Volume 125 — Mississippi Reports

Hon. Thos. B. Carroll, Judge. Action by G. D. Hook & Co. against William Miller. Judgment for defendant, and plaintiff appeals. Appellant is entitled by law of the land to a reasonable commission, the amount depending upon the amount allowed by customs locally prevailing among this particular class of brokers or dealers or agencies. 19 Cyc., p. 284 (Note) ; 9 Corpus Juris, p. 590 (Note); 27 L. R. A. (N. S.), p. 1089; 48 L. R. A! (N. S.) p. 91; 5 So. Rep. 157 (Ala.).

Hon. W. H. Hughes, Judge. ^ Action by Mrs. Floyd Dora Garner against tbe Sovereign Camp, Woodmen of tbe World. From a judgment for plaintiff, defendant appeals.

Hon. G. E. Williams., Chancellor. Suit by Mollie Roach Ridgeway and others against F. J. Jones, executor of the last will and testament of Samuel Jones, deceased, to contest the executor’s first annual account.

- Hon. A. J. McIntyre, Chancellor. Suit by Stokes V. Robertson, State Revenue Agent, to the use of Alcorn County Chickasaw School Fund, against the city of Corinth and another. Held: same tenure, same conditions, same terms; that is to say by the same title and for the same use and purposes, no more no less.

Hon. E. L. Biuen, Judge. Action by George Burdett against Walker D. Hines, Director General of Railroads, and another for libel. Judgment for defendants on a directed verdict, and plaintiff appeals. Appellant is now placed in such position that he can never again work for a railroad company anywhere in the United States, by reason of the false and libelous reports made by the officers of the railroad company to another railroad.

Hon. R. W. Heidelberg, Judge. Action by N. C. Gandy against tbe Brownlee Lumber Company. It does not appear that Gandy ever bad any dealings with tbe Brownlee Lumber Company, while it was a corporation. It does not appear that Gandy ever knew that there was such a corporation as tbe Brownlee Lumber Company.

Hon. R. W. Cutres., Chancellor. Action by R. E. Bost against P.. Beekman and others. Judgment for plaintiff, and defendants appeal. On motion to discharge supersedeas or require supersedeas bond in double the sum of the judgment. Supersedeas discharged unless bond in double amount of judgment given. No brief of counsel found in the record.

Hon. D. M. Miller, Judge. Tom Kyzar was convicted of manufacturing intoxicating liquors, and be appeals. A regular term of the circuit court of Lincoln county, was begun and held on the 6th day of September, A. D., 1920, and a grand jury of twenty good and lawful men were impaneled, and on a day prior to the 15th day of September, A. D. .1920, said grand jury made its final report to the court and was finally discharged.

Hon. G-. C. Tann, Chancellor. Suit by Rosenbaum & Little and others against A. J. Brower and others, with cross-bill by defendants. Judgment for plaintiffs, and defendants appeal.

Hon. E. N. Thomas, Chancellor. Suit by Sunflower County against the Yazoo & Mississippi Yalley Railroad Company. Decree for complainant, and defendant appeals. “Our position in this matter is that these lands are held in trust by the state for school purposes, and school purposes only, and that the legislature could not grant to the Yazoo & Mississippi Yalley Railroad Company even if it had intended to do so by said charter.” Brief for appel-lee, p. 4.

Hon. C. P. Long, Judge. Action by N. B. Mock against Walker D. Hines, Director General (Illinois Central Bailroad Company). From a judgment for defendant, plaintiff appeals. In March, 1917, the appellant sought to pass from one side of the public street to the other in the village of Holcut, Mississippi, which had an ordinance against blocking the highway by railroad cars for longer than five minutes at any one time.

Hon.-R. W. Heidelberg, Judge. Action by Willie McLaughlin, by his next friend, against R. W. Fagan-Peel Company and others. From a judgment for plaintiff for less than claimed, he appeals. The damages were grossly inadequate.

Hon. W. M. Denny, Jr., Chancellor. Suit by E. B. Barnwell against W. M. Cain and others. Decree for complainant, and defendants appeal. Counsel for appellee in their brief argue that the decision of the court on the former appeal of this case. Gain et al. Y. Barnwell, 120 Miss. 209, 82 So. 65, will decide the case on this appeal. Apparently, they do not realize the difference in the records on the two appeals.

Hon. D. E. Beams, Judge. Lilly Belle Barber was convicted of having intoxicating liquors unlawfully in her possession, and she appeals. No brief of record found.

