial judge. Deas v. Andrews, 411 So.2d 1286, 1291 (Miss.1982) (citing Winterton v. Illinois Cent. R.R., 73 Miss. 831, 836, 20 So. 157, 158 (1896)). This Court will not reverse unless the exercise of discretion appears arbitrary, capricious or unjust. Id.\\nSee Wash v. State, 880 So.2d 1054, 1056 (Miss.Ct.App.2004). In Wash, the Court of Appeals recently addressed this issue citing McGaughy v. State, 742 So.2d at 1093. The Court of Appeals held: \\\"We consider whether the trial judge abused his discretion in allowing rebuttal testimony. The decision to allow rebuttal evidence or testimony is at the sole discretion of the trial judge.\\\" Wash, 880 So.2d at 1056. Therefore, on appeal, this Court reviews the trial court's ruling only for an abuse of discretion.\\n\\u00b6 26. The trial court inquired from the State whether it had anticipated calling Officer Johnson as a witness. The State informed the trial court that Officer Johnson was \\\"absolutely\\\" not expected to testify. The State responded that after speaking with Officer Johnson, it was determined that her testimony would have been repetitious and only operate to delay the proceedings and overlap the other officers' testimony. However, the State did not anticipate that two witnesses would make accusations that Officer Johnson had made improper inducements. When the State questioned Officer Johnson on rebuttal, the questioning was limited to only any deals that she allegedly made' with Robinson and Brady.\\n\\u00b6 27. We find that the record does not reflect .that the trial court abused its discretion. Therefore, this assignment of error is without merit.\\nCONCLUSION\\n\\u00b6 28. For the 'foregoing reasons, we affirm the judgment of the Coahoma County Circuit Court.\\n\\u00b6 29. COUNT I: CONVICTION OF ARMED ROBBERY AND SENTENCE OF FIFTEEN (15) YEARS, WITH CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF ATTEMPTED AGGRAVATED ASSAULT AND SENTENCE OF FIVE (5) YEARS, WITH CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. AFTER APPELLANT HAS SERVED TEN (10) YEARS IN COUNT I AND FIVE (5) YEARS IN COUNT II, THE REMAINING FIVE (5) YEARS IN COUNT I SHALL BE SUSPENDED. APPELLANT SHALL RECEIVE CREDIT FOR ALL TIME PREVIOUSLY SERVED IN THIS CAUSE. THE SENTENCE IMPOSED IN COUNT II SHALL RUN CONCURRENTLY TO THAT IMPOSED IN COUNT I AND BOTH SHALL RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED.\\nSMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., concur. DIAZ, J., NOT PARTICIPATING.\"}" \ No newline at end of file diff --git a/miss/8990846.json b/miss/8990846.json new file mode 100644 index 0000000000000000000000000000000000000000..eb7b83ef9286b8bce635c3635f6d9ff2ff2a454c --- /dev/null +++ b/miss/8990846.json @@ -0,0 +1 @@ +"{\"id\": \"8990846\", \"name\": \"UNITED SERVICES AUTOMOBILE ASSOCIATION v. Deborah C. STEWART, Individually and on Behalf of Other Wrongful Death Beneficiaries of Robert Earl Stewart, Jr.\", \"name_abbreviation\": \"United Services Automobile Ass'n v. Stewart\", \"decision_date\": \"2005-06-09\", \"docket_number\": \"No. 2004-CA-01540-SCT\", \"first_page\": \"24\", \"last_page\": \"30\", \"citations\": \"919 So. 2d 24\", \"volume\": \"919\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:27:24.346032+00:00\", \"provenance\": \"CAP\", \"judges\": \"SMITH, C.J., WALLER AND COBB, P.JJ., DICKINSON AND RANDOLPH, JJ\\u201e CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.\", \"parties\": \"UNITED SERVICES AUTOMOBILE ASSOCIATION v. Deborah C. STEWART, Individually and on Behalf of Other Wrongful Death Beneficiaries of Robert Earl Stewart, Jr.\", \"head_matter\": \"UNITED SERVICES AUTOMOBILE ASSOCIATION v. Deborah C. STEWART, Individually and on Behalf of Other Wrongful Death Beneficiaries of Robert Earl Stewart, Jr.\\nNo. 2004-CA-01540-SCT.\\nSupreme Court of Mississippi.\\nJune 9, 2005.\\nGerald Lee Kucia, Jackson, attorney for appellant.\\nJay Max Kilpatrick, Jackson, attorney for appellee.\", \"word_count\": \"2729\", \"char_count\": \"16595\", \"text\": \"CARLSON, Justice,\\nfor the Court:\\n\\u00b6 1. United Services Automobile Association (USAA) appeals to us from the Forrest County Chancery Court's grant of summary judgment in favor of its deceased insured's wrongful death beneficiaries, thus denying USAA's request for a set-off based on the liability coverage provided by a third-party tortfeasor's insurance carrier. Finding that the chancellor incorrectly granted summary judgment in favor of the plaintiffs, we reverse the chancellor's judgment and remand this case for further proceedings.\\nFACTS AND PROCEEDINGS IN THE TRIAL COURT\\n\\u00b6 2. On April 20, 2002, Robert Earl Stewart (Robert) was killed while operating his 1999 BMW motorcycle south on Interstate 59 in Hattiesburg, Forrest County, Mississippi. In a later-filed complaint, Deborah C. Stewart, individually and on behalf of other wrongful death beneficiaries of Robert (hereinafter \\\"Deborah\\\"), alleged that Joseph Rowell's negligent operation of his motor vehicle was the sole proximate cause of the accident and Robert's death.\\n\\u00b6 3. Prior to his death, Robert had contracted with USAA to provide his automobile insurance. Under automobile policy number 01341-71-64U-7101-4 (\\\"the policy\\\"), USAA provided insurance coverage for five vehicles for the period from April 14, 2002, to October 14, 2002. Each vehicle had uninsured/underinsured motorists (UM/UIM) coverage in the amount of $10,000. USAA acknowledged that there was stacked UM/UIM coverage in the total amount of $50,000, but asserted that it was entitled to a set-off in the amount of the liability coverage under the Rowell insurance policy. Rowell was a minor who had coverage under a State Farm Insurance Company policy during the relevant time period, based on his parents' automobile policy number 2469-438-24H. This policy provided for liability coverage in the maximum amount of $25,000.\\n\\u00b64. On November 18, 2003, Deborah filed a Complaint for Declaratory Judgment in the Chancery Court of the First Judicial District of Hinds County pursuant to Miss. R. Civ. P. 57, arguing that USAA was not entitled to any \\\"set-off' amount pursuant to the insurance policy purchased by Robert inasmuch as Deborah would not be \\\"made whole\\\" for Robert's death by the payment of the UM/UIM benefits in the amount of $50,000.\\n\\u00b6 5. Upon timely motion by USAA, Deborah's case was transferred to the Chancery Court of Forrest County. After USAA answered the complaint, Deborah filed a motion for summary judgment, arguing that USAA was not entitled to offset the amount of liability coverage that Ro-well held on April 20, 2002. USAA also filed a motion for summary judgment and claimed that it was entitled to off-set the amount of Rowell's liability coverage.\\n\\u00b6 6. After a hearing the chancery court granted Deborah's motion for summary judgment and denied USAA's motion for summary judgment. Relying on this Court's decision in Hare v. State, 733 So.2d 277 (Miss.1999), where we adopted the \\\"made whole\\\" rule of subrogation, the chancery court found that USAA was not entitled to a set off in the amount of the liability coverage held by Rowell. The chancellor entered a final judgment pursuant to Miss. R. Civ. P. 54(b), and USAA timely appealed to us.\\nDISCUSSION\\n\\u00b6 7. The standard of review for summary judgment is well-established by this Court:\\nRule 56(c) of the Mississippi Rules of Civil Procedure allows summary judgment where there are no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law. To prevent summary judgment, the' nonmoving party must establish a genuine issue of material fact by means allowable under the rule. Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997); Lyle v. Mladinich, 584 So.2d 397, 398 (Miss.1991).\\nThis Court employs a de novo standard in reviewing a lower court's grant of summary judgment. Mississippi Ethics Comm'n v. Aseme, 583 So.2d 955, 957 (Miss.1991); Cossitt v. Federated Guaranty Mut. Ins. Co., 541 So.2d 436, 438 (Miss.1989). Evidentiary matters are viewed in a light most favorable to the nonmoving party. Palmer v. Biloxi Regional Medical Center, Inc., 564 So.2d 1346, 1354 (Miss.1990). If any triable issues of material fact exist, the lower court's decision to grant summary judgment will be reversed. Otherwise, the summary judgment is affirmed. Richmond, 692 So.2d at 61; Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1984).\\nHare, 733 So.2d at 279.\\n\\u00b6 8. Focusing on today's case, the applicable sections of Robert's policy are as follows:\\nPART C \\u2014 UNINSURED MOTORIST COVERAGE\\nINSURING AGREEMENT\\nA. UMBI Coverage. We will pay compensatory damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of BI (bodily injury) sustained by a covered person and caused by an auto accident.\\nE. We will pay under these coverages only after the limits of liability under any of the following that are applicable to the uninsured motor vehicle have been exhausted by payment of judgment or settlements:\\n1. Liability bonds or policies; or\\n2. Deposits of cash or securities.\\nLIMIT OF LIABILITY\\nD. Whether Paragraph A or Paragraph B applies[ ]:\\n2. The limits of liability under UMBI Coverage (each person each accident) and UMPD Coverage shall be reduced by all sums paid because of BI or PD by or on behalf of the owner or operator of the uninsured motor vehicle.\\nNON-DUPLICATION\\nNo covered person will be entitled to receive duplicate payments under this coverage for the same elements of loss which were:\\nA. Paid because of the BI or PD by or on behalf of persons or organizations who may be legally responsible.\\n(Emphasis Added).\\n\\u00b6 9. Based on the stacked UM/UIM coverage available, USAA, pursuant to the policy provisions, tendered to Deborah the amount of $50,000, minus a \\\"set off' of $25,000 based on the liability coverage provided under Rowell's insurance policy. Deborah refused USAA's tender of payment, arguing that the $50,000 available in UM/UIM benefits from USAA and the $25,000 available from the at-fault driver did not reflect the true present value of Robert's lost income.\\n\\u00b6 10. The chancellor held that USAA would typically be entitled to a set-off on most of the UM claims made under its policies. The chancellor stated that because this was a \\\"catastrophic situation which involve[d] the death of a gainfully employed 45 year-old male who made approximately $25,000 per year,\\\" the set-off asserted by USAA was not enforceable until Deborah, as the insured, was made whole.\\n\\u00b6 11. The \\\"made whole\\\" rule is \\\"the general principle that an insurer is not entitled to equitable subrogation until the insured has been fully compensated.\\\" Hare, 733 So.2d at 281. In Hare, this Court adopted the \\\"made whole\\\" rule and held that:\\n[I]t is not to be overridden by contract language, because the intent of subrogation is to prevent a double recovery by the insured, especially here as expressly stated in the State Health Plan. Until the insured has been fully compensated, there cannot be a double recovery. Otherwise, to allow the literal language of an insurance contract to destroy an insured's equitable right to subrogation ignores the fact that this type of contract is realistically a unilateral contract of insurance and overlooks the insured's total lack of bargaining power in negotiating the terms of these types of agreements.\\nId. at 284 (citations omitted). Hare, insured by the Mississippi State and Public School Employees' Health Plan, was involved in a motor vehicle accident with an uninsured motorist. Id. at 278. Hare was also insured under an UM policy by Progressive Insurance, with policy limits of $10,000 per person and $20,000 per accident. Id. at 279. The Court determined that the State could not assert a subrogation claim against the UM benefits collected by Hare because Hare would not be \\\"made whole.\\\" Id. Hare suffered $8,667.50 in medical expenses, $6,056.50 of which was paid by the State. Id. at 284. Expert witnesses, through affidavits, stated that Hare's potential recovery would fall between $50,000 and $175,000. Id.\\n\\u00b6 12. However, USAA reminds us that while it can be argued that most of our UM/UIM cases which acknowledge an insurance company's right of set-off predate our 1999 decision in Hare, this Court has affirmed a UM/UIM carrier's right of set-off on at least two occasions since Hare, citing Wise v. United Services Auto. Ass'n, 861 So.2d 308 (Miss.2003); and, City of Jackson v. Perry, 764 So.2d 373 (Miss. 2000).\\n\\u00b6 13. Discussing these cases in reverse order, Perry involved a suit against the City of Jackson based on a minor child's sustaining injuries in an automobile collision with a vehicle driven by a Jackson police officer. We stated that the case \\\"presents issues concerning the interplay between our underinsured motorist statutes and those governing sovereign immunity.\\\" 764 So.2d at 375. We certainly acknowledged the right of set-off in appropriate cases, but on the issue of set-off in Perry, we held that set-off (or offset) was inapplicable since there was no record that the UM carrier's insurance policy had an offset provision. Id. at 383.\\n\\u00b6 14. In Wise, we stated:\\nIt is undisputed that the Wises had UM coverage limits of $300,000 per person and $600,000 per accident. It is also undisputed that Bostic's vehicle was covered by a USF & G single limit liability policy of $300,000. The question this Court must answer is in determining whether a vehicle is an uninsured vehicle pursuant to statute, which amount is used when multiple claimants are involved \\u2014 -the per person or the per accident limit?\\n861 So.2d at 312. After discussing some of our decisions in UM/UIM cases, we stated:\\nWhile the above cases are illustrative of this State's history of uninsured motorist law, the cases do not provide a clear answer as to whether the per person or the per accident limit should be used to determine if the tortfeasor is an uninsured motorist when there are two or more claimants under the same uninsured motorist policy.\\nId. at 317.\\n\\u00b6 15. In finding that the Wises were entitled to UM benefits, we relied on two cases from our sister state of North Carolina; namely, Nationwide Mut. Ins. Co. v. Haight, 152 N.C.App. 137, 566 S.E.2d 835 (2002); and, North Carolina Farm Bureau Mut. Ins. Co. v. Gurley, 139 N.C.App. 178, 532 S.E.2d 846 (2000). After a thorough discussion of Haight and Gurley, we stated:\\nUsing the North Carolina cases as guidance, Bostic's single liability limit of $300,000 is equivalent to a per accident limit. Comparing that limit to the per accident limit of the Wises' USAA policy of $600,000, Bostic's vehicle should be considered an underinsured motor vehicle pursuant to statute. Therefore, the Wises are entitled to uninsured motorists benefits.\\n861 So.2d at 319.\\n\\u00b6 16. In applying USAA policy provisions almost identical to the USAA policy provisions in today's case, we held that USAA was entitled to an offset, and stated:\\n[T]he trial court was correct in determining that the Wises no longer have any uninsured motorist claims available to them. The Wises have admitted that they have been paid, through settlements, an amount which exceeds their available uninsured -motorist benefits; therefore, USAA is no longer liable for any uninsured motorist benefits.\\nId.\\n\\u00b6 17. We are firmly convinced that the learned chancellor attempted to fairly decide the case sub judice based on what he genuinely believed to be the applicable law. However, we are constrained to find that the chancellor incorrectly decided this case by applying Hare, instead of Wise and its predecessor cases.\\n\\u00b6 18. As already noted, Hare was a subrogation case. We have defined subro-gation as \\\" 'the substitution of one person in place of another, whether as a creditor or as the possessor of any rightful claim so that he who is substituted succeeds to the rights of the other in relation to the debt or claim, and its rights, remedies, or securities. Words and Phrases Vol. 7, p. 6722.' Trust Company v. Peters, 72 Miss. 1058, 18 So. 497, 30 L.R.A. 829.\\\" First Nat'l Bank of Jackson v. Huff, 441 So.2d 1317, 1319 (Miss.1983). While we reaffirm our decision in Hare to stand for the proposition that the \\\"made whole\\\" rule may be appropriately applied to certain subrogation cases, we unhesitatingly state here that Hare did not overrule the long line of UM/UIM cases, many of which were discussed in Wise, which was decided more than four years after Hare. If we had intended such a result in Hare, we would have said so in express language overruling prior case law. Wise was not a subro-gation case, and neither is today's case.\\n\\u00b6 19. Although there is a dispute between Deborah and USAA has to what the parties had stipulated to in the trial court, we quote only so much as is necessary here concerning what USAA admits to us:\\nUSAA further admits that Mr. Stewart was gainfully employed with the State of Mississippi at Camp Shelby making approximately $25,000 a year at the time of his death. USAA also admits that $75,000 ($50,000 offered pursuant to the USAA policy and $25,000 available from the at-fault driver) does not reflect the true present value of the lost income stream suffered due to the death of Mr. Stewart. USAA denies that the \\\"made-whole\\\" doctrine is applicable to the Plaintiffs' claim for uninsured/underin-sured motorist benefits.\\n(Emphasis in original).\\n\\u00b620. We concluded in Hare: \\\"[T]his Court adopts the \\\"made whole\\\" rule of subrogation, because the general intent of subrogation . is to prevent a double recovery by the insured. Until the insured has been fully compensated, there cannot be a double recovery.\\\" 733 So.2d at 285.\\n\\u00b6 21. There can be no doubt that Deborah will not be made whole by the $50,000 UM/UIM benefits and the $25,000 liability coverage from the at-fault driver. However, we have to recognize that in many UM/UIM cases, it is virtually impossible for the injured insured(s) to be made whole. It is hardly uncommon for the injured insured(s) to incur injuries and damages far in excess of the available insurance coverage. In State Farm Mut. Auto. Ins. Co. v. Kuehling, 475 So.2d 1159 (Miss.1985), by applying the provisions of the UM statute and the specific insurance policy, we allowed a set-off by way of a reduction of UM benefits based on the amount of liability coverage provided under the tortfeasor's policy. If we were to expand the \\\"made whole\\\" rule to apply not only to certain subrogation cases, but also to UM/UIM cases, we would in effect overrule Kuehling and its progeny, including our recent decision in Wise. This, we refuse to do. If we overruled this long line of cases, such action on our part would understandably create chaos for the trial bench and bar, which have a right to expect consistency from this Court. Our application of stare decisis is necessary, inter alia, so that trial courts can make correct decisions and lawyers can properly advise their clients.\\nCONCLUSION\\n\\u00b622. Applying Wise and its predecessor cases, USAA is entitled to a set-off of $25,000, based on the liability coverage provided under the Rowell insurance policy. Since the chancellor held otherwise, we reverse the chancellor's judgment and remand this case to the Forrest County Chancery Court for proceedings consistent with this opinion.\\n\\u00b6 23. REVERSED AND REMANDED.\\nSMITH, C.J., WALLER AND COBB, P.JJ., DICKINSON AND RANDOLPH, JJ\\\" CONCUR. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ AND GRAVES, JJ., NOT PARTICIPATING.\\n. The coverages provided included liability coverage for bodily injury and property dam age, medical payments coverage, physical damage coverage, uninsured motorists coverage, and uninsured motorists property damage coverage.\\n. The propriety of bringing this suit in chancery court, as opposed to circuit court, has not been raised as an issue in this appeal, thus we need not address this issue today.\\n. Paragraph A applies if the uninsured motor vehicle is not a \\\"covered\\\" vehicle and Paragraph B applies if the uninsured motor vehicle is \\\"your covered auto.\\\"\\n. The relevant provisions of the USAA policy in today's case are almost identical to the provisions of the USAA policy in Wise v. United Services Auto. Ass'n, 861 So.2d 308 (Miss. 2003).\"}" \ No newline at end of file diff --git a/miss/9021339.json b/miss/9021339.json new file mode 100644 index 0000000000000000000000000000000000000000..0a58145297c6d60f6eb45132f49af346a491eacc --- /dev/null +++ b/miss/9021339.json @@ -0,0 +1 @@ +"{\"id\": \"9021339\", \"name\": \"Kenneth Leon DAVIS v. STATE of Mississippi\", \"name_abbreviation\": \"Davis v. State\", \"decision_date\": \"2004-07-01\", \"docket_number\": \"No. 2002-CA-00028-SCT\", \"first_page\": \"960\", \"last_page\": \"972\", \"citations\": \"897 So. 2d 960\", \"volume\": \"897\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T23:17:32.951693+00:00\", \"provenance\": \"CAP\", \"judges\": \"COBB, P.J., EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. SMITH, C.J., AND DIAZ, J., NOT PARTICIPATING.\", \"parties\": \"Kenneth Leon DAVIS v. STATE of Mississippi.\", \"head_matter\": \"Kenneth Leon DAVIS v. STATE of Mississippi.\\nNo. 2002-CA-00028-SCT.\\nSupreme Court of Mississippi.\\nJuly 1, 2004.\\nRehearing Denied Oct. 7, 2004.\\nOffice of Capital Post-Conviction Counsel by David Paul Voisin, Robert M. Ryan, attorneys for appellant.\\nOffice of the Attorney General by Marvin L. White, Jr., attorney for appellee.\", \"word_count\": \"5342\", \"char_count\": \"32678\", \"text\": \"WALLER, Presiding Justice,\\nfor the Court.\\n\\u00b6 1. Kenneth Leon Davis was convicted of capital murder in the shooting death of Bobby Joe Biggert. A Hinds County jury sentenced him to death. His direct appeal was affirmed by this Court in 1991. Davis v. State, 660 So.2d 1228 (Miss.1995). The United States Supreme Court denied certiorari, Davis v. Mississippi, 517 U.S. 1192, 116 S.Ct. 1684, 134 L.Ed.2d 785 (1996), and rehearing. Davis v. Mississippi, 518 U.S. 1039, 117 S.Ct. 7, 135 L.Ed.2d 1102 (1996).\\n\\u00b6 2. Thereafter, Davis sought post-conviction relief by filing a petition in the Mississippi Supreme Court. This Court granted Davis permission to file his petition for post-conviction relief in the Circuit Court of Hinds County. Davis was allowed to present several specific claims of ineffective assistance of counsel. All other claims were dismissed. After a hearing, the trial judge determined that Davis had not shown any constitutional deprivation of effective assistance of counsel. The request for post-conviction relief was denied. Davis's appeal from that order is before the Court.\\n\\u00b6 3. After a full review of the record at trial, the transcript of the hearing on the post-conviction relief proceedings and the briefs filed in this matter, the Court finds that Davis received effective assistance of counsel and that the petition for post-conviction relief was properly denied.\\nFACTUAL AND PROCEDURAL BACKGROUND\\n\\u00b6 4. The facts are thoroughly set out in Davis v. State, 660 So.2d 1228 (Miss.1995). At approximately four o'clock in the afternoon on February 23, 1989, Tammy Slaton was at work at Dr. Duck's Pawn Shop in Jackson. Kenneth Davis entered the store, pointed a pistol at her, and demanded that she give him the store's cash. Davis also demanded the keys to Slaton's car which was parked outside. Slaton gave Davis approximately $400 in cash and her keys. Davis then forced her at gunpoint into a storeroom where he tied her hands with a piece of bed sheet. While Davis was with Slaton in the storeroom, Bobby Joe Biggert, an off-duty policeman, entered the pawnshop as a customer. Big-gert found no one in the main part of the store and came into the storage area looking for assistance. Davis immediately confronted Biggert with the pistol. Shortly thereafter, Davis fired one shot from the small caliber pistol. The shot struck Big-gert in the head, and Biggert fell to the ground. Slaton asked Davis not to hurt her, and Davis told her that he was not going to hurt her. He fled the scene in Slaton's 1980 maroon Camaro. Slaton was able to untie her wrists and call for help. Emergency personnel rushed Biggert to the hospital but his wound proved to be fatal. Biggert died two days after the shooting.\\n\\u00b6 5. Law enforcement authorities immediately began searching for the maroon Camaro. The car was found in a wooded area near Lake Dockery in the Byram area. A search of the area around the location of the automobile was conducted. Officers found a .22 caliber pistol, a box of .22 caliber ammunition, a hunting knife, a knife scabbard, a pair of faded red overalls, a denim jacket, a baseball type cap, and a hood. One identifiable fingerprint was found on the knife. Authorities matched that fingerprint to a print of Davis's which the F.B.I. had on file. The pistol was traced through A.T.F. records to a house burglary in Jackson which occurred the day before Biggert's shooting. After further investigation of the burglary and after determining that Davis's fingerprint was on the knife found near the stolen car, officers named Kenneth Davis as a suspect in both the house burglary and the pawn shop shooting. Pursuant to a warrant, officers performed a search of Davis's trailer in Rankin County. Inside the trailer, officers found a white bed sheet with a floral pattern. Part of the sheet had been torn or cut away. The floral patterned sheet found in the trailer matched the piece of sheet with which Slaton's hands had been tied. Officers also found items stolen in the home burglary in Davis's trailer.\\n\\u00b6 6. Police officers canvassed businesses in the area around the pawn shop. At trial, two employees of the Dairy Queen, located across'the street from the pawn shop, testified that Davis had been in the restaurant immediately prior to the robbery. Two Dairy Queen customers also identified Davis and stated that Davis had been in the Dairy Queen shortly before the shooting. Additionally, a motorist on the street outside the pawn shop testified that he saw Davis cross the street in front of him and walk into Dr. Duck's. Perhaps the most damaging testimony to Davis was Slaton's positive identification of him at trial as the robber and killer.\\n\\u00b6 7. Davis was convicted of capital murder and was sentenced to death. This Court affirmed the conviction and sentence. Davis v. State, 660 So.2d 1228 (Miss.1995). Pursuant to Miss.Code Ann. \\u00a7 99-39-1 et seq., Davis sought post-conviction relief in this Court. By order entered on June 26, 1997, this Court granted Davis permission to pursue his petition for post-conviction relief in the trial court. An order of clarification was entered by this Court on September 11, 1997. In that order, this Court determined that Davis could present five specific claims of ineffective assistance of counsel in post-conviction proceedings. The Court determined that all other claims raised in the petition for post-conviction relief were barred.\\n\\u00b6 8. The Circuit Court of Hinds County held a hearing on Davis's petition for post-conviction relief in December of 2001. At that hearing, Davis presented claims that his trial and appellate attorneys had been ineffective. After the conclusion of the hearing, the trial court denied Davis's request for post-conviction relief, and this appeal ensued.\\nANALYSIS\\n\\u00b6 9. On appeal, Davis presents three issues related to his claim that he did not receive effective assistance of counsel. Davis was represented at trial and on appeal by William Kirksey and Merrida Cox-well. At the time of their representation of Davis, both attorneys had extensive criminal defense experience in both capital and non-capital cases.\\n\\u00b6 10. The standard for determining if a defendant received effective assistance of counsel is well established. \\\"The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.\\\" Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant must demonstrate that his attor ney's actions were deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 104 S.Ct. 2052. \\\"Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.\\\" Stringer v. State, 454 So.2d 468, 477 (Miss.1984), citing Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. 2052. The focus of the inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Id.\\nJudicial scrutiny of counsel's performance must be highly deferential, (citation omitted) . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'\\nStringer, 454 So.2d at 477; citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Defense counsel is presumed competent. Washington v. State, 620 So.2d 966 (Miss.1993).\\nThen, to determine the second prong of prejudice to the defense, the standard is \\\"a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.\\\" Mohr v. State, 584 So.2d 426, 430 (Miss.1991). This means a \\\"probability sufficient to undermine the confidence in the outcome.\\\" Id. The question here is\\nwhether there is a reasonable probability that, absent the errors, the sen-tencer \\u2014 including an appellate court, to the extent it independently reweighs the evidence \\u2014 would have concluded that the balance of the aggravating and mitigating circumstances did not warrant death. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068.\\nThere is no constitutional right then to errorless counsel. Cabello v. State, 524 So.2d 313, 315 (Miss.1988); Mohr v. State, 584 So.2d 426, 430 (Miss.1991) (right to effective counsel does not entitle defendant to have an attorney who makes no mistakes at trial; defendant just has right to have competent counsel). If the post-conviction application fails on either of the Strickland prongs, the proceedings end. Neal v. State, 525 So.2d 1279, 1281 (Miss.1987); Mohr v. State, 584 So.2d 426 (Miss.1991).\\nDavis v. State, 743 So.2d 326, 334 (Miss.1999), citing Foster v. State, 687 So.2d 1124, 1130 (Miss.1996).\\n\\u00b6 11. Davis's claims of ineffective assistance of counsel are:\\nI. Trial counsel was ineffective in failing to \\\"use an F.B.I. crime lab report to demonstrate that hair belonging to someone else, not petitioner, was found on items of clothing supposedly worn by the perpetrator.\\\"\\n\\u00b6 12. At trial, Slaton witnesses testified that the perpetrator of the robbery and homicide had been wearing faded red or orange overalls, a cap, and a hood. Several of the Dairy Queen witnesses and Joe Larimore, who had seen Davis on the street as he went into the pawn shop, also identified the red overalls, cap and hood. Those three items were discovered by law enforcement officers in the wooded area near where Slaton's Camaro was found. All three were submitted to the FBI for hair and fiber analysis. The FBI report notes that \\\"No hairs like the known hairs of the suspect . were found on or in specimen Q52 [the hood] . No hairs of value for comparison purposes were found on the Q53 cap . [N]o hairs were found on Q51 [the coveralls].\\\"\\n\\u00b6 13. The implication from the report is that no hairs at all were found on the cap or the coveralls but that a hair or hairs that did not match Davis's hair were found on the hood. Davis now maintains that his attorneys at trial were ineffective in failing to point out to the jury that someone else's hairs apparently were found on the hood.\\n\\u00b6 14. At trial, one of Davis's attorneys cross-examined a Jackson homicide detective about the F.B.I. hair report:\\nQ. So the hood, the baseball cap, and the pair of coveralls was submitted to the FBI? That's what this report says?\\nA. Yes. That's what that one says.\\nQ. And the request was for \\u2014 for you or for the bureau to do a hair and fiber examination; is that correct? That's what these reports say; isn't it?\\nA. That's correct.\\nQ. Is it safe to say, or since you and I do this a lot, that when you make these requests, Mr. Crisco, is what they do is they take the known hair and \\u2014 known hair from a defendant, examine any fibers or hairs that they get from the evidence submitted, and see if there's any matching or similar to character\\u2014 characteristics? Isn't that what they do?\\nA. That's correct.\\nQ. And then if there is a match they will send you back a report saying: On known sample Kl, being a hat, or whatever the item is, we find that this \\u2014 this item contains hair of a similar character as that of the suspect provided as known exhibit two?\\nA. Yes. Yes.\\nQ. That's basically what they do?\\nA. Correct.\\nQ. Did you ever receive any report from the Bureau, FBI Bureau, Federal Bureau of investigation, in Washington, D.C., telling you that there were any hairs from these items that matched that of the Defendant in this case, to your knowledge?\\nA. To my knowledge, we did not receive a report from the FBI in regards to that information.\\nDavis's trial attorney adequately demonstrated to the jury that no hair found on the hood matched Davis's hair. Davis claims, however, that his attorneys failed to elicit testimony from the witness that there were hairs on the hood that belonged to someone other than the defendant.\\n\\u00b6 15. Both of Davis's trial attorneys were questioned on this issue at the post-conviction relief hearing. Both testified that they felt that the cross-examination had been sufficient and that any issue regarding hair on the hood, cap, or coveralls had been adequately covered. We agree. Exculpatory information was imparted to the jury through the defense's examination of the witness in question. The F.B.I. report was admitted into evidence and was available for the jury's review. The jury was informed that Davis's hairs were not found on any of the items submitted to the F.B.I. for analysis. Although in hindsight, the attorneys might have been well advised to ask the subsequent questions about other persons' hairs, we do not find that the failure to ask those questions amounted to ineffective assistance of counsel. Perfect representation in hindsight is not the standard, and the accused is not entitled to errorless counsel. Stringer v. State, 454 So.2d at 476. \\\"The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.\\\" Yarborough v. Gentry, 540 U.S. 1, 124 S.Ct. 1, 4, 157 L.Ed.2d 1 (2003), citing Bell v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986); Strickland, 466 U.S. at 689, 104 S.Ct. 2052; United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).\\n\\u00b6 16. To establish ineffectiveness, Davis must show that his attorneys' representation fell below an objective standard of reasonableness. To establish prejudice he must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Williams v. Taylor, 529 U.S. 362, 390-91, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), citing Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052. The question is whether the defendant's attorneys made errors so serious that the attorneys failed to function as \\\"counsel\\\" guaranteed by the Sixth Amendment and that the deficiencies in the representation actually prejudiced the defense such that but for counsel's deficient performance the result of the proceeding would have been different. Strickland, 466 U.S. at 687,104 S.Ct. 2052.\\n\\u00b6 17. After hearing the testimony offered by Davis at the hearing on the petition for post-conviction relief, the trial court determined that the attorneys' performance had not been deficient and that Davis had suffered no prejudice. This Court reviews a trial court's findings on ineffective assistance of counsel on a clearly erroneous standard. State v. Pittman, 744 So.2d 781, 786 (Miss.1999).\\n\\u00b6 18. Davis's attorneys were presented with a difficult case to defend. Their client had been positively identified by Sla-ton. Five other eyewitnesses placed Davis near the scene of the crime shortly before the crime occurred. The piece of floral bed sheet used to bind Slaton's hands during the robbery came from a sheet in the trailer where Davis was living. Davis's fingerprint was found on the knife discovered near Slaton's abandoned car. Items taken in the same burglary in which the murder weapon was stolen were found in Davis's house. Under the totality of the circumstances and after reviewing the entire trial transcript, we find that Davis has not shown that his trial and appellate attorneys were ineffective.\\n\\u00b6 19. We find that under no objectively reasonable basis could it be shown that Davis was not afforded effective assistance of counsel in relation to the hair and fiber evidence. The detective was cross-examined vigorously by Davis's attorneys. Through the F.B.I. report, the attorneys showed that no hair of Davis's was found on any item of clothing in evidence. We agree with the trial court and find that the representation received by Davis here was more than adequate under the standards set out above.\\nII. Davis's trial attorneys were ineffective in failing to adequately object to false evidence concerning the aggravating circumstance that \\\"the capital offense was committed by a person under sentence of imprisonment.\\\"\\n\\u00b6 20. During the sentencing phase, the State attempted to prove several statutory aggravating factors. The State offered evidence that Davis had been on parole and under sentence of imprisonment at the time of Biggert's killing. The State offered proof that Davis had been convicted of two counts of burglary in Louisiana in 1983. The State also showed that Davis had been convicted of burglary in Scott County in 1985. Finally, the State showed that Davis had convictions for possession of a concealed firearm by a convicted felon and felony escape from Forrest County in 1985. The State alleged that Davis was still under parole conditions for each of those five convictions and thus met the requirements for the aggravator of being under a sentence of imprisonment. The jury found that the murder had been committed while Davis was under sentence of imprisonment and that aggravating factor was used as a basis for the penalty of death. Davis now claims that he should not have been considered to have been on parole for the two Forrest County convictions for aggravator purposes and that his attorneys did not sufficiently contest that issue at trial and on appeal.\\n\\u00b6 21. During the sentencing phase, the State called the Assistant Director for the Louisiana Division of Probation and Parole who testified unequivocally that Davis was on parole in Louisiana for the two burglary convictions he had there. The State also called a Field Officer with the Mississippi Department of Corrections who testified that Davis had been paroled in 1988. He was paroled after serving a portion of the three consecutive sentences he was then serving.\\n\\u00b6 22. Davis faults his attorneys for failing to make an adequate objection to the State's use of the two Forrest County convictions. He claims that the two year sentence for carrying a concealed weapon and the three year sentence for escape were expired by the time of the crime and that they should not have been presented to the jury as a basis for a finding that the killing was done while Davis was on parole. The attorneys actually objected repeatedly to any use of the Forrest County sentences as support for the \\\"under sentence of imprisonment\\\" aggravator. They then raised that issue on appeal. In the appellant's brief in the direct appeal, his attorneys argued that:\\nMr. Davis was not on parole for escape, i.e., not \\\"under sentence of imprisonment for escape\\\" . In objecting to the admission of this conviction the defense illustrated that Davis had served the time on both the three-year sentence for escape and a consecutive two-year sentence [the carrying a concealed weapon conviction] handed down the same day. The defense argued that because Davis was sentenced to these charges prior to the seven-year sentence from Scott County, he would serve those sentences before he started serving the seven-year sentence. The trial court overruled this objection. That ruling was clearly erroneous. Milam v. State, 578 So.2d 272 (Miss.1991) (where person is sentenced to consecutive terms, \\\"imprisonment on the second, or subsequent conviction, shall commence at the completion of the service of the term for the preceding conviction\\\").\\n\\u00b6 23. The issue therefore was substantially raised in the direct appeal by Davis's attorneys. This Court explicitly found that the State's commenting on the escape conviction was not improper. Davis, 660 So.2d at 1228-29.\\n\\u00b6 24. At trial, Davis's attorneys made specific objections to the use of the Forrest County convictions. Those objections were overruled. The issue was raised on appeal but this Court affirmed the conviction and sentence. Davis maintains that his attorneys should have offered additional argument on purportedly relevant cases and statutes. Again, mere hindsight is insufficient to establish a claim of ineffective assistance. The fact remains that the claim was raised repeatedly before the cir cuit judge and was brought before this Court on appeal. We find no ineffective assistance of counsel where the attorneys raised the claims- at trial and on appeal.\\n\\u00b6 25. Additionally, even if the Forrest County convictions were improperly used as support for the aggravating circumstance of commission of the crime while under sentence of imprisonment, the State still more than amply produced evidence that Davis was in fact under sentence of imprisonment when he shot and killed Bobby Joe Biggert. It was unrefuted that Davis was still on parole in Louisiana at the time of the crime. He also was on parole from his Scott County burglary conviction. The \\\"while under sentence of imprisonment\\\" aggravator applied even if the escape and concealed weapon convictions had not been used. The jury had more than sufficient proof to find that that aggravating circumstance existed even in the absence of the escape and concealed weapon convictions.\\n\\u00b626. Finally, Davis's jury found two separate aggravating circumstances. The jury found that the capital murder was committed intentionally while Davis was engaged in the commission of armed robbery or flight after committing the armed robbery and that the capital murder was committed for pecuniary gain. In McGilberry v. State, 843 So.2d 21, 29 (Miss.2003), this Court held that \\\"[i]f one aggravator is found to be invalid, we are authorized to reweigh the remaining aggravators against the mitigating circumstances and affirm, hold the error to be harmless, or remand for a new sentencing hearing. Miss.Code Ann. \\u00a7 99-19-105(5)(b) (Rev.2000).\\\" Here, even if the aggravating circumstance related to commission of the crime while under sentence of imprisonment were discarded, the Court finds that the sentence of death should be affirmed. The jury found that the killing occurred in the course of the pawn shop robbery and that the killing was done for pecuniary gain. Given the evidence at trial, those findings are unassailable. Even if the aggravating factor at issue were thrown out, after reweighing the remaining factors, the Court would affirm Davis's death penalty. We find no error here.\\nIII. Conflict of interest.\\n\\u00b6 27. William Kirksey and Merri-da Coxwell- represented Davis at trial and on appeal. Bobby Delaughter, Assistant District Attorney for Hinds County, prosecuted the case for the State. Kirksey, along with another lawyer, had represented Delaughter- in Delaughter's divorce proceedings. Davis claims that Kirksey represented him while under a conflict of interest and that he is entitled to a new trial with new counsel.\\n\\u00b6 28. Kirksey testified at the post-conviction relief hearing that Davis had been informed of Kirksey's representation of Delaughter in the divorce case and that Davis had voiced no objection to continued representation by Kirksey. While there was no on-the-record waiver by Davis of any conflict, Kirksey's testimony that Davi\\u00e1 was informed about the nature of Kirksey's relationship with Delaughter was fully explained to Davis and that Davis had posed no objection was not contradicted at the post-conviction relief hearing. Kirksey also testified that another attorney was primarily responsible for handling De-laughter's divorce. Kirksey testified that the fact that he knew Delaughter and had represented him is \\\"never going to change what I do inside the rail. My loyalty is to the oath I took and to do the best I could do inside the rail for my client. And I, quite frankly, don't care who's on the other side period . If anything, my knowledge of Bobby Delaughter would have aided and assisted me in the defense of Kenny Davis because I anticipated what Bobby De-laughter might do.\\\"\\n\\u00b6 29. Judge William Coleman, former Hinds County circuit judge who presided over Davis's trial, testified in the post-conviction proceedings that Delaughter and Kirksey were often on opposing sides in criminal trials and that he had not observed any \\\"pulled punches\\\" from either lawyer. Judge Coleman testified that in his opinion \\\"Mr. Kirksey wanted to win every case he walked in in the courtroom.\\\"\\n\\u00b6 30. The United States Supreme Court has stated that \\\"[prejudice is presumed only if the defendant demonstrates that counsel 'actively represented conflicting interests' and that an 'actual conflict of interest adversely affected his lawyer's performance.' \\\" Strickland v. Washington, 466 U.S. at 692, 104 S.Ct. 2052 (citing Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980)).\\n\\u00b6 31. In Simmons v. State, 805 So.2d 452 (Miss.2001), one of the defendant's attorneys had apparently represented one of the State's witnesses and that witness's father in unrelated matters prior to Simmons's trial. This Court held that \\\"[tjhere is no evidence in the record to suggest that defense counsel acted in some manner other than capablfy]. Id. at 480.\\n\\u00b6 32. In Simmons, even though there might have been a facial conflict of interest, this Court found that there had been no showing of any ineffective assistance of counsel. The defendant there failed to present any evidence that his defense had been harmed by the purported conflict. We make the same finding here. A thorough review of the trial record reveals that Davis received zealous representation from Kirksey and Coxwell. There is nothing in the record which indicates a lack of full loyalty to Davis and his defense. Davis has not shown that his defense suffered any prejudice whatsoever as a result of Kirksey's representation of Delaughter in Delaughter's divorce proceedings. As discussed above, the evidence against Davis was close to overwhelming. The victim of the robbery testified that Davis had done it. The strip of sheeting used to tie Sla-ton's hands matched the sheet in Davis's trailer. Five eyewitnesses saw Davis in the area near the time of the crime. As there is absolutely no resulting prejudice, the claim for relief based on the conflict of interest is without merit.\\nIV. The trial judge's rulings.\\n\\u00b6 33. Davis complains that various trial court rulings during the post-conviction proceedings unfairly limited his right to seek relief. He primarily complains that the trial judge denied his attempts to broaden the scope of the proceedings and that the trial judge did not allow his post-conviction attorneys sufficient time in which to present and prepare for the hearing on his post-conviction petition. He admits in his brief that those rulings do not entitle him to any relief. With that in mind, we treat this issue somewhat cursorily.\\n\\u00b6 34. This Court remanded this matter for a limited hearing on five specific claims of ineffective assistance of counsel. The scope of the trial court's proceedings was therefore limited to matters specifically noted in this Court's order. Davis apparently abandoned two of those claims and pursued the three outlined above. The petitioner also sought to amend the petition in the trial court to include various issues related to Batson v. Kentucky, the seating of juror Margie Dill, ineffectiveness of counsel in failing to object to pros-ecutorial misconduct, and claims related to alleged duplicative aggravating factors. Those claims were not among the claims specifically authorized for hearing in this Court's order dated September 11, 1997. Some, if not 'all of those claims are presently before the Court in pleadings discussed in footnote one. This Court finds that the trial judge did not err in declining to allow Davis to amend his petition to add new claims for relief. This Court's prior order explicitly limited the scope of the lower court proceedings to five specific claims. The trial court had no jurisdiction to address any claims outside those specifically addressed in this Court's remand order. See Culberson v. State, 456 So.2d 697 (Miss.1984). The trial court therefore did not err in declining to broaden the scope of the hearing or to allow a proffer on the proposed new claims. Davis apparently recognized that the proper forum to file those amended claims was this Court. He filed a request to pursue amended post-conviction claims here. The new claims will be addressed in due course.\\n\\u00b6 35. Davis claims that he was prejudiced by the State's failure to produce discovery in a timely manner. He admits, however, that the State's discovery was produced in March of 2001. The hearing was not held for another eight and a half months. Davis also maintains that he had insufficient time to review Kirk-sey's file but he makes no substantive showing of any prejudice whatsoever. The Court finds no prejudicial error here. Davis had more than sufficient time to review the discovery material prior to the hearing in December of 2001.