<p>Appeal axd Eeboe. Appeal will be dismissed where the real purpose is to obtain reversal but affirmance.</p> <p>An appeal will be dismissed where the real purpose is not to obtain a reversal of the decree but to have it affirmed; there being no actual controversy of either law or of fact to be decided.</p>

Hon. W. H. Hughes, Judge. Neal Funches was convicted of murder, and he appeals. In view of the right of a defendant, to interrogate jurors, after a full panel has been tendered him by the state, for the purpose of exercising his right of peremptory challenge, has been questioned by the attorney-general and refused in this case by the lower court, we desire again to call the court’s attention to the law as heretofore announced by this court.

Hon. W. H. Potter, Judge. Action by Mrs. Julia A. Whitehead against the Fraternal Aid Union. Judgment for plaintiff, and defendant appeals. The testimony for both plaintiff and defendant neither raised nor left an issue for the jury and the court should have peremptorily found for the defendant or have so directed the jury. See: Continental Casualty Co. v. Harden-herg, 83 So. 278.

Ou suggestion of error. By way of reply to the brief for appellee, we wish to again emphasize the fact that appellee is in error in assuming that the contract in this case was for it to obtain a purchaser ready, willing and able to purchase on the ierms proposed.

Hon. D. M. Watkins,, Chancellor. Bill by Cánnie H. Ramsay against N. K. Ramsay for divorce. Decree for plaintiff. From an order committing defendant to jail for failure to pay alimony, he appeals.

<p>Appeal from chancery court of Coahoma county.</p> <p>Hon. G. E. Williams, Chancellor.</p> <p>Action by E. H. Wildberger and others against E. C. Shireman and others. From a judgment for plaintiffs, defendants appeal.</p>

<p>On respondents’ motion for an attorney’s fee.</p>

<p>On motion to modify tbe correct judgment.</p>

Hon. D. M. Russell, Chancellor. Separate suits by J. F. Humphrey and. others against Mrs. Nancy B. Humphrey Seale. Held: that, on the ground of public policy, whatever disqualifies the wife from acquiring the title from her cotenants also disqualifies her husband. We call the court’s attention to the following authority in this state and in other states on this point. Robinson v. Lewis, 68 Miss. 69, and also numerous authorities in note to 116 Am.

Hon. Gr. E. Williams, Chancellor. Suit by J. J. McPherson and others against Tom Richards and others. Decree for defendants, and plaintiffs appeal. The original lease was and is void, from the beginning, for two reasons. First, the board of supervisors had no right to make a lease for more than one year, except on -the recommendation of the heads of families of the township.

Hon. S. F. Davis, Judge. Proceeding between McBee & Gossett'and the Cahaba Construction Company and others. Judgment for the latter, and the former appeal. On motion to strike stenographer’s transcript and to dismiss appeal.

Hon. R. W. Cutrer, Chancellor. Action by Edward L. Slattery against the Southwestern Lumber & Box Company, with the P. L. Renoudet Lumber… Held: “.That a suit respecting personal property is not brought in the county where it is situated, as, by Code of 1906, section 561, it shows it is ground for a demurrer to the bill.” The circuit court is without jurisdiction to render a judgment by default in attachment suit against- a defendant who is served with process in another…

Hon. R. L. Corean, Judge. Action by Mrs. Clara J. Mullins against the-Yazoo & Mississippi Valley Railroad Company. Held: that, where tbe casual negligence is attributable partly to tbe carrier and partly to the injured employee, be shall not recover full damages, but only a diminished sum bearing the same relation to' tbe full damages that tbe negligence attributable to the carrier bears to the negligence attributable to both; tbe purpose being to…

Hon. W. M. Denny, Jr., Chancellor. Suit by Wiley W. Evans; against I. H. Weaver, to set aside a sheriff’s deed. On complainant’s death, the suit was revived in the name of Arthur Turner, administrator. Decree for complainant, and respondent appeals.

Hon. W. M. Denny, Jk., Chancellor. Suit by Henry Bishop against Henry Nelson. Decree for plaintiff, and defendant appeals. This bill (page 1) alleges that the notes were dated March 24, 1917, that they bore six per cent interest per annum, that they provided for an attorney’s fee if placed in the hands of an attorney. The deed of trust, page 6 of record, shows the same thing.

Hon. W. H. Potter, Judge. . Action by Hugh Tucker against Yon Noy Interstate Company. Judgment for plaintiff, and defendant appeals. Held: it appearing that the bag and its contents amounted to more than the sum specified, that the defendant was not liable for the loss, as the plaintiff, bailor was bound by the terms printed on the check, she being presumed to know the provisions thereof. See to the same effect Henderson v. 'Northeastern R. Go. (1861), 9 Week. Bep.