\\n\\u00b6 36. Davis also claims that the trial judge unfairly required him to proceed without sufficient time to prepare. The hearing was held on December 3, 2001. In October of 2000, C. Jackson Williams, the former director of the Office of Capital Post-Conviction Counsel was appointed to assist Davis, who initially elected to proceed pro se. In June of 2001, Williams was allowed to withdraw from his advisory counsel position after a Louisiana lawyer entered an appearance on behalf of Davis. On August 22, 2001, the Louisiana attorney was allowed to withdraw, and Williams was again appointed to represent Davis. At that time, the parties agreed that the hearing on Davis's petition for post-conviction relief would be held on December 3, 2001. At the hearing in August of 2001, Williams sought a hearing in late November or early December. In accordance with Williams's wishes, the hearing was set for December. Williams and another attorney from the Office of Capital Post-Conviction Counsel appeared on behalf of Davis at the hearing on December 3, 2001. They sought additional time for the Court to consider their attempt to amend the petition and to prepare a proffer of proof after the amendment was denied. It does not appear that counsel for Davis at the post-conviction hearing requested additional time in which to prepare for the hearing itself. The only request was for additional time to prepare the proffer or to allow the State time to respond to the proffer. In light of the fact that counsel had been appointed three and a half months prior to the hearing after having already served a stint as counsel for Davis, that counsel for Davis agreed to the hearing date, and that counsel did not seek additional time to prepare for the hearing, the Court finds no error in the denial of the motion for continuance.\\n\\u00b6 37. The bulk of the claim here is outside the scope of the remand order entered by this Court. Therefore, no relief is warranted. The Court finds no trial court error in the administration of the post-conviction proceedings.\\nCONCLUSION\\n\\u00b6 38. After a complete review of the trial and appellate record in the underlying case,-the Court finds that Davis has made no showing that he received ineffective assistance of counsel. Davis was represented by two very capable attorneys who, from the face of the record, diligently and zealously represented their client in an uphill fight. The Court further finds no error in the trial court's decisions to decline to expand the hearing outside the explicit authorization provided in this Court's order and to deny Davis's request for continuance. Therefore, we affirm the circuit court's order denying post-conviction relief.\\n\\u00b6 39. AFFIRMED.\\nCOBB, P.J., EASLEY, CARLSON, GRAVES, DICKINSON AND RANDOLPH, JJ., CONCUR. SMITH, C.J., AND DIAZ, J., NOT PARTICIPATING.\\n. Davis has also filed motions to amend his post-conviction pleadings and other motions. The only matters addressed herein are those raised in the appeal from the circuit court's denial of Davis's petition for post-conviction relief. The other motions will be decided in due course.\"}" \ No newline at end of file diff --git a/miss/9025153.json b/miss/9025153.json new file mode 100644 index 0000000000000000000000000000000000000000..0d81030fcaf97cb43dafcb4b45f251aaff4ddf41 --- /dev/null +++ b/miss/9025153.json @@ -0,0 +1 @@ +"{\"id\": \"9025153\", \"name\": \"Antoine Montrell NEWSOM a/k/a Antonio Montrell Newsom a/k/a Antoine Newsome, Appellant, v. STATE of Mississippi, Appellee\", \"name_abbreviation\": \"Newsom v. State\", \"decision_date\": \"2004-05-04\", \"docket_number\": \"No. 2003-CP-00055-COA\", \"first_page\": \"1095\", \"last_page\": \"1098\", \"citations\": \"904 So. 2d 1095\", \"volume\": \"904\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-11T00:38:39.025643+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before SOUTHWICK, P.J., LEE and CHANDLER, JJ.\", \"parties\": \"Antoine Montrell NEWSOM a/k/a Antonio Montrell Newsom a/k/a Antoine Newsome, Appellant, v. STATE of Mississippi, Appellee.\", \"head_matter\": \"Antoine Montrell NEWSOM a/k/a Antonio Montrell Newsom a/k/a Antoine Newsome, Appellant, v. STATE of Mississippi, Appellee.\\nNo. 2003-CP-00055-COA.\\nCourt of Appeals of Mississippi.\\nMay 4, 2004.\\nAntoine Montrell Newsom, Appellant, pro se.\\nOffice of the Attorney General by Deirdre McCrory, attorney for Appellee.\\nBefore SOUTHWICK, P.J., LEE and CHANDLER, JJ.\", \"word_count\": \"1281\", \"char_count\": \"7799\", \"text\": \"CHANDLER, J.,\\nfor the Court.\\n\\u00b6 1. Antoine Newsom filed a motion for post-conviction collateral relief on April 9, 2002. The circuit court denied the petition without an evidentiary hearing on December 18, 2002. Feeling aggrieved, Newsom appeals the following errors:\\n1. WHETHER NEWSOM'S PROBATION WAS ILLEGALLY REVOKED AT THE PROBATION REVOCATION HEARING AND WHETHER HE HAD A RIGHT TO COUNSEL.\\n2. WHETHER APPELLANT'S SENTENCE OF FIVE YEARS FOR RECEIVING STOLEN PROPERTY IS IN VIOLATION OF ARTICLE THREE IN THE MISSISSIPPI CONSTITUTION.\\n3. WHETHER THE CIRCUIT COURT ERRED IN AMENDING NEWSOM'S NAME AFTER HE WAS SENTENCED FOR RECEIVING STOLEN PROPERTY.\\nFACTS\\n\\u00b6 2. On or about December 19, 1998, Newsom attempted to sell a laptop computer at a pawn shop and was arrested after the store owner discovered it was stolen. On April 23, 1999, Newsom was charged with grand larceny for the theft of the computer. Newsom pled guilty to receiving stolen property on November 4, 1999. He was given a five year suspended sentence with two years probation.\\n\\u00b6 3. Newsom was indicted for burglary of a business on April 11, 2001. A warrant was issued for Newsom on May 10, 2001, for burglary, failure to pay supervision fees and court costs. Newsom signed a waiver for a preliminary probation revocation hearing on May 11, 2001.\\n\\u00b6 4. On June 11, 2001, a probation hearing was held and the court revoked New-som's probation and ordered him to serve his five year suspended sentence for receiving stolen property. Newsom filed a motion for post-conviction collateral relief on April 9, 2002. The circuit court denied the petition without an evidentiary hearing on December 18, 2002. Newsom filed a notice of appeal of January 3, 2003.\\n1. WHETHER NEWSOM'S PROBATION WAS ILLEGALLY REVOKED AT THE PROBATION REVOCATION HEARING AND WHETHER HE HAD A RIGHT ' TO COUNSEL.\\n\\u00b6 5. In reviewing the trial court's denial of a petition for post-conviction relief, this Court will not disturb the factual findings of the trial court unless they are determined to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(\\u00b6 6) (Miss.1999).\\n\\u00b6 6. Newsom argues the State should have investigated the alleged violations of his probation before it was revoked. The minimum due process requirements applicable to probation revocation hearings were set forth by the United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S.Ct. 1756, 36 L.Ed.2d 656, (1973), and were incorporated into Mississippi law through Mississippi Code Annotated Section 47-7-37 (Rev.2000). These requirements are: (1) written notice of the claimed violations of probation; (2) disclosure to the probationer of the evidence against him; (3) an opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses (unless the hearing officer finds good cause for not allowing such confrontation); (5) a neutral and detached hearing body or officer; and (6) a written statement by the fact finder as to the evidence relied on and reasons for revoking the probation. Miss. Code Ann. \\u00a7 47-7-37 (Rev.2000).\\n\\u00b6 7. The Mississippi Supreme Court has stated that a conviction is not necessary to revoke probation. Murphy v. Lawhon, 213 Miss. 513, 517, 57 So.2d 154 (1952). Probation may be revoked upon a showing that the defendant \\\"more likely than not\\\" violated the terms of probation. Wallace v. State, 607 So.2d 1184, 1190 (Miss.1992). An indictment is a determination by a grand jury that probable cause exists to hold someone for trial on a charge. Bodne v. King, 835 So.2d 52, 59 (\\u00b6 25) (Miss.2003).\\n\\u00b6 8. Newsom was provided with written notice of the charges against him. The evidence against Newsom was presented to the court in the form of an indictment for burglary and failure to pay supervision and court costs fees. Newsom was given the opportunity to be heard in court and to present evidence that could refute the allegations levied against him.\\n\\u00b6 9. The commission of a felony while on parole is grounds for revocation. Bobkoskie v. State, 495 So.2d 497, 500 (Miss.1986). Furthermore, it is not necessary that parole authorities await the principal trial before commencing proceedings to have parole revoked. Moore v. Ruth, 556 So.2d 1059, 1061 (Miss.1990). This claim for relief is without merit.\\n\\u00b6 10. Newsom argues that he should have been appointed counsel at the revocation hearing. The Mississippi Supreme Court has held that probationers do not \\\"have, per se, a right to counsel at revocation hearings.\\\" Riely v. State, 562 So.2d 1206, 1209 (Miss.1990) (citing Lassiter v. Department of Soc. Servs., 452 U.S. 18, 26, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). In Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the United States Supreme Court reasoned that the right to counsel does not automatically attach at a probation revocation proceeding because these proceedings do not fall within the critical stages of a criminal prosecution where a substantial right of the accused might be affected. In a very limited number of cases, the right to counsel may attach if there is a potential deprivation that accompanies the revocation of probation. Id. at 781-82, 93 S.Ct. 1756. However, the court did not hold that the right to counsel would always attach during a revocation proceeding. Id. at 786, 93 S.Ct. 1756. Instead, the court stated that \\\"the decision as to the need for counsel must be made on a case-by-case basis, in the exercise of sound discretion by the state authority charged with responsibility for administering the probation and parole system.\\\" Id. at 790, 93 S.Ct. 1756.\\n\\u00b6 11.- The record does not reflect that Newsom obtained or requested counsel during the revocation hearing. Even had Newsom done so, there is usually no right to counsel at that stage of criminal proceedings. Riely v. State, 562 So.2d 1206, 1209 (Miss.1990). The probationer has the right to counsel at a revocation hearing only if the issues are complex and the case difficult to develop. Id. The trial court was under no duty to appoint counsel for Newsom during the- revocation proceeding. This assignment is without merit.\\n\\u00b6 12. Newsom's second and third assignments of error address the validity of the judgment entered against him pursuant to his guilty plea of receiving stolen property and, accordingly, are not before the Court at this time. The rules governing post-conviction relief in this state limit the number of counts a petitioner can challenge to one count per filing. Mississippi Code Annotated Section 99-39-9(2) states:\\nA motion shall be limited to the assertion of a claim for relief against one (1) judgment only. If a prisoner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions.\\n\\u00b6 13. Newsom has challenged two counts of which he was convicted in the same petition. By statute, Newsom can only challenge one count in one petition. Therefore, this Court must dismiss his motion as it does not fulfill the statutory requirements of Mississippi Code Annotated Section 99-39-9(2) (Rev.2000).\\n\\u00b6 14. THE JUDGMENT OF THE MARSHALL COUNTY CIRCUIT COURT DENYING POST CONVICTION RELIEF IS HEREBY AFFIRMED AS TO ISSUE I AND DISMISSED AS TO ISSUES II AND III. COSTS OF THIS APPEAL ARE ASSESSED TO MARSHALL COUNTY.\\nKING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS AND GRIFFIS, JJ., CONCUR.\"}" \ No newline at end of file diff --git a/miss/9072206.json b/miss/9072206.json new file mode 100644 index 0000000000000000000000000000000000000000..5cb205564b38b630c5b118baedf3cc1f6cb6a637 --- /dev/null +++ b/miss/9072206.json @@ -0,0 +1 @@ +"{\"id\": \"9072206\", \"name\": \"Willie David STEEN and Willie Mae Steen, Appellants, v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee\", \"name_abbreviation\": \"Steen v. Metropolitan Property & Casualty Insurance\", \"decision_date\": \"2003-10-28\", \"docket_number\": \"No. 2002-CA-01474-COA\", \"first_page\": \"186\", \"last_page\": \"189\", \"citations\": \"858 So. 2d 186\", \"volume\": \"858\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T17:37:34.361019+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before SOUTHWICK, P.J., MYERS and CHANDLER, JJ.\", \"parties\": \"Willie David STEEN and Willie Mae Steen, Appellants, v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.\", \"head_matter\": \"Willie David STEEN and Willie Mae Steen, Appellants, v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.\\nNo. 2002-CA-01474-COA.\\nCourt of Appeals of Mississippi.\\nOct. 28, 2003.\\nWalter Beauregard Swain, Greenville, attorney for appellant.\\nRonald L. Roberts, Columbus, Berkley N. Huskison, attorneys for appellee.\\nBefore SOUTHWICK, P.J., MYERS and CHANDLER, JJ.\", \"word_count\": \"1632\", \"char_count\": \"10361\", \"text\": \"MYERS, J., for the court.\\n\\u00b6 1. Willie David Steen and Willie Mae Steen appeal from the Sunflower County Circuit Court's grant of summary judgment which held that the Steens were not entitled to receive uninsured motorist benefits under an insurance policy issued to them by Metropolitan Property and Casualty Insurance Company (Metropolitan). The trial court ruled that because Steen was not legally entitled to recover from his co-employee then he was not allowed to recover uninsured motorist benefits from his personal insurer. Aggrieved by this result, the Steens perfected this timely appeal raising the following issue:\\nDID THE TRIAL COURT ERR IN FAILING TO PERMIT APPELLANTS FROM COLLECTING UNINSURED MOTORIST BENEFITS UNDER THEIR PERSONAL INSURANCE POLICY AFTER COLLECTING WORKERS' COMPENSATION BENEFITS FROM APPELLANT'S EMPLOYER?\\nSTATEMENT OF THE FACTS\\n\\u00b6 2. Willie David Steen was an employee of Delta Pride Catfish, Inc. in Sunflower County, Mississippi. William Fikes was a co-employee of Steen at Delta Pride. On August 28, 1998, a truck driven by Fikes rear-ended a truck driven by Steen. Both gentlemen were in the course and scope of their respective employment at the time of the accident.\\n\\u00b6 3. Fikes was uninsured but Delta Pride carried workers' compensation insurance which provided statutory benefits to Steen. Steen also carried a personal automobile insurance policy with Metropolitan that contained uninsured motorist coverage. Metropolitan did not provide any insurance to Delta Pride. Despite this fact, Metropolitan denied liability claiming that Steen was not legally entitled to recover from his co-employee and that Steen's policy clearly excluded coverage in such a case.\\n\\u00b6 4. As a result, Steen filed a complaint against Metropolitan and Fikes in the Circuit Court of Sunflower County on August 17, 2001. Both Fikes and Metropolitan filed motions for summary judgment. On May 28, 2002, the court entered a judgment of dismissal as to Fikes under Mississippi Rule of Civil Procedure 54(b). On August 1, 2002, the lower court entered an order granting Metropolitan's motion for summary judgment. On August 28, 2002, Steen filed this appeal.\\nLEGAL ANALYSIS\\n\\u00b6 5. When analyzing a trial court's order granting or denying a motion for summary judgment, this Court applies a de novo standard of review. Aetna Cas. and Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996). Summary judgment may only be granted where there are no genuine issues of material fact such that the moving party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). In addition, \\\"the evidence must be viewed in the light most favorable to the party against whom the motion has been made.\\\" Brown v. Credit Ctr., Inc., 444 So.2d 358, 362 (Miss.1983). With this in mind, we now turn to a discussion of the case.\\n\\u00b6 6. Steen argues that his claim for uninsured motorist benefits for his work-related injury is not barred by the exclusive remedy provision of the Mississippi Workers' Compensation Act because that Act serves a different purpose than the uninsured motorist statute. Metropolitan argues that under the Mississippi uninsured motorist statute as well as Steen's own insurance policy, Steen is entitled to benefits from Metropolitan only if he is legally entitled to recover damages from the owner or operator of the uninsured vehicle.\\n\\u00b6 7. The Mississippi uninsured motorist statute provides:\\nNo automobile liability insurance policy or contract shall be issued or delivered after January 1, 1967, unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle, within limits which shall be no less than those set forth in the Mississippi Motor Vehicle Safety Responsibility Law, as amended, under provisions approved by the commissioner of insurance....\\nMiss.Code Ann. \\u00a7 83-11-101(1) (Rev.1999).\\n\\u00b6 8. The record reveals that the Steens's own automobile insurance policy with Metropolitan contained provisions for payment of uninsured motorist coverage and states that \\\"we will pay bodily injury damages, caused by accident arising out of the ownership, maintenance, or use of an uninsured highway vehicle, which you or a relative are legally entitled to collect from the owner or driver of an uninsured highway vehicle.\\\"\\n\\u00b6 9. The Mississippi Workers' Compensation Act states that \\\"[t]he liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee.... \\\" Miss.Code Ann. \\u00a7 71-3-9 (Rev.2000). In addition, the exclusivity provision of the Mississippi Workers' Compensation Act prohibits an employee injured in the course and scope of his employment by the negligence of a co-employee from recovering from that co-employee. Medders v. U.S. Fid. & Guar. Co., 623 So.2d 979, 984 (Miss.1993); Sawyer v. Head, 510 So.2d 472, 476 (Miss.1987).\\n\\u00b6 10. In Medders, the issue before the court was whether the exclusivity clause of the Workers' Compensation Act barred recovery under an employer's uninsured motorist coverage where the uninsured motorist was uninsured due to the fact that he was a fellow employee acting in the course and scope of his employment. Medders, 623 So.2d at 980. The Court determined that its analysis would depend upon the interpretation of the phrase \\\"legally entitled to recover.\\\" Id. at 984. The Court went on to hold that the \\\"clear meaning of the phrase legally entitled to recover found in the Mississippi [uninsured motorist] statute limits the scope of coverage mandated by the statute to those instances in which the insured would be entitled at the time of injury to recover through legal action.\\\" Id. at 989. The Court reasoned since Medders would have no legal claim against his co-employee acting in the course and scope of his employment at the time of the accident, then he was not \\\"legally entitled to recover\\\" uninsured motorist benefits from his employer's insurer.\\n\\u00b6 11. Steen argues that Medders can be distinguished because in that case the injured employee sought uninsured motorist benefits from his employer's own insurance carrier. Steen contends that he is attempting to collect uninsured motorist benefits directly from his own automobile insurance policy. In other words, the insurance carrier that paid workers' compensation benefits to Steen is an entirely separate business entity from Metropolitan. Therefore, the exclusivity provision of the Workers' Compensation Act should have no effect on the two party automobile insurance contract between Steen and Metropolitan.\\n\\u00b6 12. The Mississippi Supreme Court addressed this very distinction earlier this year. Wachtler v. State Farm, 835 So.2d 23 (Miss.2003). In Wachtler, a City of Waveland employee brought an action against his personal automobile insurer to recover uninsured motorist benefits for injuries caused by a co-employee. Wachtler, 835 So.2d at 24(\\u00b6 2). Wachtler was injured when he was hit by a truck driven by another city employee. Id. Wachtler brought a workers' compensation claim against his employer's insurer. Id. Wacht-ler also brought an uninsured motorist claim against State Farm, his personal automobile insurer. Id. State Farm denied benefits claiming the accident was caused by a co-employee. Id. at 24-25 (\\u00b6 5).\\n\\u00b6 13. State Farm then moved for summary judgment arguing that since the co-employee is immune from liability under the Mississippi Workers' Compensation Act, Wachtler was not legally entitled to collect from the owner or driver of the uninsured motor vehicle. Id. The trial court granted State Farm's motion for summary judgment and the Mississippi Supreme Court affirmed that decision. Id. at 28(\\u00b6 20). The court held that \\\"it is of no moment whether Wachtler is seeking to recover [uninsured motorist] benefits from his personal insurer or from the insurer of his co-employee based upon the legal doctrine of entitlement to recovery.\\\" Id. The Court further held that \\\"based on our ruling in Medders, defining 'legally entitled to recover,' . this Court affirms the ruling of the circuit court which held that Wachtler was not legally entitled to recover any damages from his co-employee and therefore, was not entitled to UM benefits from his personal insurer.\\\" Id.\\n\\u00b6 14. The facts of the case sub judice are analogous to Wachtler. Like Wacht-ler, Steen is attempting to collect uninsured motorist benefits under his personal automobile insurance policy. The accident that generated Steen's claim occurred at work while Steen and his co-employee, Fikes, were in the course and scope of their respective employment. Steen collected statutory benefits from Delta Pride's workers' compensation insurance. Metropolitan did not provide any insurance to Delta Pride. Despite his negligence, Fikes was immune from liability under the Mississippi Workers' Compensation Act. The language in the Mississippi uninsured motorist statute, as well as Steen's uninsured motorist policy, requires that the insured be legally entitled to recover from the owner or operator of the uninsured vehicle.\\nCONCLUSION\\n\\u00b6 15. The Mississippi Supreme Court, in Medders, held that the \\\"clear meaning of the phrase legally entitled to recover found in the Mississippi UM statute limits the scope of coverage mandated by the statute to those instances in which the insured would be entitled at the time of injury to recover through legal action.\\\" Since Steen could not bring a legal action against Fikes at the time of the accident, he was not entitled to recover uninsured motorist benefits from his personal insurer. The trial court's judgment granting Metropolitan's motion for summary judgment is affirmed.\\n\\u00b6 16. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY IS AFFIRMED. COSTS ARE ASSESSED TO THE APPELLANTS.\\nMcMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, CHANDLER AND GRIFFIS, JJ., CONCUR.\"}" \ No newline at end of file diff --git a/miss/9089957.json b/miss/9089957.json new file mode 100644 index 0000000000000000000000000000000000000000..5c99089b7940915b128424889114448cf5863ead --- /dev/null +++ b/miss/9089957.json @@ -0,0 +1 @@ +"{\"id\": \"9089957\", \"name\": \"Earl Harvel SWAN, Jr. d/b/a Big Buck's B-B-Q Smokehouse, Inc., Appellant, v. Jack HILL d/b/a Kar Kleen, Appellee\", \"name_abbreviation\": \"Swan v. Hill\", \"decision_date\": \"2003-07-15\", \"docket_number\": \"No. 2002-CA-00621-COA\", \"first_page\": \"459\", \"last_page\": \"468\", \"citations\": \"855 So. 2d 459\", \"volume\": \"855\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T23:57:22.527090+00:00\", \"provenance\": \"CAP\", \"judges\": \"KING, P.J., BRIDGES, THOMAS, LEE, IRVING AND MYERS, JJ\\u201e CONCUR. SOUTHWICK, P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY MCMILLIN, C.J. AND GRIFFIS, J.\", \"parties\": \"Earl Harvel SWAN, Jr. d/b/a Big Buck\\u2019s B-B-Q Smokehouse, Inc., Appellant, v. Jack HILL d/b/a Kar Kleen, Appellee.\", \"head_matter\": \"Earl Harvel SWAN, Jr. d/b/a Big Buck\\u2019s B-B-Q Smokehouse, Inc., Appellant, v. Jack HILL d/b/a Kar Kleen, Appellee.\\nNo. 2002-CA-00621-COA.\\nCourt of Appeals of Mississippi.\\nJuly 15, 2003.\\nEverette Verhine, Vicksburg, for appellant.\\nKenneth M. Harper, Vicksburg, Wes W. Peters, Jackson, for appellee.\", \"word_count\": \"4012\", \"char_count\": \"23970\", \"text\": \"CHANDLER, J., for the court.\\n\\u00b6 1. The County Court of Warren County granted an easement to Jack Hill over land owned by Earl Harvel Swan, Jr. Swan appealed to the Chancery Court which affirmed the granting of an easement by the County Court. Aggrieved by the judgment, Swan appeals asserting the following issues:\\nI. WHETHER THE TRIAL COURT LACKED JURISDICTION IN AWARDING HILL AN INJUNCTION.\\nII. WHETHER THE TRIAL COURT ERRED IN GRANTING HILL AN EASEMENT BY NECESSITY.\\nII. WHETHER HILL ESTABLISHED THAT HE HAD AN EASEMENT BY PRESCRIPTION.\\nIV. WHETHER THE TRIAL COURT ERRED IN ORDERING AN OVERLY BROAD, VAGUE AND UNDULY BURDENSOME EASEMENT.\\n\\u00b6 2. Finding that the trial court erred, we reverse and render.\\nPROCEDURAL HISTORY\\n\\u00b63. On March 29, 2000, Hill filed a complaint with the County Court of Warren County requesting an easement across Swan's property. He also asked the court to grant him a temporary restraining order or preliminary injunction against Swan. On April 10, 2000, the county court ordered Swan to refrain from altering the use of Hill's land that impeded or conflicted -with the prior historical use of the land.\\n\\u00b6 4. At trial, on March 28 and 29, 2001, the court granted Hill an easement by necessity and the jury awarded $6,000 in compensatory damages and $4,000 in punitive damages. The chancery court affirmed the lower court's decision on appeal, and now Swan appeals to this Court.\\nFACTS\\n\\u00b65. Swan, owner of \\\"Big Buck's BBQ Smokehouse,\\\" and Hill, owner of \\\"Kar Kleen\\\" carwash, are neighboring landowners in Warren County. Swan's restaurant is located on the corner of Clay and Hope Street, facing Clay Street. Clay Street is a major thoroughfare off Interstate 20 entering downtown Vicksburg. Hope Street is a side street which accesses Hill's car-wash, an apartment complex, and a few private homes.\\n\\u00b6 6. Swan's property is located between Clay Street and Hill's carwash. Hill's property does not border Clay Street at any point but does border Hope Street. A bowling alley, Red Carpet Lanes, is located to the side of the carwash and the restaurant. The area in dispute consists of approximately 25 by 62 feet behind the restaurant.\\n\\u00b6 7. All three businesses were developed and owned by Dr. and Mrs. M.E. Hinman over thirty years ago. The Hinmans later sold the three properties separately. Pri- or to buying the carwash in 1985, Hill managed the property for approximately ten years. The Hinmans sold the bowling alley to John Magruder in 1993 and the restaurant to Lawrence Nosser in 1994. In December of 1999, Nosser sold his interest in the restaurant to Swan.\\n\\u00b6 8. Hill, Magruder and Nosser testified that the parking lot which connects the restaurant, carwash, and bowling alley has been open and free of any obstruction for the past thirty years. They stated that Hill's customers access the carwash by either driving through the parking lot of the restaurant and the bowling alley or through the Hope Street entrance. A sign located on Clay Street for over ten years directs the public to the carwash behind the restaurant. Swan acknowledged that he was aware Hill's customers were accessing the carwash through the restaurant's parking lot.\\n\\u00b6 9. After Swan bought the restaurant, he began to refurbish and remodel the premises. The renovations included moving a dumpster to the corner of the property and building a fence that was approximately eight feet tall and extended to the bowling alley's property line. These new changes instigated disputes over the property between Swan and Hill.\\n\\u00b6 10. Swan stated that he moved the dumpster to keep it away from his newly built smoker because he saw it as a possible health hazard. He also said he built the fence in order to protect the restaurant from potential liability due to all the cars traveling across his property.\\n\\u00b6 11. In 1988, Hill built an automatic carwash ten to twelve feet from Swan's property line. A customer must enter the automatic carwash on the side facing the restaurant. Hill testified that Swan placed the dumpster and the fence in front of the automatic carwash impeding his customers' ability to maneuver into the carwash. He also stated that the fence blocked visibility of the carwash from Clay Street. The fence was constructed approximately five days prior to the court's temporary restraining order.\\n\\u00b6 12. Swan testified that the fence did not completely block access to the car-wash. He stated that Hill's customers could access the carwash through Hope Street and through Clay Street by traveling over the right side of the bowling alley's property. Hill testified that it was virtually impossible to maneuver through the bowling alley's property because it was only twenty feet wide and the bowling alley's employees generally parked along that side.\\n\\u00b6 18. Magruder and Nosser testified that Hill had over the years helped maintain the parking lot that connected all properties by filling in potholes. In July of 2000 Hill filled in potholes located on his property and Swan's property. He testified that after completion, Swan recreated the potholes by shoveling out the asphalt and placing it on the doorstep of Hill's office. Swan admitted that he did this act and stated that it was out of \\\"pure meanness.\\\"\\nI. DID THE COUNTY COURT LACK JURISDICTION TO ENTER AN INJUNCTION AGAINST SWAN?\\n\\u00b6 14. The county court \\\"shall have jurisdiction concurrent with the circuit and chancery courts in all matters of law and equity wherein the amount of value of the thing in controversy shall not exceed . the sum of $75,000.\\\" Miss.Code Ann. \\u00a7 9-9-21(1) (Rev.2002). However, Miss.Code Ann. \\u00a7 9-9-23 (Rev.2002) states:\\nThe county judge shall have power to issue writs, and to try matters, of habe-as corpus on application to him therefor, or when made returnable before him by a superior judge. He shall also have the power to order the issuance of writs of certiorari, supersedeas, attachments, and other remedial writs in all cases pending in, or within the jurisdiction of, his court . But he shall not have original power to issue writs of injunction, or other remedial writs in equity or in law except hereinabove specified as being within his jurisdiction unless a judge authorized to do so refers it to the county court.\\nTherefore, the two statutes seem to contradict one another.\\n\\u00b6 15. In Welch v. Bryant 157 Miss. 559, 563, 128 So. 734, 736 (1930), the court held that the county court lacked power to issue an injunction to prohibit someone's further employment. The court held that this was an issue of civil rights and not appropriate for the county court. Id. However, a more recent case, citing Miss.Code Ann. \\u00a7 9-9-21(1), stated that a \\\"claim for specific performance of a contract of employment plus attendant injunctive relief is well within the jurisdiction of the county court on its equity side.\\\" Lee v. Coahoma Opportunities, Inc., 485 So.2d 293, 294 (Miss.1986).\\n\\u00b6 16. Also in Welch the court stated that where \\\"property or property interests\\\" are involved, the county court has appropriate jurisdiction. Welch, 157 Miss, at 563, 128 So. at 736. Two cases have indicated that a county court has jurisdiction to rule on acts of replevin. McCoy v. McRae, 204 Miss. 309, 320, 37 So.2d 353, 356 (1948) and Vansant v. Dodds, 164 Miss. 787, 801, 145 So. 613, 614 (1933). Therefore, this Court finds that the injunc-tive order granted by the county court judge was within the meaning of the relevant statute as that statute has been interpreted by case law.\\nII. DID THE TRIAL COURT ERR IN GRANTING HILL AN EASEMENT BY NECESSITY?\\n\\u00b6 17. \\\"It is well established in our law that an easement may be created by grant, implication, or prescription.\\\" Screws v. Watson, 755 So.2d 1289, 1293(\\u00b6 7) (Miss.Ct.App.2000) (citing Gulf Park Water Co., Inc. v. First Ocean Springs Development Co., 530 So.2d 1325, 1330 (Miss.1988)). \\\"An implied easement must be continuous, apparent, permanent and necessary.\\\" Id. The terms easement by necessity and easement by implication are used interchangeably. Broadhead v. Terpening, 611 So.2d 949, 952-53 (Miss.1992). \\\"The burden of proof is on the claimant seeking an easement by necessity; the party must establish that he is implicitly entitled to the right of way across another's land.\\\" Leaf River Forest Products v. Rowell, 819 So.2d 1281, 1284(\\u00b6 11) (Miss.Ct.App.2002).\\n\\u00b6 18. Mississippi case law establishes that an easement by necessity may be created by proving only reasonable necessity rather than absolute physical necessity. Fourth Davis Island Land Company v. Parker, 469 So.2d 516, 520 (Miss.1985). Therefore, the court will grant an easement where the land is not necessarily landlocked but would be \\\"highly convenient or essential to the full enjoyment of the land.\\\" Id.\\n\\u00b6 19. The concern of the court is only whether alternative routes exist. Id. at 521. If none exist then the easement will be considered necessary. Id. Where other alternatives exist, the court will grant an easement over the neighboring landowner's property if it is the only reasonably necessary alternative available. Id.\\n\\u00b6 20. The trial judge agreed with Hill's assertion that he had obtained an implied easement due to the historical use of the land. It is clear from the record that Hill's property can be accessed from Clay and Hope Streets. Therefore, this Court must determine if accessing Hill's property through Swan's property is the only rea sonably necessary alternative. We conclude that it is not.\\n\\u00b6 21. In determining what is reasonably necessary, the court looks to \\\"whether an alternative would involve disproportionate expense and inconvenience.\\\" Id. \\\"Such a situation would arise when the expense of making the means of access available would exceed the entire value of the property to which access was sought.\\\" Mississippi Power Company v. Fairchild, 791 So.2d 262, 266(\\u00b6 11) (Miss.Ct.App.2001) (quoting Marshall v. Martin, 107 Conn. 32, 139 A. 348, 350 (1927)). If the land would be useless and valueless without the easement then the landowner is entitled to an easement. Id.\\n\\u00b6 22. An easement is reasonably necessary if the landowner's only alternative route is by budding a bridge. Alpaugh v. Moore, 568 So.2d 291, 295 (Miss.1990); Rotenberry v. Renfro, 214 So.2d 275, 278 (Miss.1968); Mississippi Power Company, 791 So.2d at 267(\\u00b6 16). However, the court does not award easements when an alternate route exits but it is longer and more inconvenient. Wills v. Reid, 86 Miss. 446, 452, 38 So. 793, 795 (1905); Ganier v. Mansour, 766 So.2d 3, 8 (Miss.Ct.App.2000); Screws v. Watson, 755 So.2d 1289, 1294(\\u00b6 8) (Miss.Ct.App.2000).\\n\\u00b623. Hill asserts that Swan's obstructions caused his business to suffer lost profits during the year 2000. Joyce Hill, Hill's wife, testified without providing any documentation, that sales from the automatic carwash were $2,000 less than the previous year. Hill also stated that it would take two months to reconstruct the automatic carwash and that the project would be costly. Hill provided no estimate of the cost of remodeling his carwash or of the worth of his business. Due to Hill's failure to establish a disproportionate expense in using the alternate routes available to him, Hill failed to prove that he was entitled to an easement by necessity.\\nIII. WHETHER HILL ESTABLISHED THAT HE HAD AN EASEMENT BY PRESCRIPTION.\\n\\u00b6 24. \\\"An easement by prescription arises where another's property is used for access without consent of the owner.\\\" Property Ownership, in 7 JEFFREY JACKSON & MARY MILLER, ENCYCLOPEDIA OF MISSISSIPPI LAW 19, \\u00a7 60:23 (2001). Prescription is shown by use which is: (1) open, notorious and visible; (2) hostile; (3) under a claim of ownership; (4) exclusive; (5) peaceful; and (6) continuous and uninterrupted for ten years. Rawls v. Blakeney, 831 So.2d 1205, 1207(\\u00b6 8) (Miss.Ct.App.2002).\\n\\u00b625. In Hill's complaint he argued that he obtained a prescriptive easement because of the period of time he had been using the parking lot. However, the period of time does not begin to run until some form of objection to the use is made by the landowner. Sharp v. White, 749 So.2d 41, 42(\\u00b6 8) (Miss.1999). In Hill's situation, Swan did not make an objection until January 2000 when he began to remodel the property. Therefore, the continuous and uninterrupted use of the property did not begin until January of 2000. Prior to Swan's ownership, Hill simply had the enjoyment of a mere permissive right of passage.\\nIV. WHETHER THE TRIAL COURT ERRED IN ORDERING AN OVERLY BROAD, VAGUE AND UNDULY BURDENSOME EASEMENT.\\n\\u00b6 26. Because of this Court's ruling on the preceding issues, this question is now moot.\\n\\u00b6 27. THE JUDGMENT OF THE CHANCERY COURT OF WARREN COUNTY IS REVERSED AND REN DERED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.\\nKING, P.J., BRIDGES, THOMAS, LEE, IRVING AND MYERS, JJ\\\" CONCUR. SOUTHWICK, P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY MCMILLIN, C.J. AND GRIFFIS, J.\"}" \ No newline at end of file diff --git a/miss/9248321.json b/miss/9248321.json new file mode 100644 index 0000000000000000000000000000000000000000..fca95bd11cc504d867de48d858881ee51cabb219 --- /dev/null +++ b/miss/9248321.json @@ -0,0 +1 @@ +"{\"id\": \"9248321\", \"name\": \"J.L. MORAN and Wife, Judy Moran, Appellants, v. Billy SIMS, Appellee\", \"name_abbreviation\": \"Moran v. Sims\", \"decision_date\": \"2004-05-18\", \"docket_number\": \"No. 2003-CA-00370-COA\", \"first_page\": \"1067\", \"last_page\": \"1070\", \"citations\": \"873 So. 2d 1067\", \"volume\": \"873\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Court of Appeals\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:43:57.324579+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.\", \"parties\": \"J.L. MORAN and Wife, Judy Moran, Appellants, v. Billy SIMS, Appellee.\", \"head_matter\": \"J.L. MORAN and Wife, Judy Moran, Appellants, v. Billy SIMS, Appellee.\\nNo. 2003-CA-00370-COA.\\nCourt of Appeals of Mississippi.\\nMay 18, 2004.\\nW. Terrell Stubbs, attorney for appellant.\\nStanley Alex Sorey, attorney for appel-lee.\\nBefore SOUTHWICK, P.J., IRVING and GRIFFIS, JJ.\", \"word_count\": \"1253\", \"char_count\": \"7354\", \"text\": \"SOUTHWICK, P.J.,\\nfor the Court.\\n\\u00b6 1. The chancellor awarded Billy Sims a prescriptive easement across J.L. and Judy Moran's property. The Morans appeal, but we find no error and affirm.\\n\\u00b6 2. Sims owns property surrounded on three sides by the Morans. His deed was recorded in 1985, but the property had been in his family for at least fifty years. Sims used the land to raise horses and cattle. He began construction of a home in 1991. The Morans purchased parcels to the north, east, and west of Sims in 1996. The access from the Sims property to a state highway had historically been on a driveway across the property now owned by the Morans.\\n\\u00b6 3. Sims filed a complaint in 1999 seeking an easement. The court sent the dispute to the Smith County Board of Supervisors so that it could lay out a private road. The parties could not agree on a proposal and the matter was returned to chancery court. A trial was held in 2002. Sims and other witnesses testified that the driveway had been used by Sims or his predecessors for at least the past fifty years. Moran did not appear at trial and presented no witnesses. Sims was found to have a prescriptive easement giving him access from the highway to his property.\\nDISCUSSION\\n1. Prescriptive easement\\n\\u00b6 4. An easement may be acquired by ten years possession, just as may fee simple title. Rutland v. Stewart, 630 So.2d 996, 999 (Miss.1994). Prescription occurs if there is ten years of use that is open, notorious, and visible; hostile; under a claim of ownership; exclusive; peaceful; and continuous and uninterrupted. Myers v. Blair, 611 So.2d 969, 971 (Miss.1992). Permission from the record title owner will make the use permissive and not adverse. Id.\\n\\u00b65. Moran argues on appeal that Sims never proved the negative, that is, never proved that Sims and his predecessors did not have permission to use his property. The elements for a prescriptive easement will be examined individually.\\na.Open, notorious and visible\\n\\u00b6 6. At trial, Sims testified that he had used the driveway running across Moran's property since he purchased the parcel in 1985. His family had used the driveway for at least the past fifty years. Among the testimony was from a school bus driver who testified that he had driven the bus down the driveway to pick up children in 1956-1957. When Moran purchased his property in 1996, the driveway and a house on Sims' land were both in existence. This was sufficient under this factor.\\nb. Hostile\\n\\u00b6 7. Moran argues that Sims and his predecessors had implied permission to use the property. That allegedly is proved by the fact that the owners of the land across which the driveway ran never objected to his use. A prescriptive easement cannot originate from a permissive use of land because it would not be hostile. Sharp v. White, 749 So.2d 41, 42 (Miss.1999). However, the absence of an objection is not the equivalent of consent.\\n\\u00b6 8. Here,' there was no evidence that Sims or his predecessors had permission to use the driveway. Consent may be inferred from evidence, but it will not be presumed in the absence of evidence. There is nothing in the record from which such an inference can be drawn. The Morans argue that the very obviousness of the use indicates that it must have been consensual. That is not so. If the use of an easement is inconsistent with the title of the servient estate owner, that is the needed hostility. Consent must be shown. Here it was not.\\nc. Claim of ownership\\n\\u00b6 9. Sims presented testimony which showed a claim of ownership, including the fact that he purchased gravel for the driveway. There was testimony on that from the person whom Sims hired to deliver and spread the gravel. This element was properly established.\\nd. Exclusive\\n\\u00b6 10. \\\"Exclusive\\\" use does not mean that no one else used the driveway. Exclusivity here means that the use was consistent with an exclusive claim to the right to use. There was evidence that the driveway was used by the Sims family and those whom they implicitly permitted to do so. The Sims' home was the only home located on the driveway.\\ne. Peaceful\\n\\u00b6 11. Sims testified that there was no controversy concerning the driveway prior to Moran's purchase of property. There was no evidence of a dispute with prior owners. By the time that Moran complained, the period of prescription had long since run.\\nf. Continuous and uninterrupted for ten years\\n\\u00b6 12. Sims recorded the deed to his property in 1985. His family had owned the property for at least fifty years before. During this time, the driveway had been in use. That is ten years, and more.\\n\\u00b6 13. The elements of adverse possession were sufficiently proven.\\n2. Description of easement\\n\\u00b6 14. Moran claims that the chancellor erred in granting Sims a prescriptive easement until an accurate description of the easement was determined. The testimony presented at trial established that the driveway ran across Moran's property from Highway 531 in more or less a straight line to the Sims property. The driveway is approximately 216 feet long and 30 feet wide. There is no factual dispute as to its location. This issue concerns a perceived need to have a certain kind of description prepared before title can be confirmed.\\n\\u00b6 15. There are a variety of accepted methods of describing real property. A valid means is by reference to monuments. Natural monuments include rivers, lakes, streams, or trees; artificial monuments include such landmarks as fences, walls, houses, streets, or ditches. Descriptions employing monuments may in part also employ a \\\"metes and bounds\\\" description. That method uses a measurement of length (metes) along certain boundary lines (bounds). Monuments, natural or artificial, can disappear or be altered, so there is an inherent danger in long-time use of monuments. The risk does not invalidate the use. What is needed in any description is accuracy and clarity. Descriptions using monuments are valid even when there is no surveyor's angle and distance description, so-called \\\"courses and distances\\\" descriptions. The validity of references to roads as they presently exist has been confirmed by the Supreme Court. Armstrong v. Itawamba County, 195 Miss. 802, 818, 16 So.2d 752, 757 (1944). In that case, an easement by prescription was awarded to the public on a road \\\"as it now runs.\\\" Id. Witnesses testified that there had been no change in the location of the road as far as anyone could remember. This was enough of a description.\\n\\u00b6 16. The chancellor granted an easement in the \\\"existing road.\\\" There was no evidence that the driveway's location had changed over the years. This was sufficient. Should either party now or eventually wish to employ a surveyor so that a different kind of description can be obtained, that is certainly within the rights of landowners. There is no requirement on these facts that the chancellor order such a survey.\\n\\u00b6 17. THE JUDGMENT OF THE CHANCERY COURT OF SMITH COUNTY IS AFFIRMED. ALL COSTS ARE ASSESSED TO THE APPELLANTS.\\nKING, C.J., BRIDGES, P.J., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.\"}" \ No newline at end of file diff --git a/miss/9514885.json b/miss/9514885.json new file mode 100644 index 0000000000000000000000000000000000000000..83dcbb4bcc7d3be4b96aafc04ee1fde3cf3586e3 --- /dev/null +++ b/miss/9514885.json @@ -0,0 +1 @@ +"{\"id\": \"9514885\", \"name\": \"G. W. Osborn et al. v. Samuel Noble\", \"name_abbreviation\": \"Osborn v. Noble\", \"decision_date\": \"1872-04\", \"docket_number\": \"\", \"first_page\": \"449\", \"last_page\": \"458\", \"citations\": \"46 Miss. 449\", \"volume\": \"46\", \"reporter\": \"Mississippi Reports\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T23:01:13.303343+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"G. W. Osborn et al. v. Samuel Noble.\", \"head_matter\": \"G. W. Osborn et al. v. Samuel Noble.\\n1. Subrogation \\u2014 principal and surety \\u2014 creditor. \\u2014 It is well settled that, if a creditor obtains a mortgage or other security from the principal debtor, the surety is entitled to its protection. So, if the surety has obtained indemnity from his principal, the creditor may avail of it, and have satisfaction of his debt out of it.\\n2. Same \\u2014 indemnity against contingent liability. \\u2014If the indemnity is against a contingent liability, there can be no substitution until the liability has become absolute.\\n3. Same \\u2014 same\\u2014distinction between a security made to the surety TO SECURE THE DEBT, AND ONE TO SAVE HIM HARMLESS EROM A CONTINGENT liability. \\u2014 If a mortgage or other security is given to the surety, not to secure the debt or provide a fund for its payment, but to save him harmless from a contingent liability or loss, that contingency must come, and the injury be sustained, before a right to the indemnity inures to the creditor.\\ni. Same \\u2014 same \\u2014 same \\u2014 security for personal benefit oe surety.\\u2014 Where the contract is for the personal benefit of the surety, in opposition to the idea of a pledge for the debt, or providing means for its payment, the creditor can claim only such rights and remedies as the surety had. If he has not been damnified, and the conditions of the mortgage or other contract of indemnity are unbroken, the surety himself could assert no remedy, nor could the creditor claiming through him, and in his stead, have substitution, i' - ,\\n5. Same \\u2014 SAME \\u2014WHERE THE SECURITY IS EOB THE DEBT, AS WELL AS the ultimate protection OE the surety. \\u2014 Where the security is for the debt, as well as the ultimate protection of the surety, it inures to the creditor; and it is of no moment whether it was given at the time the principal obligation was incurred, or afterward, or whether it was known at the time to the creditor or not. The creditor has an interest in it; becomes a cestui que trust; the fund or property at once assumes a trust character, and the surety can do no act which will discharge the trust or release the property from the burden to the prejudice of the creditor.\\nAppeal from chancery court, of Hinds county,, second district. Tabbell, J.\\nOn 12th. March, 1869, appellee filed his bill of complaint against appellant, Robert Strong, Mrs. Sarah Castings and Samuel Castings, her husband, as administratrix and administrator, of S. 0. Capers, deceased, Mrs. Philip .Myers, executrix of Philip Myers, deceased, the personal representatives of James Winters, when known, and John Shelton and Gerard B. Downing, as defendants. The allegations of the bill of complaint are, that on the 27th of February, 1858, appellee \\u201csold and conveyed, by deed duly executed and recorded,\\u201d to said S. O. Capers, certain lands in said Hinds county, describing the same, \\u201ctogether with twenty-three slaves and farming implements, stock, furniture and provisions, for the sum of $29,620.\\u201d To secure the payment of which said Capers executed his notes to said Noble, appellee, dated February 25, 1858, with James Winters, Philip Myers and Robert Strong, as joint and several makers and sureties, as follows: One for $3,500 due January 1, 1859; one for $4,000 due January 1, 1860 ; one for $4,500 due January 1, 1861; four for $5,000, $5,000, $5,120 and $2,500, respectively, due January, 1862,1863,1864 and 1865 consecutively. That to induce the said Winters, Myers and Strong to become jointly bound as afoi\\u2019esaid, the said Capers agreed to secure them, or to Secure and save them harmless in the liabilities thus incurred by a deed of trust on the property conveyed to him by complainant, S. Noble. That, accordingly, a few days thereafter, to wit, on the 10th day of March, 1858, Capers conveyed said property to the defendants, G. B. Downing and John Shelton, trustees, in trust for the purpose aforesaid, and for the benefit and indemnity of the said Winters, Myers and Strong, by deed of that date, duly recorded. That it was expressed in this deed that \\u201cCapers [was to retain the use and possession until default made in Sthe payment of the notes aforesaid; and further providing Jfor the sale of the property to re-imburse any one of the said sureties who might pay any of said notes, after the ^maturity thereof to the payee or holder thereof.