Hon. J. D. Fatherree, Judge. Bastardy proceedings by Marvella Hendrix against Archie Wilson. Judgment for plaintiff, and defendant appeals. The second and third instructions tell .the jury that if they believe from a preponderance of the evidence that the appellant bad intercourse with appellee, at or near the proper time which in course of nature would or might make him the father of her child, then it is the duty of the jury to return a verdict for the prosecutrix.

Hon. Y. J. Stricker, Chancellor. Suit by Nannie W. McNeill against Henry W. McNeill, with cross-bill by defendant. Belief was denied to both parties, and complainant appeals. The court erred in ruling that in cruel and inhuman treatment there must be shown malice. This is apparent from the ruling of the supreme court in other cases. Malice is an element of criminal law but is not necessary to constitute cruel and inhuman treatment.

Hon. E. N. Thomas, Chancellor. Suit by Joseph Lowenbnrg against Joseph Klein and others for an injunction. From a decree dissolving a preliminary injunction and dismissing the bill, plaintiff appeals. While this action is in form asking for affirmative relief, it is in nature strictly a defensive one.

Hon. A. J. McIntyre, Chancellor. Suit by W. R. Scott and others against the Freedman’s Aid & Southern Education Society. Decree for complainants, and defendant appeals.

Hon. R. S. Hall, Judge. Action by Andrew Holliman against the Tallahala Lumber Company. Judgment for plaintiff, and defendant appeals. Held: and we think with great reason, that the relation of carrier and passenger exists, and we cite the following authorities: Tanner v. Hitch et al., 58 S. E. 287; Southern Railroad Co. v. West, 62 So. 141; Simmons v. Oregor Railroad Company, 69 Pac. 440.

If ox. D. M. Graham, Judge. Elmer Dedeaux was convicted of larceny of sbeep, and be appeals.

<p>Appeal from chancery court of Humphreys county.</p> <p>Hon. E. N. Thomas, Chancellor.</p> <p>Suit by Stokes V. Robertson, State Revenue Agent, against the Belzoni Land Company. Decree for plaintiff, and defendant appeals.</p>

Hon. W. H. Hughes, Judge. Ascus Williams was convicted of unlawfully selling intoxicating liquors, and he appeals. We concede that this defendant was guilty of selling-whiskey on this occasion as shown by the record. We concede that on two former occasions he pleaded guilty to 'selling whiskey for two separate offenses and was fined fifty dollars and five days in jail in each.

Hon. A. J. McIntyre, Chancellor. Suit by the state, on the relation of J. E. Berry, for the use of Tishomingo' County against W. N. Hundley and others. The statute making the county treasurer also treasurer of the money belonging to good' road district, expressly says that he shall be liable on his bond, but does not require or say anything about giving an additional bond.

Hon. Thos. L. Lamb, Judge. Action by Mrs. Margaret B. Vaughan against Mutual Life Insurance Company of New York. Judgment for plaintiff, and defendant appeals. It is lawful for an insurance company to stipulate in any contract executed in its behalf that the provisions therefor cannot be waived by notice or representation unless given to or made by one of its principal officers.

<p>On suggestion of error.</p>

Hon. S. F. Davis, Judge. Action by J. B. O’Keefe and others against G. B. McLe-more. Judgment for defendant, and plaintiffs appeal. The conveyance of the leased premises to O. R. Smith carried with it the rent for which the attachment, in this case was sued out; and the court erred in overruling the plaintiff’s motion to exclude the evidence, and in refusing to direct a verdict for him, as requested in. his Instruction No. 1.

Hon. S. F. Daws, Judge. Action by Boyd Saffold against the Buckeye Cotton Oil Company. Judgment for plaintiff, and defendant appeals. We respectfully submit that the plaintiffs testimony even if considered alone, and stretched to its utmost, wholly fails to establish any liability on the part of the defendant for his regretable injury.

Hon. T. L. Lamb, Judge. Application for writ of Mandamus by J. D. McGraw against the board of supervisors of Winston county to compel the issuance of a warrant for a payment of money. From a judgment of dismissal petitioner appeals., The issuance of a warrant or order upon a claim properly audited and allowed by the board of supervisors is ■usually regarded as a ministeral duty, which may be enforced by mandamus. 26 Cyc., 315; Kelly v. Wimberly, 61 Miss. 548.

Hon. R. S. Hall, Judge. G-. L. Crosby was convicted of violating the statute protecting female children against insult. From refusal of application for bail after conviction pending appeal, defendant appeals.

• Hon. S. F. Davis, Judge. J. B. Meriwether was convicted before a justice of the peace of unlawfully having in his possession intoxicating liquor. On appeal to the circuit court, a demurrer was overruled, and defendant was again convicted, and'he appeals.