\\u201d That said deed was filed for record on the 10th day of March, 1858, and recorded on the 22d day of March., 1858, and a transcript of the record thereof is made an exhibit to said bill of complaint.\\nThat, by the execution of said deed of trust, for the purpose aforesaid, a trust was created as well for the complainant as for the said sureties. That on the 22d day of July, 1859, after the maturity of the first of the notes referred to in said deed of trust, and before the maturity or payment of the remainder of the other of said notes, said Capers sold and conveyed said lands to Gf. W. Osborn.\\nThat at the solicitations of Osborn, and to induce him to purchase said lands, Capers prevailed on Winters, Myers and Strong to enter on the record of the probate court and on the margin of the recorded deed of trust before mentioned the words: \\u201cThe undersigned hereby release the lands described in this deed of trust from the lien of the same,\\u201d which words were signed by them and by Downing and Shelton on the same day of the conveyance by Stephen Capers to Osborn. That this release of said deed of trust was made without complainant\\u2019s knowledge or consent, and the same did not come to his knowledge until a short time before exhibiting his bill of complaint. That Osborn had knowledge as well from this d\\u00e9ed of trust as from some of the parties thereto, that the notes for the purchase-money were outstanding and unpaid at the time he purchased said lands from Capers.\\nThat on the 18th of December, 1866, complainant recovered judgment on the last five of the notes of Capers, Winters, Myers and Strong, for $23,392 25, against the executrix of Myers, and against Strong. That Capers and Winters were not sued because each of them was dead and their estates insolvent. Execution issued on this judgment and I was returned \\u201cno property found.\\u201d A transcript of this] judgment, etc., is made an exhibit to the bill of complaint. !\\nThat the personal property embraced in the deed of trust was in part disposed of or consumed by Capers, and the slaves emancipated, etc. That the whole property was never greater iu value than the debt due for it to complainant, and the lands constituted the most substantial and valuable security for this debt.\\nThat the said release, or attempted release, of said lands from the lien created by the deed of trust was wholly inoperative as to complainant, being, as he avers, without his consent or knowledge, and without the payment of the debt it was designed to secure, and that the said deed of trust is still an \\u00e9xisting security which complainant is in equity entitled to enforce for the payment of his debt.\\nThat complainant is without remedy at law, and that unless he can be subrogated to the rights of Winters, Myers and Strong in the deed of trust aforesaid, his debt will be entirely lost to him, owing to the insolvency of the parties liable. The prayer of this bill of complaint is to the following effect: That complainant \\u201cbe sub-, stituted to the rights of the said Winters, Myers and Strong as they existed prior to the execution of said pretended release, which complainant prays may be set aside or held for nought. That an account, etc., be taken, and a sale decreed of the property in the deed of trust for the payment of complainant\\u2019s debt,\\u201d etc.\\nTo this bill there was a demurrer, which was overruled, from which there was an appeal to this court.\\nT. J. & F. A. R. Wharton, for appellants.\\nHarris & Withers, for appellee.\\nThe argument of counsel on both sides are too long for insertion, and it is not possible for the reporter to do justice to them in any attempt to abreviatethem, and therefore they are omitted.\", \"word_count\": \"3601\", \"char_count\": \"20432\", \"text\": \"SlMKALL, J. :\\nThe complainant filed his bill in chancery, to be substituted to the benefits of a deed in trust, executed by S. O. Capers, to protect and indemnify Winters, Myers and Strong, who were his sureties on several promissory notes, amounting in the aggregate to $29,620, given to the complainant, Noble, for a plantation and slaves, sold and conveyed by Noble to Capers in 1858.\\nThe complainant grounds his right upon doctrines well established in the courts of equity: \\\"That, if a creditor obtains a mortgage or other security from the principal debtor, the surety is entitled to its protection. So, if the surety has obtained indemnity from his principal, the creditor may avail of it, and have satisfaction of his debt out of it.\\\" 1 Story's Eq., \\u00a7 481. For a statement of the general principle see, also, Bowen v. Hoskins, 45 Miss. 183.\\nIn disposing of this case, it is necessary to look somewhat closely into the principle invoked : to trace its origin and see upon what considerations it rests; what is its extent and limitation. It is universally conceded by the jurists, that the principle known in our jurisprudence as \\\"substitution,\\\" was brought from the civil laws, where it was known as \\\" cessio actionem.\\\" As, if the surety pays voluntarily or compulsorily, the creditor must make good to the surety any actions or remedies he has against the principal debtor, also all the accessories thereof, his actions against other sureties and his pledges. If the creditor has put himself in such condition that he cannot assign his securities and remedies against the principal and other sureties, he is barred of his remedy against him upon whom he makes claim. Potier Pan., book 46, \\u00a7 5. In Hopeland v. Bank of Cumberland, 10 Leigh, 220, it was thought to be wise to recur to the civil law, to derive aid in determining the scope of the doctrine of substitution. There could be no \\\"cessio actionem \\\" if there never had been a cause of action and a remedy. Where one is bound for the debt of another and pays it, equity will treat the securities and remedies of the creditor, against the principal debtor, as still subsisting for the benefit of the surety. Some of the cases hold, that the rule only embraces collateral securities, while others have so extended it as not to treat the princi pal debt extinguished by the payment, if there were any special advantages incident to it, but consider such payment as operating as an assignment of the debt-itself, in order that the surety may avail of the incidental privileges. As if it be a judgment with a lien on property, the judgment will be considered, by an advance of the money, as purchased and equitably assigned, so that the surety may have the priority of the lien, against other creditors.\\nThe rule, that a creditor is equally provided for, when the principal has created an indemnity for his surety, does not arise out of any notion of mutual contract between the parties, but is rather the offspring of natural equity, independent of contract, to prevent the surety, in the first instance, from being harrassed with the debt, and then turn him round to seek redress out of the collateral indemnity.\\nWhere the conveyance is made to or for the security of property not by the terms of the instrument specifically bound to the creditor, the primary intent apparent on the face of the writing is that the property is not pledged to him for the debt. The extent of the burdens, trusts and conditions annexed to a grant, is to be learned by reading the instrument, and gathering from it the intent and purpose. The owner has a right (if he does no fraud, -or violates no prohibition of law) to dispose of his property at pleasure. Courts enforce contracts, or give redress for the violation of them, as made by the parties. By construction, they cannot enlarge them beyond their fair intent and meaning, nor, on the other hand, so limit them as to fall short of that. An subrogating, therefore, the creditor to the surety's place,' as to any indemnity given him, there can be neither increase nor diminution of rights, as they actually existed in favor of the surety. If, therefore, the indemnity is against a contingent liability, there can be no substitution until the liability has become absolute. Bank of Virginia v. Boiseau, 12 Leigh, 370; 10 ib. 222.\\nIf a mortgage or other security is given to the surety, not to secure the debt or provide a fund for its payment, but to save harmless from a contingent liability or loss, that contingency must come, or the injury be sustained before a right to the indemnity inures to the creditor. Where the contract is for the personal benefit of the surety, in opposition to the idea of 'a pledge for the debt, or providing means for its payment, the creditor can claim only such rights and remedies as the surety had. If he has not been damnified, and the conditions of the mortgage or other contract of indemnity are unbroken, the surety himself could assert no remedy, nor could the creditor claiming through him and in his stead have substitution. Ohio Life Ins. Co. v. Reeder et al., 18 Ohio, 46. If, however, the principal has assigned a fund for the payment of the debt, and the surety pays it, he is entitled to re-imbursement out of the funds. 2 Burr. 202.\\nAn analysis of the cases in this state and elsewhere will, we think, show the distinction we have attempted to enforce though not always adverted to, that where the creditor seeks to appropriate to his debt the collateral indemnity of the surety, it must appear that the security is for the debt as well as the ultimate protection of the surety. If such be its character, it is of no moment whether it was given at the time the principal obligation was incurred or afterward, or whether it was known at the time to the creditor or not. The creditor has an interest in it, and becomes a cestui que trust. The fund or property at once takes on a trust character, and the surety can do no act which will discharge the trust or release the property from the burden, to the prejudice of the creditor. Thus in Paris v. Hulet, 26 Vt., the mortgage to the surety was upon the condition that the mortgagor would pay the notes and hold the surety harmless. So in Eastman v. Foster, 8 Metc. (Mass.), and Collin ads. Roberts Colvin, 8 Gratt. 363. In Ohio Life Ins. Co. v. Ledyard, it was said the indemnity was for the better security and protection of the debt. In Moses v. Murgatroyd, 1 Johns. Ch., it was said by Chancellor Kent, that it made no difference whether the creditor knew of the securities or not, they were trusts created for the better protection of the debt, \\\"and the court will see that they fulfill that design.\\\" In Homer v. Savings Bank, 7 Conn. 484, after a somewhat' patient examination of the books, it was declared by the court that the principle to be extracted from the cases was, that if collateral security is given, or property assigned for the better protection or payment of the debt, it shall be made effective for that purpose, not only to the immediate parties, but to whomsoever is entitled to the debt. It rests upon the intent of the transaction. When created for such an object, the indemnities become trusts, which courts of chancery will carry out, \\\"and see that they fulfill the design.\\\"\\nIn Daniel v. Joyner et al., 3 Ired. Eq. 913 (to which reference was made by counsel for appellee), the terms of the trust deed were \\\"to save harmless B\\\" (the surety), \\\"and whenever required by the creditors of A (the grantor), or by any surety who may be threatened with loss by reason of his suretyship, the trustee shall proceed to sell sufficient property to answer the ends of this deed in trust.\\\" There the creditors on request to have a sale to pay their debts, and the surety was not obliged to remit until he was injured, it was held, that the trustee need not remit until the surety was actually damnified. The trustee had sold all the property before the suit was brought, and the points of law arose on its distribution among several claimants.\\nWhile the language of the courts when speaking to the general proposition has not, perhaps, been quite harmonious, we think the principle has been stated and enforced, that if the security be purely personal, as to indemnify, and save harmless the surety, and not for the better protection of the debt, or intended as a fund for its payment, a trust does not attach to it for the creditor. In such instances no breach occurs until the surety has been damnified, nor is there an action or remedy to which the creditor can be substituted. The general doctrine which we have traced with more or less distinctness elsewhere has, we think, been laid down with emphasis by our predecessors in Dick et al. v. Maury, 9 Smedes & Marsh. 456. The terms of the mortgage are not given, though it is inferable from the statement of the case it was to recover the notes. In Ross v. Wilson, 7 ib. 766, speaking of the character of the security, the court say: \\\"The Conveyance was intended not only to indemnify Gayle and Doyle against their liability as sureties, but manifestly to secure the payment of the debt.\\\" The condition was, that \\\"Woods, the mortgagor, would pay the note to Ross, indorsed by Doyle and Gayle.\\\" \\\"The deed was to be void on condition that the debt was paid, otherwise not;\\\" therefore \\\"Gayle and Doyle were by the conveyance made trustees for Ross (the creditor), therefore they could not release or discharge the trust to the prejudice of Ross.\\\" In Bibb v. Martin, 14 Smedes & Marsh., Hartzogg and Slater were sureties on an injunction bond. The condition of the mortgage was, if \\\"Vickers shall well and truly pay and discharge said bonds, in case by law he shall be required to pay them, and if at all events he shall save entirely harmless and free from all costs and damages and loss on account of said bonds, said Hartzogg and Slater, then this obligation to be void. The complainants were denied substitution to the mortgage, because there had been no breach of the condition, 'Vickers had not been required by law to pay the bond.' The right is governed by the instrument which created it, and the creditor by substitution can have no higher right than the surety. \\\" In Bush v. Stamps, 26 Miss., the condition of the deed in trust was, that should judgment be at any time rendered on the note against Shelby, and said Pearson should fail to satisfy the same, the trustee shall sell, etc. Here the relief was denied upon the reasoning in Bibb v. Martin, supra, the \\\"rights being tried by the deed which creates them,\\\" there was no breach of contract, no remedy had accrued to the surety, for \\\"no judgment had been recovered on the note against Shelby.\\\" In Carpenter, executrix, v. Bowen, 42 Miss. 28, the securities protected the debt by authorizing a sale upon non-payment at maturity.\\nThe decisions in this court have, with more clearness than elsewhere, observed the distinction between a security given to the surety, to save him against loss from being compelled to pay, or doing so voluntarily, and those which, while providing for that, affix to the property a trust for the payment of the debt, in such wise as that it is designed to be also a security for the debt. The instrument itself being referred to discloses its purpose, as embracing the more limited or enlarged sense. The deed in trust recites that Capers is willing and anxious to secure and save harmless his sureties. Therefore, he makes the conveyance upon the condition that, \\\"if the sureties, or either of them, shall pay the notes, or any part thereof, to the payee or holder, then f the trustees, at the request of him or them who has paid, J shall make sale, and quoMes as payments shall be made; j sale is directed for re-imbursement. It will be observed this \\\" indemnity is merely personal, to save harmless from loss, and to re-imburse for actual credits from time to time made (upon the debt. There is no breach of this contract until an actual loss has been incurred, nor is authority to sell conferred until there has been an actual advance of money. It is not a pledge or security for the debt to Noble. If there had been no forfeiture as to the sureties and no right to sell, substitution does not place the creditor in a stronger or better position than the sureties had.\\nWe are of opinion, therefore, that the demurrer ought to have been sustained to the bill.\\nJudgment here accordingly.\"}" \ No newline at end of file diff --git a/miss/9537585.json b/miss/9537585.json new file mode 100644 index 0000000000000000000000000000000000000000..06c8ebc2d815d649c63410706c500b08f29fc52e --- /dev/null +++ b/miss/9537585.json @@ -0,0 +1 @@ +"{\"id\": \"9537585\", \"name\": \"Betty Jo SNIPES v. Donald E. SNIPES\", \"name_abbreviation\": \"Snipes v. Snipes\", \"decision_date\": \"1983-05-25\", \"docket_number\": \"No. 54260\", \"first_page\": \"924\", \"last_page\": \"924\", \"citations\": \"431 So. 2d 924\", \"volume\": \"431\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T23:02:00.818641+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BROOM, P.J., and HAWKINS and DAN M. LEE, JJ.\", \"parties\": \"Betty Jo SNIPES v. Donald E. SNIPES.\", \"head_matter\": \"Betty Jo SNIPES v. Donald E. SNIPES.\\nNo. 54260.\\nSupreme Court of Mississippi.\\nMay 25, 1983.\\nRoy 0. Parker & Associates, Tupelo, for appellant.\\nMitchell, Eskridge, Voge, Clayton & Beasley, Dennis W. Voge, Tupelo, for appel-lee.\", \"word_count\": \"55\", \"char_count\": \"356\", \"text\": \"Appeal from Chancery Court, Lee County; James E. Bost, Chancellor.\\nBefore BROOM, P.J., and HAWKINS and DAN M. LEE, JJ.\\nAFFIRMED.\"}" \ No newline at end of file diff --git a/miss/9543918.json b/miss/9543918.json new file mode 100644 index 0000000000000000000000000000000000000000..7e9f6e0098026f6a74e419d9e9c89fd021293349 --- /dev/null +++ b/miss/9543918.json @@ -0,0 +1 @@ +"{\"id\": \"9543918\", \"name\": \"Basil Guice TRUNZLER, IV v. Lillis Wadsworth TRUNZLER\", \"name_abbreviation\": \"Trunzler v. Trunzler\", \"decision_date\": \"1983-05-25\", \"docket_number\": \"No. 54168\", \"first_page\": \"1115\", \"last_page\": \"1116\", \"citations\": \"431 So. 2d 1115\", \"volume\": \"431\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T23:02:00.818641+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before PATTERSON, C.J., and ROY NOBLE LEE and ROBERTSON, JJ.\", \"parties\": \"Basil Guice TRUNZLER, IV v. Lillis Wadsworth TRUNZLER.\", \"head_matter\": \"Basil Guice TRUNZLER, IV v. Lillis Wadsworth TRUNZLER.\\nNo. 54168.\\nSupreme Court of Mississippi.\\nMay 25, 1983.\\nAdams, Forman, Truly, Ward, Smith & Bramlette, Everette Truly, Natchez, for appellant.\\nJ. Walter Brown, Jr., Natchez, for appel-lee.\\nBefore PATTERSON, C.J., and ROY NOBLE LEE and ROBERTSON, JJ.\", \"word_count\": \"906\", \"char_count\": \"5297\", \"text\": \"PATTERSON, Chief Justice,\\nfor the Court:\\nBasil Guice Trunzler, IV, filed a petition in the Chancery Court of Adams County to require Lillis Wadsworth Trunzler, his divorced wife, to account for all sums paid by him to her for the support of their children. The trial court sustained a demurrer to the petition and denied the respondent an award of an attorney's fee for defense of the cause, hence this appeal.\\nAs stated in Brown v. Elton Chalk, Inc., 358 So.2d 721, 721 (Miss.1978), \\\"Since this appeal is from an order sustaining a demurrer, the facts alleged by the complainants and facts which are reasonably and necessarily implied therefrom must be taken as true.\\\"\\nIn the petition for an accounting, filed September 15, 1981, it was alleged that all child support payments directed under the terms of the divorce decree, dated February 27,1981, of $1,250.00 per month for each of the two children had been paid, and, that his former wife has not worked, has no visible means of support, has no money or property, and no bank accounts, other than that mentioned in her deposition of February 13, 1981, wherein she testified she had $1,100.00 in an account left from a $2,400.00 payment made to her on February 1, 1981. Petitioner further averred that his former wife is meeting her own obligations out of the child support money rather than placing any funds not immediately needed by the children in a savings account for their future use, all in violation of her fiduciary relationship.\\nAssuming the allegations as true the issue is whether a divorced wife may be required to account to her former husband for child support payments paid by him, where it is alleged she is using the payments for her own obligations.\\nMississippi Code Ann. \\u00a7 93-5-23 (Supp.1982), is broad in concept and lends itself, we think, to the present difficulty. It provides in part:\\nWhen a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody and maintenance of the children of the marriage, . . and may, if need be, require sureties for the payment of the sum so allowed. The court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require .\\nWe are of the opinion the court may modify a decree for the support of children so as to require a divorced wife to periodically account for child support payments, if, but only if, the circumstances so require. We think the petition should allege a change of circumstances not anticipated at the time of the entry of the original decree. This, of course, accords with familiar law, Shaeffer v. Shaeffer, 370 So.2d 240 (Miss.1979).\\nThe petition before us does not aver the children are improperly cared for or that the support payments are excessive but rather expresses dissatisfaction because the mother, a fiduciary to the children, is allegedly appropriating some of the funds to her own use. We are of the opinion that the mother is, of course, a fiduciary with her children and may be required to account to them but we do not think she is in a fiduciary relationship with her former husband. For this reason we are of the opinion the cause of action should have been brought by and on behalf of the children. We therefore hold the trial court did not err in sustaining the demurrer to the petition.\\nAs this is a case of first impression in our state we have examined the decisions of other states which have addressed the issue. We are persuaded the sounder principle of law is followed by those jurisdictions which hold the divorced wife may be required to account for child support payments, but the cause must arise by or on behalf of the children, to whom the monies belong, rather than the divorced husband. Tyndall v. Tyndall, 270 N.C. 106, 153 S.E.2d 819 (1967); Goodyear v. Goodyear, 257 N.C. 374, 126 S.E.2d 113 (1962); Glenn v. Glenn, 281 S.E.2d 83 (N.C.App.1981); Zande v. Zande, 3 N.C.App. 149, 164 S.E.2d 523 (1968).\\nThe respondent has filed a cross-appeal assigning as error the trial court's denial of attorney's fee and additionally has filed a motion for an attorney's fee in this Court. The allowance of an attorney's fee lies within the discretion of the trial court and will not be disturbed on appeal unless it appears to be manifestly wrong. Walters v. Walters, 383 So.2d 827 (Miss.1980); Barber v. Barber, 234 Miss. 89, 105 So.2d 630 (1958). The respondent did not substantiate the need for an attorney's fee, or a reasonable amount needed for such and under these circumstances we are unable to say the trial court was manifestly wrong in denying such. We likewise think an attorney's fee should be denied here, there being insufficient evidence of the need therefor.\\nAFFIRMED.\\nWALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.\"}" \ No newline at end of file diff --git a/miss/9549504.json b/miss/9549504.json new file mode 100644 index 0000000000000000000000000000000000000000..bd5e0813690b5ca94a6ed3a9ae33da0e78668074 --- /dev/null +++ b/miss/9549504.json @@ -0,0 +1 @@ +"{\"id\": \"9549504\", \"name\": \"REAGAN EQUIPMENT COMPANY v. VAUGHN GIN COMPANY\", \"name_abbreviation\": \"Reagan Equipment Co. v. Vaughn Gin Co.\", \"decision_date\": \"1983-01-26\", \"docket_number\": \"No. 53545\", \"first_page\": \"1045\", \"last_page\": \"1049\", \"citations\": \"425 So. 2d 1045\", \"volume\": \"425\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T22:32:20.446808+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before PATTERSON, C.J., and ROY-NOBLE LEE and PRATHER, JJ.\", \"parties\": \"REAGAN EQUIPMENT COMPANY v. VAUGHN GIN COMPANY.\", \"head_matter\": \"REAGAN EQUIPMENT COMPANY v. VAUGHN GIN COMPANY.\\nNo. 53545.\\nSupreme Court of Mississippi.\\nJan. 26, 1983.\\nGerald, Brand, Watters, Cox & Hemle-ben, Richard T. Starrett, Jackson, for appellant.\\nHenry, Barbour & DeCell, William H. Barbour, Yazoo City, for appellee.\\nBefore PATTERSON, C.J., and ROY-NOBLE LEE and PRATHER, JJ.\", \"word_count\": \"1791\", \"char_count\": \"10893\", \"text\": \"PATTERSON, Chief Justice, for the Court:\\nIn September of 1979, Sam Dixon, President of Vaughan Gin Company, appellee, contacted Reagan Equipment Company, appellant, concerning mechanical problems he was experiencing with a large gin engine. Bobby Nichols, service manager at appellant's Jackson office, sent a repairman to inspect the engine and it was determined an extensive overhaul was necessary to make it serviceable.\\nDixon came to the appellant's office to discuss the cost of repairs and after inspecting some used engines and considering their cost, authorized the overhaul of his engine. He testified the appellant told him he could repair the engine for around $12,000. This was contradicted by Nichols who stated Dixon was not given a cost estimate because this was time consuming and Dixon needed the engine for the approaching ginning season. In any event Dixon authorized the engine's overhaul and additional repairs on the engine starter and clutch for an additional $2400 and overtime totaling $1,500. The engine was repaired and returned to Dixon with a bill for $34,438.93. After no payment was forthcoming, appellant sought a judgment for the repairs and a lien on the engine. The appellee admitted owing $15,900, but denied any obligation in excess of that sum.\\nDuring trial Reagan attempted to introduce the bill and its reasonableness into evidence through Nichols, the service manager. The court would not permit its introduction by Nichols because the invoice was prepared in appellant's home office in Harvey, Louisiana. The judge reasoned a witness from the home office was essential to its introduction, however, Dixon was called by the appellant as an adverse witness and gave evidence to the amount of the bill whereupon it was introduced.\\nNichols was then recalled and interrogated concerning the amount of the bill and its reasonableness. The appellee again objected stating that Nichols did not prepare the bill and therefore could not testify as to its amount or reasonableness. Upon the objection being sustained Reagan made a proffer through Nichols who gave testimony of similar bills for the type and extent of the work performed and it was his opinion the repairs to the engine were reasonable and necessary.\\nAfter lunch Reagan called one of its Jackson office employees as a witness, whereupon Dixon requested permission to voir dire the proposed witness concerning a possible violation of \\\"the rule.\\\" Alexander, the proposed witness, testified he had lunch with Reagan's counsel and Nichols during which he discussed with the attorney his upcoming testimony concerning the introduction of the invoice into evidence. He testified he did not hear Nichols testify and that his testimony was not discussed. After this testimony, upon motion of Dixon, Alexander was excluded as a witness because \\\"the rule\\\" had been violated.\\nReagan then rested and Dixon moved to strike the evidence and dismiss the declaration on the ground that plaintiff did not establish that he was qualified and licensed to do business within the state, and there was no evidence presented as to the reasonableness of the bill charged to the defendant. Reagan responded, stating that an affidavit attached to the declaration evidenced the reasonableness of the repairs and requested permission to reopen the case so he might introduce a Certificate of Authority from the Secretary of State that appellant was licensed and qualified to do business in Mississippi. The court denied appellant's request to reopen and granted defendant's motion for dismissal with prejudice. Moreover, although the declaration was dismissed, appellant was granted a judgment in the amount Dixon admitted owing in his answer, $15,900.\\nReagan assigns as error the court's refusal to allow it to reopen its case to introduce the Certificate of Authority from the Secretary of State evidencing it was licensed and qualified to do business in Mississippi. Undoubtedly, the opportunity to reopen should be granted when the opposing party would not be surprised and when a refusal would deprive a litigant of the opportunity to introduce material evidence.\\nIn Nelson v. Home Ins. Co., 353 So.2d 763, 765 (Miss.1977), we cited Marshall v. Oliver Electric Manufacturing Company, 235 So.2d 244 (Miss.1970), wherein this Court held:\\nAs a general rule, even in formal hearings in a regular trial court, the reopening of a case for the purpose of showing facts vital to the issue involved, is liberally allowed by the trial judge and a failure to do so may be considered an abuse of judicial discretion. (Emphasis added).\\nSee also Scott v. McClinton, 214 Miss. 364, 58 So.2d 913 (1952). When appellant requested permission to reopen for the limited purpose of offering the Certificate into evidence, no prejudice would have resulted to appellee, and no delay in the proceedings would have occurred, it was error for the court to refuse appellant's motion in our opinion.\\nAppellant next contends the court erred in excluding the testimony of Alexander because \\\"the rule\\\" had been violated.\\nThe purpose of \\\"the rule\\\" is to prevent witnesses from being in the courtroom while other witnesses testify so as to insure their testimony will not be affected by that of other witnesses. See 6 Wigmore, Evidence \\u00a7 1837-1838 (Chadbourn rev. 1976); Fed.R.Evid. 615 advisory committee note. Cf. Ross v. Segrest, 421 So.2d 1234 (Miss.1982); Commercial Credit Equipment Corp. v. Kilgore, 221 So.2d 363 (Miss.1969); Moore v. Chambers, 199 So.2d 261 (Miss.1967); Grimes v. Grimes, 197 Miss. 315, 20 So.2d 662 (1945); Wilson v. Peacock, 111 Miss. 116, 71 So. 296 (1916); Bernheim v. Dibrell, 66 Miss. 199, 5 So. 693 (1889). The voir dire reveals Alexander was not in the courtroom and the conversation between counsel and Alexander related only to his upcoming testimony concerning the invoices.\\nOf course a court has the discretion during or before trial, to exclude witnesses from the courtroom. However, we think, the attorneys in the case may consult with the witnesses who have been put under \\\"the rule.\\\" In Scott v. State, 218 Miss. 892, 56 So.2d 839, 840 (1952), defendant's attorney requested permission to confer with their witnesses \\\"altogether.\\\" In denying this motion, the trial court said:\\n\\\"When the witnesses were sworn before the taking of testimony began, counsel for Defendant stated to the Court that he wished the rule invoked, whereupon, the rule was invoked....\\nThe Court will allow counsel all the time reasonably necessary for him and his associate and his client to confer with the witnesses but not altogether.\\\" (Emphasis added).\\nAppellant assigned as error this action by the court. This Court held:\\nAlthough the court assigned as a reason the fact that appellant had put all of the witnesses under the rule, and this would not usually be the proper basis for such action, it is apparent that the court's ruling at this stage of the trial was based also on a desire to conserve time and to expedite the hearing....\\nThe cases relied upon by appellant, White v. State, 1876, 52 Miss. 216; Allen v. State, 1884, 61 Miss. 627, and Shaw v. State, 1901, 79 Miss. 21, 30 So. 42, are not applicable, because there the trial courts wholly refused to permit defendants' attorneys to confer with witnesses. There was no such .refusal here, but on the contrary the court expressly granted counsel the right to confer with the witnesses, but at that late stage in the trial denied a conference with the witnesses \\\"altogether.\\\"\\nWhere a defendant indicted for murder was refused permission to confer with his witnesses after the state rested we held in Shaw v. State, 79 Miss. 21, 24-25, 30 So. 42 (1901):\\nIt was fatal error to refuse the defendant the privilege of conferring with his own witnesses, whether they were under the rule or not. This has been so held where his counsel were refused this right. White v. State, 52 Miss., 216; Allen v. State, 61 Miss., 627 . It is often of vital importance that both defendant and his counsel should, together, confer with his witnesses in the progress of a trial. The right cannot be restricted except that the trial court may impose reasonable limitations as to the length of time of the conference.\\nWe are of the opinion from the voir dire that the trial court abused its discretion in not permitting Alexander to testify.\\nIt is next argued there was error in excluding testimony as to the sum of the repairs. The court disallowed the introduction of the bill for repair through Nichols because Nichols was not in charge of billing but referred the information upon which the bill was prepared to its home office in Harvey, Louisiana. We think it unnecessary to reach this argument because the invoice was subsequently introduced through an adverse witness and such error, if any, was cured.\\nThe next issue is whether the court erred in not allowing Nichols' testimony as to the bill's reasonableness once it was introduced. Appellee contends there was no evidence that Nichols knew the prices of the parts, nor did he vouch for the correctness of the charges, nor testify as to the reliability of the charging procedure. Therefore, appel-lee argues Nichols was not qualified as an expert to express his opinion as to the reasonableness of the charges.\\nThe record establishes, however, that Nichols had knowledge of the invoices since he supervised the repairs, received a copy of the invoice sent to Dixon and had been engaged in this field of employment for many years. The court's refusal to permit Nichols to testify on reasonableness was not because Nichols was not an expert, but rather that he had been in the courtroom and had no knowledge of the amount of the bill except through Dixon's testimony.\\nThis Court has held that a witness may testify as to value based on experience. Dyer v. Hobert, 150 Miss. 857, 117 So. 244 (1928). Nichols' proffered testimony was that he had twenty years experience in repairing large engines, was familiar with repairs similar to those on the gin in question and had received a copy of the bill sent to the gin company. From this we are of the opinion he was qualified to give testimony as to the reasonableness of the bill introduced into evidence and that the court erred in not permitting his testimony.\\nREVERSED AND REMANDED.\\nWALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.\\nDAN M. LEE, J., takes no part.\\n. See both Miss.Unif.Cir.Ct.R. 3.04 and Fed.R. Evid. 615 for a statement of the rule regarding exclusion of witnesses from the courtroom during trial.\"}" \ No newline at end of file diff --git a/miss/9561726.json b/miss/9561726.json new file mode 100644 index 0000000000000000000000000000000000000000..d07ac4b321e3cb3ff2d8134bf924391220e746b2 --- /dev/null +++ b/miss/9561726.json @@ -0,0 +1 @@ +"{\"id\": \"9561726\", \"name\": \"Jimmy W. BASSETT v. Mattie BASSETT\", \"name_abbreviation\": \"Bassett v. Bassett\", \"decision_date\": \"1983-02-02\", \"docket_number\": \"No. 53597\", \"first_page\": \"1359\", \"last_page\": \"1360\", \"citations\": \"425 So. 2d 1359\", \"volume\": \"425\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T22:32:20.446808+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before BROOM, P.J., and BOWLING and DAN M. LEE, JJ.\", \"parties\": \"Jimmy W. BASSETT v. Mattie BASSETT.\", \"head_matter\": \"Jimmy W. BASSETT v. Mattie BASSETT.\\nNo. 53597.\\nSupreme Court of Mississippi.\\nFeb. 2, 1983.\\nRobert C. Grenfell, Jackson, for appellant.\", \"word_count\": \"47\", \"char_count\": \"311\", \"text\": \"Appeal from Chancery Court, Smith County; J.W. Walker, Chancellor.\\nAleita M. Sullivan, Mendenhall, for appel-lee.\\nBefore BROOM, P.J., and BOWLING and DAN M. LEE, JJ.\\nAFFIRMED.\"}" \ No newline at end of file diff --git a/miss/9610987.json b/miss/9610987.json new file mode 100644 index 0000000000000000000000000000000000000000..f4e84ccece884a4a4ab22d7f4a2f38e29115f0ce --- /dev/null +++ b/miss/9610987.json @@ -0,0 +1 @@ +"{\"id\": \"9610987\", \"name\": \"W. E. WELDON v. Malcolm GREENWAY\", \"name_abbreviation\": \"Weldon v. Greenway\", \"decision_date\": \"1979-12-19\", \"docket_number\": \"No. 51533\", \"first_page\": \"MIII\", \"last_page\": \"MIII\", \"citations\": \"377 So. 2d 923\", \"volume\": \"377\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:08:09.944675+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before ROBERTSON, P. J., and LEE and BOWLING, JJ.\", \"parties\": \"W. E. WELDON v. Malcolm GREENWAY.\", \"head_matter\": \"W. E. WELDON v. Malcolm GREENWAY.\\nNo. 51533.\\nSupreme Court of Mississippi.\\nDec. 19, 1979.\\nW. A. Grist, Boudie A. Jaggers, Pontotoc, for appellant.\\nCharles D. Thomas, Pontotoc, for appel-lee.\", \"word_count\": \"50\", \"char_count\": \"325\", \"text\": \"Appeal from Chancery Court, Pontotoc County; George F. Adams, Chancellor.\\nBefore ROBERTSON, P. J., and LEE and BOWLING, JJ.\\nAFFIRMED.\"}" \ No newline at end of file diff --git a/miss/9674208.json b/miss/9674208.json new file mode 100644 index 0000000000000000000000000000000000000000..125bc5fdce5eae5ce4c7469806a6650f47e9b48f --- /dev/null +++ b/miss/9674208.json @@ -0,0 +1 @@ +"{\"id\": \"9674208\", \"name\": \"Ernest M. GRAHAM v. The CITY OF KOSCIUSKO, Mississippi, and United States Fidelity and Guaranty Company\", \"name_abbreviation\": \"Graham v. City of Kosciusko\", \"decision_date\": \"1976-11-16\", \"docket_number\": \"No. 48848\", \"first_page\": \"60\", \"last_page\": \"65\", \"citations\": \"339 So. 2d 60\", \"volume\": \"339\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T23:39:49.815341+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.\", \"parties\": \"Ernest M. GRAHAM v. The CITY OF KOSCIUSKO, Mississippi, and United States Fidelity and Guaranty Company.\", \"head_matter\": \"Ernest M. GRAHAM v. The CITY OF KOSCIUSKO, Mississippi, and United States Fidelity and Guaranty Company.\\nNo. 48848.\\nSupreme Court of Mississippi.\\nNov. 16, 1976.\\nCrawley & Ford, David E. Crawley, Jr., William R. Ford, Kosciusko, for appellant.\\nBrooks & Guyton, William D. Brooks, John D. Guyton, Kosciusko, for appellee.\\nBefore GILLESPIE, C. J., and ROBERTSON and LEE, JJ.\", \"word_count\": \"2890\", \"char_count\": \"17156\", \"text\": \"ROBERTSON, Justice, for the Court:\\nThis is a workmen's compensation case. The question presented for decision is one of first impression in Mississippi.\\n' The claimant and appellant, Ernest M. Graham, appeals from the order of the Circuit Court of Attala County reversing an order of the Workmen's Compensation Commission which approved an award of $60,347.15 to Mary M. Graham, his wife, for nursing services rendered in the home from July 8, 1964 through December 18, 1973.\\nThe circuit court found that no notice of the necessity for nursing services and no request for such services were given to the employer, City of Kosciusko, or the carrier, United States Fidelity and Guaranty Company, until February 23, 1972, and that payment for such nursing services should not begin until February 23, 1972. The court further found that the overwhelming weight of the evidence was that only four hours nursing services per day were needed by the claimant, and that claimant's wife was entitled to payment for four hours nursing services per day at $2.25 per hour for each day from and after February 23, 1972, less a period of sixteen days when claimant was hospitalized.\\nOn July 8, 1964, claimant suffered an industrial accident while working as an electrical lineman for the city of Kosciusko. He was left a paraplegic, paralyzed from the waist down. The first request for nursing services was made by letter, dated February 23,1972, from Crawley and Ford, claimant's attorneys, to,United States Fidelity & Guaranty Company, Greenwood, Mississippi. That letter stated:\\nAttention: Mr. Jack Toler\\nRe: Mr. Ernest Graham, Ethel, Mississippi v. City of Kosciusko, Employer, and U. S. Fidelity & Guaranty Co., Carrier\\nDear Jack:\\nYou will please find attached hereto a copy of a letter which has just been delivered to us by Mrs. Mary Graham, wife of Mr. Ernest Graham, above named whom we represent, dated 22 February, 1972, signed by Dr. Charles L. Neill, Neurosurgeon of Jackson, Mississippi, which is self-explanatory.\\nMrs. Graham has just advised us that it is going to be absolutely necessary for either one of two things to be done with reference to the care of the physical needs of her husband. They are (1) employ an LPN for at least one 8 hour shift every day or, (2) pay her for her services in rendering and caring for her husband's physical needs because of his paraplegic condition.\\nWe have checked and determined that the local rate charged by an LPN is $1.50 per hour, or $12.00 for an 8 hour shift. This would amount to an average of approximately $362.00' per month. Mrs. Graham has authorized us to advise that she is willing to accept the sum of $250.00 per month in lieu of your employing and paying an LPN.\\nIn view of the above, we are hereby formally requesting that you initiate the immediate payment to Mrs. Graham of $250.00 per month for her services under the statutory obligation you have for the furnishing of necessary medical care and paying necessary medical expenses.\\nPlease advise.\\nDOCTORS NEILL, NEILL AND HODGES\\nNeurological Surgery\\nSuite 214 Medical Arts Building\\nJackson, Mississippi 39201\\nFebruary 22,1972\\nTO WHOM IT MAY CONCERN\\nRE: Mr. Ernest Graham Because Mr. Ernest Graham has been paraplegic since his accident in 1964, Mrs. Graham's time has been fully occupied with his nursing care and attention over the past several years.\\nThis nursing care will continue as a responsibility. Mrs. Graham is unable to do any outside gainful employment because of the demanding responsibility of Mr. Graham's condition.\\nSIGNED:\\n/s/ Charles L. Neill, M.D.\\nCharles L. Neill, M.D.\\nOn June 19, 1972, Graham filed his first petition to be furnished nursing services. In his petition claimant stated that the carrier had paid him the workmen's compensation benefits to which he was entitled and that the carrier was paying his doctors' and drug expenses in accordance with the workmen's compensation act.\\nClaimant then stated in his petition:\\n\\\"3. Your said claimant would further show unto this Honorable Commission that he has called upon the said United States Fidelity & Guaranty Company, carrier herein named, to also furnish him with the attendance of at least a licensed practical nurse for a period of time not less than eight (8) hours per day for the reason that his physical condition has deteriorated to that point where he is in absolute medical need thereof inasmuch as he is completely paralyzed from his waist down and without any physical control whatsoever over that part of his body and the physical functions of his urinary and bowel tracts.\\\" (Emphasis added).\\nClaimant closed his petition with the prayer that the carrier:\\n\\\"[W]ill be ordered and directed to either furnish your said claimant with the nursing care his condition requires or that it pay unto his wife, Mrs. Mary Graham, the sum of $392.87 per month for her services so rendered.\\\"\\nThe petition uses only the present and future tenses; nowhere does it request payment for past nursing services or for services prior to February 23, 1972. The first hearing was on August 7, 1972, and at this and all subsequent hearings the testimony adduced was as to present and future nursing needs.\\nOn January 30,1973, the attorney-referee rendered his opinion. He found that the employer and carrier should pay to claimant's wife:\\n\\\"[F]or her tending to, caring for and being present with claimant, in lieu of special nursing attention, not to exceed sixteen (16) hours per day for the period commencing July 8, 1964, until September 12, 1972, the date of his surgery by Dr. W. H. Merrell, and, further, not to exceed eight (8) hours per day from and after September 12, 1972, all at the rate of the average weekly wage paid to licensed practical nurses, provided, however, that the defendants shall not be liable for such expenses, as ordered herein, during the periods from and after July 8, 1964, when claimant was and is confined to a hospital or other such place where he may receive active nurse's care;\\nUpon review by the full Commission, the Commission by a two-to-one vote affirmed the order of the attorney-referee, but remanded the cause to the attorney-referee:\\n\\\"[F]or a hearing to obtain evidence so as to allow his entering a supplemental order making more specific the Attorney Referee Order of January 30, 1973, including, but limited to, the following matters:\\n1. The rate of pay and the specific number of hours for which payment is to be made for nursing services commencing July 8,1964, and ending on the date prior to the Attorney Referee hearing to be held in this cause, thereby establishing a total dollar amount due the wife of the claimant herein for her providing of nursing services from the date of July 8,1964, through the day prior to the date of the next hearing in this cause. The maximum number of hours per day shall be limited to that set out in the Attorney Referee Order of January 30, 1973.\\n2. The rate of pay which shall be paid to the wife of the claimant herein for the providing of nursing services from the date of the next hearing of this cause; such rate of pay shall be based upon the gross average weekly wage paid licensed practical nurses in the general area of the claimant's domicile and shall be paid for eight hours per day, seven days per week.\\n\\\"IT IS FURTHER ORDERED that the hourly rate of pay to which claimant's wife shall be entitled shall be adjusted on January 1, 1974, and on the same date of each succeeding year, and such adjustment shall correspond to the percentage of increase or decrease in the cost of living for the previous year, as evidenced by the National Consumer Price Index.\\\"\\nFollowing this Order of the two Commissioners is this statement of J. T. Hill, Chairman of the Commission:\\n\\\"Chairman Hill concurs in remanding this cause to an Attorney Referee for the purposes stated hereinabove with the exception that payment to the wife of the claimant herein for her providing nursing services should commence on the date the Motion to Controvert was filed or on a prior date that a formal demand, if any, was made for such services, and not from July 8, 1964.\\\"\\nUpon remand to the attorney-referee, the claimant moved to file an amended petition to pray for nursing services from and after July 8, 1964, and the employer and carrier renewed their Motion for Leave to Amend their Pleadings.\\nThe attorney-referee was of the opinion that he was limited in the remand order of the Commission to receiving testimony only on the number of hours per day required for nursing services since July 8, 1964, and the hourly rate of pay for a licensed practical nurse since July 8, 1964. He, therefore, overruled both the claimant's and the employer's and carrier's motions to amend their pleadings, and limited testimony to the number of hours of nursing services rendered in the home and the rate of pay for licensed practical nurses.\\nOn March 8, 1974, the attorney-referee entered his Order finding that Mrs. Ernest M. Graham, wife of claimant, was entitled to a total of $60,347.15 for nursing services performed by her in the home for the period commencing July 8, 1964 and ending December 18,1973, broken down as follows:\\nIn spite of the fact that the claimant only prayed for $392.87 per month for Mrs. Graham, beginning February 23, 1972, the attorney-referee found that Mrs. Graham was entitled to these amounts:\\nOn July 8, 1974, the Commission, by a two-to-one vote, affirmed the attorney-referee's supplemental order of March 8, 1974, Chairman Hill again voting to affirm the payment for nursing services subsequent to February 24,1972, but voting to reverse the order of the attorney-referee for the payment of nursing services rendered prior to February 24, 1972.\\nDr. Charles L. Neill, neurosurgeon and claimant's principal doctor, .testified on cross-examination that four hours a day would be sufficient to take care of Graham's nursing needs, if there were \\\"somebody to cook his meals and feed him and that sort of thing.\\\"\\nDr. S. L. Bailey, general practitioner and claimant's family physician, testified that there should be someone available to answer his needs within a reasonably short period of time. , .\\nDr. W. H. Merrell, a urologist of Jackson, Mississippi, testified that on September 12, 1972, he operated on the claimant and removed the obstruction in the bladder neck which mostly remedied his urological problem. Dr. Merrell testified that strictly from a urological standpoint, the claimant needed no nursing services after he returned home.\\nThe claimant and his wife both testified that Mrs. Graham had to give the claimant an enema every two or three days, which required at least an hour's work on her part each time. For a rather long period of time there was daily catherization and additional cleanup of the claimant and his bed.\\nThe Grahams had three children. Mrs. Graham had no domestic help and, by dent of working long hours every day, was able to look after the children, the home, and the special nursing needs of her husband. Her testimony and that of the claimant hopelessly intermingled his special nursing needs with her general household duties of preparing meals, washing clothes and cleaning the home.\\nThe question of paying a wife for special nursing services rendered her husband in the home is a matter of first impression in Mississippi. Larson makes this observation:\\n\\\"The commonest controversy is the question whether practical nursing services performed by the claimant's own wife may be made the subject of a claim for nursing expenses. The earlier cases denied the allowance, [footnote omitted, on the ground that the wife did no more than she was bound to do as an affectionate spouse. Later cases, however, have permitted the charge, on the reasoning that the employer, by statute, has the affirmative duty of furnishing this kind of nursing service, [footnote omitted]. If he has not done so, and if the wife then takes over these duties in addition to her regular household work and does exactly what a hired nurse would have had to do, the charge is proper.\\\" 2 Larson Workmen's Compensation Law, \\u00a7 61.13 (1976).\\nMississippi's statute on this subject [Mississippi Code Annotated section 71-3-15 (1972)], provides in part:\\n\\\"(1) The employer shall furnish such medical, surgical, and other attendance or treatment, nurse and hospital service, medicine, crutches, artificial members, and other apparatus for such period as the nature of the injury or the process of recovery may require. If the employer fails to provide the same after request by the injured employee, such injured employee may do so at the expense of the employer. The employee shall not be entitled to recover any amount expended by him for such treatment or services, except in emergency cases, unless he shall have requested the employer to furnish the same and the employer shall have refused or neglected to do so, or unless the nature of the injury required such treatment and services and the employer or his superintendent or foreman, having knowledge of such injury, shall have neglected to provide the same. Nor shall any claim for medical or surgical treatment be valid and enforceable, as against such employer, unless within twenty (20) days following the first treatment the physician giving such treatment furnish to the employer and the commission a report of such injury and treatment, on a form prescribed by the commission. The commission may, however, excuse the failure to furnish such report within twenty (20) days when it finds it to be in the interest of justice to do so, and may, upon application by a party in interest, make an award for the reasonable value of such medical or surgical treatment so obtained by the employee.\\\"\\nIt is undisputed that the claimant did not request his employer or carrier to furnish him nursing services in his home until February 23, 1972, and even then his request was couched in language that indicated that it was for present and future nursing needs. The only alternative to notice and request is outlined in this language of the statute:\\n\\\"[0]r unless the nature of the injury required such treatment and services and the employer or his superintendent or foreman, having knowledge of such injury, shall have neglected to provide the same.\\\"\\nBut all paraplegics do not require or need the same attention and treatment, nor do they need the same nursing services. One paraplegic might leave home, drive himself to work, work all day, and drive himself home, without a moment's trouble. Another might need almost constant attention and treatment. Each case must be considered on its own merits; there is no standard solution for every case regardless of the facts.\\nThe defendants were never heard on their defenses of no notice, no request, no doctor's prescription, nor on their defenses of the several statutes of limitation.\\nWhen the claimant tried to file an amended petition to cover nursing services for the past eight years, and when the defendants tried to amend their answer to assert these defenses, the attorney-referee overruled their motions to amend, under the impression that the Commission on remand to him had limited the further hearing to the hours worked each day and the rate of pay per hour in the community.\\nWe are not able to decide these matters because they were not heard and litigated below. The record is lacking in testimony and evidence on these crucial issues.\\nWe have no difficulty in finding that the order of the circuit court providing that Mrs. Graham be paid $2.25 per hour for four hours nursing service a day from and after February 23, 1972, to Marfch 26, 1975, less a period of 16 days during which claimant was hospitalized, should be affirmed. The overwhelming weight of the evidence supports this finding.\\nHowever, we are of the opinion that the circuit court should be reversed and this cause remanded to the Workmen's Compensation Commission so that the claimant can file an amended petition to put in issue payment for nursing services rendered by his wife to him in the home from July 8, 1964, to February 23, 1972. The employer and carrier should be allowed to file an amended answer raising all defenses that they desire to make. A full hearing should be afforded both sides. Required nursing services should be separated from general household duties and work that a wife ordinarily performs in and about the home in looking after and caring for her husband and children. There should be testimony from doctors as to how many hours per day would be required for special nursing services for the claimant from July 8, 1964, to February 23, 1972.\\nAFFIRMED IN PART, REVERSED IN PART, AND REMANDED.\\nGILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ\\\" and SMITH, SUGG, WALKER, BROOM and LEE, JJ., concur.\"}" \ No newline at end of file diff --git a/miss/9677003.json b/miss/9677003.json new file mode 100644 index 0000000000000000000000000000000000000000..7c205504301114cf66e1e453449335287d121075 --- /dev/null +++ b/miss/9677003.json @@ -0,0 +1 @@ +"{\"id\": \"9677003\", \"name\": \"Sardon LIVINGS et al. v. James BIGGS et al.\", \"name_abbreviation\": \"Livings v. Biggs\", \"decision_date\": \"1975-12-08\", \"docket_number\": \"No. 48404\", \"first_page\": \"747\", \"last_page\": \"748\", \"citations\": \"323 So. 2d 747\", \"volume\": \"323\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:32:39.272013+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.\", \"parties\": \"Sardon LIVINGS et al. v. James BIGGS et al.\", \"head_matter\": \"Sardon LIVINGS et al. v. James BIGGS et al.\\nNo. 48404.\\nSupreme Court of Mississippi.\\nDec. 8, 1975.\\nSingley & Morgan, Columbia, for appellants.\", \"word_count\": \"69\", \"char_count\": \"462\", \"text\": \"Appeal from Chancery Court, Pearl River County; Howard L. Patterson, Jr., Chancellor.\\nLarry O. Norris, Davis T. Fortenberry, Hattiesburg, for appellees.\\nBefore GILLESPIE, C. J., and SMITH and ROBERTSON, JJ.\\nAffirmed.\\nRODGERS, P. J., and PATTERSON, INZER, SUGG and WALKER, JJ., concurring.\\nBROOM, J., not participating.\"}" \ No newline at end of file diff --git a/miss/9721896.json b/miss/9721896.json new file mode 100644 index 0000000000000000000000000000000000000000..7a0d949a27ad665e12a443ee7a9746a0f24d4de1 --- /dev/null +++ b/miss/9721896.json @@ -0,0 +1 @@ +"{\"id\": \"9721896\", \"name\": \"ODEN CONSTRUCTION COMPANY v. Mrs. Frankie McPHAIL et al.\", \"name_abbreviation\": \"Oden Construction Co. v. McPhail\", \"decision_date\": \"1969-11-24\", \"docket_number\": \"No. 45440\", \"first_page\": \"586\", \"last_page\": \"591\", \"citations\": \"228 So. 2d 586\", \"volume\": \"228\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T19:39:34.009684+00:00\", \"provenance\": \"CAP\", \"judges\": \"GILLESPIE, P. J\\u201e and PATTERSON, INZER and ROBERTSON, JJ., concur.\", \"parties\": \"ODEN CONSTRUCTION COMPANY v. Mrs. Frankie McPHAIL et al.\", \"head_matter\": \"ODEN CONSTRUCTION COMPANY v. Mrs. Frankie McPHAIL et al.\\nNo. 45440.\\nSupreme Court of Mississippi.\\nNov. 24, 1969.\\nRehearing Denied Dec. 22, 1969.\\nDudley W. Conner, Hattiesburg, for appellant.\\nHeidelberg, Sutherland & McKenzie, Hattiesburg, Watkins & Eager, James A. Becker, Elizabeth Hulen, Jackson, for ap-pellees.\", \"word_count\": \"2797\", \"char_count\": \"16912\", \"text\": \"SMITH Justice.\\nMrs. Frankie McPhail, Brenda Carol McPhail and Kristy Lea McPhail, the widow and minor children of James McPhail, deceased, who are appellees here, were plaintiffs in the court below in an action for damages for his wrongful death, brought against appellant, Oden Construction Company, a Mississippi corporation, under Mississippi Code 1942 Annotated section 1453 (1956). The case was tried and the issues submitted to a jury which returned a verdict for plaintiffs-appellees in the sum of $100,000. The present appeal is by Oden Construction Company from the judgment entered pursuant to that verdict.\\nThe facts supporting the jury's verdict, may be summarized as follows. Oden Construction Company contracted with Main Street Baptist Church of Hattiesburg to construct an auditorium and certain additions to its church building. A subcontract was let by Oden to Howell Steel Company, under the terms of which the latter firm undertook to supply and erect the structural steel and joists as called for in the prime contract. The subcontract contained a restrictive clause providing that Howell would not \\\"sublet, assign or transfer any part of this subcontract without prior approval of (Oden) the contractor.\\\"\\nNotwithstanding this clause, Howell made an oral arrangement with Capital Erection and Engineering Company, Inc., to install the structural steel beams which Howell would supply.\\nJames McPhail was an employee and vice president of Capital.\\nPrior to McPhail's injury, he and other employees of Capital had been on the job, engaged in erecting steel, for several months. It is beyond question that, while there had been no formal consent or approval, Oden was fully aware that the steel beams were being installed by Capital and knowingly acquiesced in, or tacitly consented to, this departure by Howell from the provisions of the subcontract. There was evidence too that Oden knew that Howell customarily used Capital to erect steel, and knew that Howell's practice, under circumstances such as those in the present case, was to supply the steel and to associate Capital to erect it. There was also testimony that both before and at the time of the negotiations between Oden and Howell, which culminated in the subcontract with Howell, Oden was informed of this arrangement. In any event, no objection was made by Oden either to Howell or Capital, that Capital was doing this work at any time during the months which preceded McPhail's death.\\nOn February 10, 1967, McPhail received the injury, which subsequently caused his death, when a wooden scaffold, constructed by Oden, collapsed and he fell 16 feet to the concrete floor.\\nAs already noted, Oden had sublet to Howell that portion of its contract requiring that it supply and install certain steel beams. Under Howell's arrangement with Capital, Howell supplied the beams and Capital installed them. However, it was necessary, and a part of the procedure adopted by Oden, that holes be bored in the masonry walls in advance for the attachment of the beams by Capital's employees. The boring of these holes was done by Oden's employees, working ahead of Capital's employees, who followed along behind them and attached the steel, both doing their work from the same scaffolding. The evidence was ample to support a finding that this practice, in the nature of an assembly-line operation, not only was known to, but had been adopted by, Oden. It was also in evidence that this method had been used earlier when beams were installed elsewhere in the building. It was not abandoned, but was continued, after McPhail had sustained his injury.\\nOn the afternoon or evening of the day preceding McPhail's injury, Oden's employees had been kept overtime to drill the holes necessary for the attachment of the steel beams by Capital's employees in a back corridor of the building. This was done by Oden in order that the work of installing the beams would not be delayed but might go forward immediately the next day.\\nThe scaffolding from which this work was done was constructed by Oden. It was 16 feet high, 4 feet in width, 40 to 45 feet in length, and completely filled the corridor in which the work was being done from wall to wall. There was, of course, no room in the corridor for other scaffolding, and no alternative reasonable method has been suggested whereby Capital's employees could have done the work except by the use of the scaffold.\\nWhen McPhail stepped upon the scaffold, it gave way as certain nails pulled loose and he fell 16 feet to the floor, breaking his hip. There was testimony tending to show that the method used by Oden to construct the scaffolding rendered it unsafe as a place to work and that its collapse was due to faulty construction. On the other hand, Oden contended that its collapse was due to a concentration of weight by the \\\"piling\\\" of steel beams upon it in one place by Capital's employees, an eventuality, it is argued, that Oden could not reasonably have anticipated or foreseen. Testimony supporting this contention was rebutted by evidence that there had been no such piling or concentration of steel. The jury resolved this factual issue in favor of appellees.\\nUndisputed medical evidence in the record is to the effect that, following what appeared to be satisfactory progress toward recovery from his injury, McPhail had died 7 days afterward from a pulmonary embolism originating at the site of the hip fracture.\\nThe main thrust of appellant's argument for reversal is predicated upon the premise that, by the express terms of the written subcontract between Oden and Howell, Oden owed no duty to McPhail as an employee of Capital as (1) Oden had never authorized Howell to sublet to Capital the work of attaching the beams and (2) the express provisions of the subcontract required Howell to supply or furnish its own tools and facilities for doing the work contemplated by the subcontract.\\nIn Raich v. Aldon Construction Co., 129 Cal.App.2d 278, 285, 276 P.2d 822, 827-828 (1954) the Court said:\\n\\\"The general rule is that a general contractor on a construction job who is in control of the premises is burdened with the duty to use ordinary care to provide a safe place for employees of a subcontractor to work,\\n\\\"As a part of supervising the work, it is the duty of the general contract- or to oversee conditions in the work of each subcontractor so far as they affect the safety of the employees of the subcontractor.\\\"\\nIn 65 C.J.S. Negligence \\u00a7 70 (1966) the rule is stated thus:\\nA person undertaking to furnish machinery or appliances for the use of others ordinarily assumes a duty to furnish proper and safe appliances, and, as is discussed infra \\u00a7 98, 99, he may be liable to one lawfully using such machinery or appliances who is injured because of his failure to exercise proper diligence in this respect, even where the person using the appliance, or his employer, does not receive the appliance directly from the person furnishing it, since the liability rests not on a contractual relation between the person injured and the person whose negligence caused the injury, but on the failure to perform a duty assumed by one, which results in injury to another. (Emphasis added.)\\nChapter 14 of Restatement of Torts (Second) sections 388-408 (1965) deals with \\\"liability of persons supplying chattels for the use of others.\\\" Section 392 contains the following language:\\nOne who supplies to another, directly or through a third person, a chattel to be used for the supplier's business purposes is subject to liability to those for whose use the chattel is supplied, or to those whom he should expect to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by persons for whose use the chattel is supplied\\n(a) if the supplier fails to exercise reasonable care to make the chattel safe for the use for which it is supplied, or\\n(b) if he fails to exercise reasonable care to discover its dangerous condition or character, and to inform those whom he should expect to use it.\\nSection 329, Comment f. of the same work contains the following statement:\\nf. In order that a chattel shall be supplied for another to use for a business purpose of the supplier, it is not essential that its use is necessary for the performance of a contract between a supplier and a third person. It is enough that the chattel is to be used in furtherance of any business purpose of the supplier.\\nIllustration:\\n4. A, contractor, for the purpose of obtaining information necessary to enable him to bid on the repair of a building, erects a scaffold so as to inspect the condition of the cornices and roofing. He permits a subcontractor, upon whose bid for the mason work the contractor's bid will depend, to use the scaffold. An employee of the subcontractor going upon the scaffold in pursuance of this arrangement for the purpose of inspecting the cornice is using the scaffold for the contractor's business purposes. (Emphasis added.)\\nIn Meny v. Carlson, 6 N.J. 82, 89-95, 77 A.2d 245, 248-252, 22 A.L.R.2d 1160, 1168-1172 (1950), the Court dealt with a factual situation where work was being done on a building by a general contractor and several subcontractors. The work of the subcontractors was, to some extent, overlapping. Scaffolding was necessarily used by carpenters, roofers and tinsmiths. It was unrealistic for each subcontractor to erect his own scaffolding. The carpentry subcontractor erected the scaffolding and by express or implied permission supplied it for the use of other subcontractors and their employees. An employee of the roofing subcontractor fell because a bracket on the scaffold became disengaged.\\nThe Court said:\\nAn inference is thus created that this defendant contemplated the use of the scaffold by the plaintiff. There was testimony that in construction work, of the nature here involved, cooperation among the various trades is customary. There was testimony that Hazekamp knew that the plaintiff and the other roofers, as well as the tinsmiths, were using the scaffold; and that another part of the scaffold on the same building was still being used by the carpenters at the time the plaintiff was working on the part of the scaffold which collapsed. There was sufficient evidence to justify an inference that Hazekamp had control of the facilities used by the carpenters under his jurisdiction and apparent authority to authorize the use of such facilities by the plaintiff.\\nA review of the evidence convinces us that whether or not the plaintiff was an invitee of the defendant, 'Busman and Rosen, Inc.; and if an invitee, whether this status arose through an implied or an express invitation; whether this defendant placed Hazekamp in a position of apparent authority to extend an express invitation to use the scaffold; whether an express invitation was actually extended pursuant thereto; and whether the plaintiff was justified in relying thereon, were all questions properly submitted to the jury.\\n\\n[Mjere use of the scaffold by the plaintiff would not as a matter of law divest this defendant of its control of the scaffold. Ownership of the scaffold, erection of the scaffold, and the properly inferrable invitation by this defendant to the plaintiff to use the scaffold created an inference from which the jury could justifiably determine that the scaffold was under the control of this defendant. The fact that the jury determined that both this defendant and the Carlson Company were in control of the scaffold creates no inconsistency.\\nThe Court, in discussing the liability of the general contractor, said:\\nThe plaintiff, as an employee of a subcontractor, was on the premises by the implied invitation of the defendant, Carlson Company, the general contract- or, which was bound to use reasonable care to see that the place in which the work was to be performed was reasonably safe.\\nA careful review of the record has convinced us that, while the evidence is not without conflict, it was sufficient to support the jury's verdict for the plaintiffs.\\nOden, under the terms of the subcontract, might have declined to allow Howell to subcontract with Capital to install the beams and, upon the same basis, might have insisted that Howell provide and work from its own scaffolding. Oden did neither of these things. It is clear that everything done in the premises was' with the knowledge and tacit consent of Oden, whose employees were engaged with Capital in installing the beams, Oden's men boring the holes used by Capital's employees to bolt the steel to the walls. Moreover, the jury was fully warranted in concluding that Oden built the scaffold with the knowledge and expectation that it would be used by Capital for doing this work. It would be unreasonable to suppose that Oden had kept his men overtime to bore the holes so that the work of attaching the beams would go forward at once the next day and not have contemplated the use for that purpose of scaffolding, already in place, which completely filled the entire hallway.\\nAppellant contends that 5 of the 8 instructions granted at appellees' request erroneously stated the law. These instructions embodied the theory of negligence upon which appellees predicated their case. The 16 instructions granted appellant amply covered, in detail, the principles relied upon by the defense. The trial court refused to grant only one instruction requested by appellant, that one having been a peremptory instruction directing the jury to find for defendant-appellant.\\nAfter careful consideration of each of the several criticisms directed at the instructions granted appellees, we have concluded that none is well taken. These instructions are not misleading, together contain a correct statement of principles relied upon by appellees, and there was evidence capable of supporting appellees' contentions with respect to the facts of the case. More than this, when read and considered with instructions granted appellant, wherein appellant's defenses were adequately pointed out to the jury, it is apparent that the issues in the case were fairly submitted to the jury for determination. We find no prejudicial error in the instructions.\\nAppellant assigns and argues, as having prejudiced the jury against it, certain statements made by appellees' counsel in the voir dire examination of prospective jurors.\\nIn Curry & Turner Construction Co., Inc. et al. v. Bryan, 184 Miss. 44, 185 So. 256 (1939) it was held that reasonable latitude should be allowed counsel in questioning prospective jurors. The present record reveals that, from time to time, objections were interposed by appellant to q\\u00faestions propounded by appellees' counsel on the voir dire examination. Many of these were sustained by the trial judge, who followed his rulings with appropriate admonitions to the jurors. We are unable to say from the record that anything occurred in the course of this examination capable of prejudicing appellant's right to a fair and impartial jury.\\nFinally, complaint is made of the size of the verdict, it being argued that it is so excessive as to evince passion or prejudice on the part of the jury which returned it.\\nAt the time of his death, McPhail was 41 years of age, with a life expectancy of 31.29 years. He left surviving him a widow and two young children who were dependent upon him, the youngest of the children having been born on December 8, 1966. He earned $200 per week. Following his injury he lived approximately a week and suffered some pain. There were \\\"special\\\" damages amounting to $2,039.75.\\nThe suit was brought under Mississippi Code 1942 Annotated section 1453 (1956). This statute contemplates the recovery in one action of all damages of every kind, both to the decedent and to the survivors.\\nSuch damages include loss of support, as well as of association, society and companionship by his widow and young children, together with the value of decedent's life. Under all of the circumstances in this case it is impossible for this Court to say that the verdict returned by the jury was so excessive as to indicate that it was the result of passion or prejudice.\\nOther assignments of error have been considered and are without merit.\\nThe record in this case reflects that, although contested with the utmost vigor at every stage- of the proceedings, it was well and fairly tried. We find no prejudicial error in the record and the verdict and judgment appealed from must be affirmed.\\nAffirmed.\\nGILLESPIE, P. J\\\" and PATTERSON, INZER and ROBERTSON, JJ., concur.\"}" \ No newline at end of file diff --git a/miss/9763331.json b/miss/9763331.json new file mode 100644 index 0000000000000000000000000000000000000000..d91f1de29999f93d25eb27b4c9a29633d1979d8e --- /dev/null +++ b/miss/9763331.json @@ -0,0 +1 @@ +"{\"id\": \"9763331\", \"name\": \"SHERIDAN, INC. v. C. K. MARSHALL & COMPANY, INC., et al.\", \"name_abbreviation\": \"Sheridan, Inc. v. C. K. Marshall & Co.\", \"decision_date\": \"1978-07-12\", \"docket_number\": \"No. 50433\", \"first_page\": \"1223\", \"last_page\": \"1226\", \"citations\": \"360 So. 2d 1223\", \"volume\": \"360\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T20:51:22.579560+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before ROBERTSON, P. J., and SUGG and BROOM, JJ.\", \"parties\": \"SHERIDAN, INC. v. C. K. MARSHALL & COMPANY, INC., et al.\", \"head_matter\": \"SHERIDAN, INC. v. C. K. MARSHALL & COMPANY, INC., et al.\\nNo. 50433.\\nSupreme Court of Mississippi.\\nJuly 12, 1978.\\nGray, Montague, Jackson & Pittman, R. A. Gray, III, Hattiesburg, for appellant.\\nAultman, Pope, Aultman & Tyner, Lawrence C. Gunn, Jr., Hattiesburg, for appel-lees.\\nBefore ROBERTSON, P. J., and SUGG and BROOM, JJ.\", \"word_count\": \"1392\", \"char_count\": \"8756\", \"text\": \"BROOM, Justice,\\nfor the Court:\\nMississippi's Long-Arm Statute is highlighted by this action of Sheridan, Inc. (appellant), a Mississippi corporation domiciled in Forrest County, Mississippi, and engaged in the financing business. In the circuit court of that county, Sheridan sued appel-lees, C. K. Marshall & Company (Marshall & Co. herein) and C. K. Marshall, Jr., individually (Marshall herein) for default of Marshall & Co. on payments due Sheridan under a \\\"finance lease.\\\" Both appellees (Florida residents) moved to dismiss the suit on the ground that the trial court lacked in personam jurisdiction over them.\\nSheridan conducts its financing business mainly in the State of Mississippi, but also operates in other southeastern states through its sales representatives, who periodically call upon equipment suppliers to solicit business. Marshall & Co. is engaged in a multimillion dollar construction business in Florida. Its owner, Marshall, also serves as president. In 1974, Marshall & Co. became interested in purchasing certain computer equipment from Eldorado Elec-trodata Corporation, and to obtain this equipment entered into a \\\"finance lease\\\" agreement with Sheridan. In order to obtain the financing from Sheridan, Marshall, in the State of Florida, executed a guaranty contract in favor of Sheridan under which he individually and personally guaranteed full payment and timely performance of Marshall & Co.'s obligations under the lease agreement (contract). The contract provided that it would not be effective until accepted by Sheridan. After Marshall's guaranty was delivered to Sheridan in Hatties-burg, Sheridan accepted the lease finance agreement and it became effective April 11, 1974.\\nSubsequent to the acceptance of the lease finance contract and the guaranty instrument, Sheridan purchased the computer equipment from Eldorado Electrodata Corporation and had it delivered to Marshall & Co. in the State of Florida. The contract provided for sixty monthly rental payments of $1,043.53, to be paid at Sheridan's office in Hattiesburg. Marshall & Co. defaulted after making only one payment, and on October 11, 1974, Sheridan reclaimed the computer equipment, the possession of which Marshall & Co. voluntarily surrendered. After taking it to Hattiesburg, Sheridan sold the equipment at public auction and then filed this suit for the deficiency under the lease. In the contract was a clause which read:\\n12. In the event suit is brought to enforce the terms of this lease, the parties hereto agree that any court of competent jurisdiction situated in the City of Hattiesburg, Forrest County, Mississippi, shall have venue of such action, and that the interpretation and legal effect of this lease shall be governed by the laws of the State of Mississippi .\\nSpecifically predicating in personam jurisdiction over Marshall and Marshall & Co. upon the \\\"single-contract\\\" clause of the Mississippi Long-Arm Statute, Sheridan's declaration (in its fourth paragraph) alleges:\\n4. The instant action is founded upon, and seeks enforcement of, contractual obligations of the Defendants in favor of the Plaintiff, to be performed by the Defendants within the State of Mississippi; and the Defendants may thus be subjected personally to the jurisdiction of this Court by service of process in the manner provided by Mississippi Code 1972 Annotated \\u00a7 13-3-57 (1972).\\nProcess for Marshall and Marshall & Co. in this suit was by substituted service upon the Secretary of State as prescribed by the Long-Arm Statute.\\nIn their motion challenging the in person-am jurisdiction of the Circuit Court of Forrest County, Marshall & Co. and Marshall, individually, relied mainly on the theory that they were not doing business in Mississippi. Nowhere in their motions did they allege that they had not entered into a contract with Sheridan to be performed partly in Mississippi. The trial court sustained the motion to dismiss.\\nThe Mississippi Long-Arm Statute, .Mississippi Code Annotated \\u00a7 13-3-57 (1972), is pertinent here and provides:\\nAny nonresident person . . . who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed . equivalent to the appointment by such nonresident of the secretary of state of the State of Mississippi . to be the true and lawful attorney or agent of such nonresident upon whom all lawful process may be served in any actions or proceedings accrued or accruing from such act or acts, or arising from or growing out of such contract or tort, or as an incident thereto, by any such nonresident . . . (Emphasis added).\\nAfter this case was dismissed below by the trial court and while its order of dismissal was pending here, we decided Shackelford v. Central Bank of Mississippi, 354 So.2d 253 (Miss.1978). Shackelford states:\\nHere, both instruments provided that they be performed (paid) in the State of Mississippi, and they were accepted by appellee in Mississippi. The trial court had jurisdiction under the Long-Arm Statute, and the first assignment of error is without merit.\\nThe record shows that execution of the contract by the parties occurred largely in Mississippi following telephone negotiations initiated in this state. It is true that Marshall & Co. and Marshall, individually, executed the instruments in Florida, but they were then delivered to Sheridan in Forrest County, Mississippi, where acceptance by Sheridan was necessary before they were to become effective. Sheridan's performance of its obligations under the contract was completed when it purchased the computer equipment and had it delivered to Marshall & Co., after which the only remaining performance to be done was for Marshall & Co. to make rental payments to Sheridan in Forrest County. Marshall & Co. partially performed its part of the contract in Mississippi when it forwarded the first rental payment due under the instrument to Sheridan in Forrest County, Mississippi. Also to be noted is the fact that in dealing with Sheridan, Marshall, individually, and Marshall & Co. knew that they were dealing with a Mississippi corporation and that any agreement executed by the parties had to be accepted by Sheridan in Forest County, wherein payment was to be made upon the instrument. Accordingly, we hold that these events give the State of Mississippi justifiable interest in the transaction and, under Shackelford, the motion to dismiss should not have been sustained.\\nAs to whether application of our Long-Arm Statute against Marshall and Marshall & Co. denies them due process under the Fourteenth Amendment of the Constitution of the United States as argued by them, the language used by the United States Supreme Court in McGee v. International Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed.2d 223, 226 (1957), is applicable. There the court stated:\\nIt is sufficient for purposes of due process that the suit was based on a contract which had substantial connection with that State. Cf. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091; Henry L. Doherty & Co. v. Goodman, 294 U.S. 623, 55 S.Ct. 553, 79 L.Ed. 1097; Pennoyer v. Neff, 95 U.S. 714, 735, 24 L.Ed. 565. The contract was delivered in California, the premiums were mailed from there and the insured was a resident of that State when he died. It cannot be denied that California has a manifest interest in providing effective means of redress for its residents when their insurers refuse to pay claims.\\nRoberts v. Worthen Bank & Trs. Co., 183 So.2d 811 (Miss.1966), is a case in which we relied upon McGee v. International Life Ins. Co., supra, and held that a Mississippi citizen who borrowed from an Arkansas bank \\\"had sufficient minimal contacts with the state of Arkansas\\\" so that an Arkansas court could render judgment against him. Therefore, we must reverse and remand for trial on the merits.\\nOn the question of whether or not the contract was to be performed in whole or in part by any party in the State of Mississippi, see the case of Miller v. Glendale Equip. & Supply, Inc., 344 So.2d 736 (Miss.1977).\\nREVERSED AND REMANDED.\\nPATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE, BOWLING and COFER, JJ., concur.\"}" \ No newline at end of file diff --git a/miss/9773423.json b/miss/9773423.json new file mode 100644 index 0000000000000000000000000000000000000000..eafc54a1480739ad2037ce0eaca26597f9ec9b33 --- /dev/null +++ b/miss/9773423.json @@ -0,0 +1 @@ +"{\"id\": \"9773423\", \"name\": \"Johnnie CHAPMAN v. STATE of Mississippi\", \"name_abbreviation\": \"Chapman v. State\", \"decision_date\": \"1973-10-29\", \"docket_number\": \"No. 47461\", \"first_page\": \"525\", \"last_page\": \"528\", \"citations\": \"284 So. 2d 525\", \"volume\": \"284\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T21:32:25.244852+00:00\", \"provenance\": \"CAP\", \"judges\": \"SMITH, ROBERTS ON, SUGG and BROOM, JJ., concur.\", \"parties\": \"Johnnie CHAPMAN v. STATE of Mississippi.\", \"head_matter\": \"Johnnie CHAPMAN v. STATE of Mississippi.\\nNo. 47461.\\nSupreme Court of Mississippi.\\nOct. 29, 1973.\\nHarry Kelley, Jackson, for appellant.\\nA. F. Summer, Atty. Gen., by Karen Gil-foy, Special Asst. Atty. Gen., Jackson, for appellee.\", \"word_count\": \"1228\", \"char_count\": \"7192\", \"text\": \"RODGERS, Presiding Justice.\\nThe appellant was indicted, tried and convicted of the crime of grand larceny in the Circuit Court of Warren County, Mississippi. He was sentenced to serve a term of five (5) years in the Mississippi State Penitentiary. He has appealed to this Court and now contends on appeal that the trial court erred in admitting into evidence certain money taken from Harriett Cannon, and that the trial court erroneously failed to direct a verdict of not guilty.\\nThis is what is said to have occurred. Four Negro women, dressed in uniforms similar to those worn by nurses, entered Jitney Jungle No. 2, a grocery supermarket in Warren County, Mississippi, about ten o'clock. At this time one of the cashiers left her checking stand and went to the back of the store. One of the uniformed Negro women asked a second cashier about some article in the store. When she went to help this customer, the cash register was left unguarded. When the cashier who had gone to the back of the store returned, she discovered that the money left in her cash register was missing. She immediately raised an alarm. In the meantime, the four uniformed Negro women passed out of the store and were seen to have entered an automobile which had been parked at the side of the store. A witness observed a Negro man sitting in the waiting automobile. The Sheriff of Warren County was notified. He promptly gave the description of the uniformed women and the automobile to officers over his radio broadcasting system. A patrolman cruising along the highway met an automobile occupied by persons similar to the description received by the officer over his radio. The officer turned around and followed the automobile. He discovered that the driver of the suspected automobile was exceeding the speed limit. The officer overtook the speeding automobile and arrested the driver for speeding. Another officer arrived to aid the first officer. The sheriff was notified that persons \\\"fitting the description\\\" given by the sheriff had been stopped on the highway near the town of Clinton, Mississippi. The sheriff called an officer and requested him to bring someone who could determine whether or not these people were the persons who came to the grocery store. A Mrs. Dement from the grocery store recognized them and identified them as the women who came to the store. They were then arrested and later taken to the sheriff's office in Warren County. The sheriff-was advised that some of the money was marked. The sheriff took all the personal property from the suspects, including their belts, at the time they were arrested; but, the money given to the sheriff was in small amounts. The sheriff interrogated the suspects as to the money, and finally, one of the women gave a large sum of money to the sheriff. The sheriff counted the money and found it to be nine hundred and fourteen dollars ($914.00). The serial numbers on one five, one ten, and one twenty dollar bill contained the numbers previously recorded by the cashier. The officers also discovered three balloons which had been purchased at the grocery store by one of the women. The women told the sheriff that they had made the money in New Orleans.\\nThe issue here is twofold: First, the appellant contends that the evidence adduced by the search of the suspects at the time they were arrested was illegal because there was no probable cause for their arrest. The trial court held that the officers were authorized to search the suspects, after their arrest, upon the ground that they were lawfully arrested. We are of the opinion that the court was correct and that the arrest was a lawful arrest for the following reasons. A crime had been committed. The persons who committed the crime were fleeing from the scene of the crime in an automobile. [White v. State, 70 Miss. 253, 11 So. 632 (1892)]. They were apprehended because of a traffic violation, and when it appeared that they were apparently the persons who were said to have committed the crime, it became the duty of the officer to detain them. Section 2470, Mississippi Code 1942 Annotated (Supp.1972). When they were identified, it became the duty of the sheriff to arrest them. [Bogard v. State, 233 So.2d 102 (Miss.1970); McCollum v. State, 197 So.2d 252 (Miss.1967); Fuqua v. State, 246 Miss. 191, 145 So.2d 152 (1962); Gilbert v. United States, 366 F.2d 923 (9th Cir. 1966)]. After they were arrested, it became the duty of the officer to search them for weapons, evidence of the crime for which they were arrested, and means of escape, or other means by which they could injure themselves or others. [Shay v. State, 229 Miss. 186, 90 So.2d 209 (1956)]. Moreover, other evidence obtained by this search was admissible in the trial. [Bradshaw v. State, 192 So.2d 387 (Miss.1966)].\\nSecond, it is contended that there was no evidence against the defendant since he was not in the store and nothing was found on his person to convict him of the crime; therefore, he cannot be convicted for mere association with persons who commit crime. The appellant cites Hux v. State, 234 So.2d 50 (Miss.1970) ; Matula v. State, 220 So.2d 833 (Miss.1969) and Mullen v. State, 202 Miss. 795, 32 So.2d 874 (1947).\\nThese cases, however, are not controlling here, because the evidence here does show facts which the jury could believe beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis, that the defendant was acting in conjunction with the other defendants to commit larceny.\\nIn the first place, it is obvious from the testimony that the women were acting in conjunction and under a pre-arranged plan as a team in the store to perpetrate the larceny. The defendant waited at the side of the store in an automobile, on the driver's side behind the steering wheel. The motor of the automobile was running, and as soon as the women were in the automobile, it left at a rapid rate of speed. The defendant was identified as being the man in the waiting automobile. In the n\\u00e9xt place, when the patrolman observed the automobile driven by the defendant, the patrolman turned around to pursue the automobile and he observed the defendant stopping the automobile and getting on the back seat so that one of the women then drove the automobile until they were stopped by the highway patrolman. The women told the sheriff that they were walking along the road and the defendant picked them up \\u2014 that is to say, it was not their automobile, but the defendant's automobile.\\nThere was no evidence offered on behalf of the defendant. We are of the opinion that there is ample testimony in the record to show beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis that the defendant was acting in conjunction with the other defendants to perpetrate the crime of larceny. The judgment of the trial court and the sentence of the defendant are therefore affirmed.\\nAffirmed.\\nSMITH, ROBERTS ON, SUGG and BROOM, JJ., concur.\"}" \ No newline at end of file diff --git a/miss/9783298.json b/miss/9783298.json new file mode 100644 index 0000000000000000000000000000000000000000..9694cdcf2294b4d1c7c08714892fb57ae9ecc466 --- /dev/null +++ b/miss/9783298.json @@ -0,0 +1 @@ +"{\"id\": \"9783298\", \"name\": \"Arthur BRANDON v. STATE of Mississippi\", \"name_abbreviation\": \"Brandon v. State\", \"decision_date\": \"1972-06-12\", \"docket_number\": \"No. 46852\", \"first_page\": \"560\", \"last_page\": \"563\", \"citations\": \"263 So. 2d 560\", \"volume\": \"263\", \"reporter\": \"Southern Reporter, Second Series\", \"court\": \"Mississippi Supreme Court\", \"jurisdiction\": \"Mississippi\", \"last_updated\": \"2021-08-10T23:27:31.780404+00:00\", \"provenance\": \"CAP\", \"judges\": \"BRADY, PATTERSON, SMITH and SUGG, JJ., concur.\", \"parties\": \"Arthur BRANDON v. STATE of Mississippi.\", \"head_matter\": \"Arthur BRANDON v. STATE of Mississippi.\\nNo. 46852.\\nSupreme Court of Mississippi.\\nJune 12, 1972.\\nHouston & Chamberlin, Aberdeen, for appellant.\\nA. F. Summer, Atty. Gen., by Edwin A. Snyder, Special Asst. Atty. Gen., Jackson, for appellee.\", \"word_count\": \"1295\", \"char_count\": \"7410\", \"text\": \"RODGERS, Presiding Justice.\\nThe defendant was indicted in this case for assault and battery with intent to kill and murder Joe A. Parker and was convicted in the Circuit Court, Chickasaw County, Mississippi, Second Judicial District, April Term, 1971. He was sentenced to serve eight (8) years in the Mississippi State Penitentiary. From this sentence and judgment he has appealed to this Court.\\nThe indictment, leaving off the formal parts, is in the following language:\\n\\\". . . Upon their oaths present: That ARTHUR BRANDON late of the County aforesaid, on the 26th day of July, 1970, in the County aforesaid, in and upon one Joe A. Parker then and there did feloniously commit an assault and battery with a certain deadly weapon, to-wit: a pistol, and with the said pistol did then and there wilfully and fe-loniously shoot and wound the said Joe A. Parker with intent him the said Joe A. Parker wilfully, feloniously and of malice aforethought to kill and murder, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.\\\"\\nThis indictment was drawn under Mississippi Code 1942 Annotated, Section 2011 (1956).\\nThe testimony showed that on or about eleven o'clock in the evening on July 25, 1970, appellant and Willie James (Teddy) Keys had an argument in Lonnie Seals' house, which was a so-called \\\"Juke joint.\\\" Appellant fired the pistol which he was carrying and the owner of the house pushed appellant out of the door of the house. Upon being forced out of the house, appellant told Keys' father, \\\". . you don't carry that damn Teddy tonight, I am going to kill that black son-of-a-bitch.\\\" About one o'clock A.M. as Joe Parker was coming out of the house, he was shot by appellant. There had been no trouble between Parker and Brandon on that night nor at any other time. However, since Parker and Keys were about the same size, wore their hair in a similar fashion, and both were wearing blue shirts that evening, appellant apparently shot Parker thinking that he was Keys.\\nAppellant admits firing the pistol inside the house and also firing two shots \\\"toward the house\\\" while standing outside. He also stated that after he fired the shots, he was told that somebody got shot. His reason for firing was that \\\". somebody looked like they was shooting at me. . . .\\\"\\nNo evidence was introduced to show that the defendant had any intent to shoot Joe A. Parker, but, on the contrary, the evidence showed that he had none. In fact, the state's entire theory in the trial of the case was that the defendant mistook Joe A. Parker for Willie James (Teddy) Keys and shot Joe A. Parker, thinking that he was shooting Willie James (Teddy) Keys.\\nAt the conclusion of the state's case the defendant moved the court for a directed verdict of not guilty on the ground that the proof had wholly failed to show an intent on the part of the defendant to kill or murder Joe A. Parker; that the testimony was entirely at variance with the indictment which charged the crime of assault and battery with intent to kill and murder Joe A. Parker; and that in truth the testimony of the state had negated any intent to kill or murder Joe A. Parker. This motion was overruled by the court.\\nAt the conclusion of all the testimony in the case, the defendant again moved the court to peremptorily instruct the jury to return a verdict of not guilty on the ground that the state had wholly failed to prove the necessary intent on the part of the defendant to kill and murder Joe A. Parker as charged in the indictment and that all of the evidence was in conflict with the indictment. This motion was also overruled by the court.\\nThe questions to be determined on appeal are:\\n(1) Was there a fatal variance between the indictment and the evidence offered to prove the charge laid in the indictment ?\\n(2) Did the trial court commit reversible error by granting an instruction which stated that the deliberate use of a deadly weapon was evidence of malice?\\nThe appellant has cited as authority for his motion for directed verdict on the first issue, the case of Barnette v. State, 252 Miss. 652, 173 So.2d 904 (1965). In Barnette the defendant intended to cut one Joe Gibson, but apparently thought Charles Windom was Joe Gibson. Charles Windom dodged and the blow passed over him, but took effect upon Ira G. Hoye who was seriously wounded. The grand jury indicted the defendant for assault and battery with intent to kill and murder Hoye, the person actually cut. This Court held that the intent to kill and murder could not be transferred to another person who was accidentally cut, since there was no intent to injure the person actually injured.\\nThe state cited the case of Garner v. State, 227 Miss. 840, 87 So.2d 80 (1956). In that case the defendant Willie Mae Garner, a woman, went up behind one Dock Jefferson and cut him on the jaw. They had been good friends and she said she thought he was Richard Johnson. This Court upheld the testimony on the indictment in which she was charged with assault and battery with intent to kill the man she cut, Dock Jefferson. We held that there was no variance between the testimony showing that she thought she was cutting Richard Johnson and the charge in the indictment that she intended to kill the man she cut, Dock Jefferson. We based our opinion in Garner upon the fact that defendant cut the person she intended to cut, although she was mistaken in the identity of the person she actually cut.\\nThere is no conflict between the holding of this Court in the Barnette and Garner cases.\\nThe rule is this: If \\\"A\\\" shoots or cuts \\\"B\\\" with the unlawful intent to kill \\\"B\\\", he is guilty of assault and battery with intent to kill and murder \\\"B\\\", although he thought that he was shooting \\\"C\\\", a third party. On the other hand, if \\\"A\\\" shoots at or cuts at \\\"B\\\" with the unlawful intent to kill \\\"B\\\" (although he thought \\\"B\\\" to be another) but misses \\\"B\\\" and actually injures \\\"C\\\", the unlawful intent is not transferred by the law to \\\"C\\\". In that case, the indictment must charge assault and battery with intent to kill \\\"B\\\" but did, in fact, wound or injure \\\"C\\\".\\nThere was no variance between the charge in the indictment and the testimony offered by the prosecution in the instant case, therefore, the objection to the testimony is not well taken.\\nThe granting of an instruction that the deliberate use of a deadly weapon was evidence of malice was an error. Where all the facts are in evidence, this instruction should not be granted. Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963).\\nIn the instant case, however, the defendant offers no excuse or justification for shooting the prosecuting witness, except that he thought somebody was shooting at him. The testimony offered by the defendant indicates his guilt and the instructions for the state other than the erroneous instruction as to malice are proper. We hold, therefore, that the erroneous in struction is not, in this case, sufficient to require a reversal of the judgment and sentence of the appellant. The judgment of the trial court is, therefore, affirmed.\\nAffirmed.\\nBRADY, PATTERSON, SMITH and SUGG, JJ., concur.\"}" \ No newline at end of file