Hon. Y. J. Stkickek, Chancellor. Suit by the Alabama & Vicksburg Railway Company against A. Joseph and others. Decree for defendants, and complainant appeals. The chancellor necessarily found and adjudged that the statute of limitations sought to be pleaded by the defendants who erected the shed were unavailing as a defense, as of course they were.

Hon. E. N. Thomas, Chancellor. Bill by Mrs. Ollie Shields against M. Tonkel to restrain sale under a deed of trust. Decree for plaintiff, and defendant appeals. The only point involved here is as to the correct method of application of these payments. We readily concede that the rule in Mississippi, in the absence of any application of payments on an indebtedness by either debtor or creditor, is that the law appropriates the same most beneficially to the debtor.

Hon. R. S. Hall, Judge. Action by Mrs. Maud E. Green, as administratrix, against Walker D. Hines, agent. Held: “The rule at common laAV is that a master is not responsible to a servant for an injury sustained by him because of the negligence of another servant while both are engaged in the same service, with this exception, that a master avIio negligently or knowingly employs or retains in his service an incompetent servant is liable for…

<p>Appeal from chancery court of Coahoma county.</p> <p>Hon. Gr. E. Williams, Chancellor.</p> <p>Motion to vacate judgment.</p>

Hon. E. N. Thomas, Chancellor. Action by Mrs. Sallie Miller against the Sovereign Camp, Woodmen of the World. Held: where members have agreed in their application to be governed by all by-laws and rules now in force or hereafter adopted, they will be bound by all subsequently enacted by-laws the same as by those in force at the time the certificate was issued.” Farmers Mutual Insurance Company v. Kinney (May, 1902), 64 Neb. 8Ó8; Hardy’s Fraternal…

Hon. W. H. Potter, Judge. Action by Dr. C. A. Lee, administrator of tbe estate of Percy L. .Johnson, deceased, against National Surety Company. Judgment for plaintiff, and defendant appeals, with cross-appeal by plaintiff.

Hon. W. A. Alcorn, Jr., Judge. Action by tbe Lynchburg Shoe Company against F. Rubenstein and others. Judgment for plaintiff, execution was issued, and on trial of a claimant’s issue a peremptory instruction was given for plaintiff and in judgment against J. Rubenstein, 'defendant, and defendants appeal.

ArPEAL from circuit court of Sunflower county. Hon. S. F. Davis, Judge. Action by Sidney O’Keefe against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff, and defendant appeals. The conductor was without authority to bind defendant by his promise to put the boy off at Blaine. Railroad v. Kendrick, 40 Miss. 385; Railroad v. Statham, 42 Miss. 607; Sevier v. Railroad, 61 Miss. 8; Cage v. Railroad. 75 Miss. 17; Weightman v. Railway, 70 Miss. 563. 2.

Hon. C. P. Long, Judge. Action by Karlton Bonds against the Mobile & Ohio Railroad Company. Judgment for defendant on a peremptory instruction, and plaintiff appeals. Held: “But there must be causal connection between the act causing the injury and the injury. Here, conceding the increasing of the speed of be wilful, there is no causal connection between that act and the injury.

<p>Appeal from circuit court of Lee county.</p> <p>Hon. C. P. Long, Judge.</p> <p>• Charley Baldwin was convicted of receiving stolen prop-érty, and he appeals.</p>

Hon. A. J. McIntyre, Chancellor. Suit by J. L. Shell and others against Monroe County. Bill dismissed, and complainants appeal. The legislature which gave this road district the power of raising money by taxation, can appropriate money raised by the district for one purpose, to another; the same is true of a county.

Hon. W. H. Potter, Judge. Action by John W. Armstrong against tbe Employer’s Liability Assurance Corporation, Limited. Judgment for defendant, and plaintiff appeals. Appellant files bis suit and says that there has been imposed upon him by law the expenditure of three thousand five hundred eighteen dollars and seventy cents by reason of his having struck with his automobile the person of one James Kelly. How is this evidenced?

Hon. D. M. Graham, Judge. Action by A. E. Stevens and four others against John Barton Payne, Director General of Railroads of the United States. Prom the judgment in favor of three of the plaintiffs, defendant appeals. The legal questions raised by this record are: 1.

Hon. A. J. McLaubin, Judge. George Hawie was convicted of murder,' and he appeals. As a general rule, but with a few exceptions, tbe fact that the appellant was adjudicated insane as of date January, 1919, is a conclusive presumption of his insanity since that date; but it is a rule without any exception that such a finding is a rebuttable presumption.

I-Ion. R. L. 'Cokban,-Judge. Proceedings by Adams County to assess the National Box Company for personal property. Objections to the assessment were overruled by the board of supervisors, and on appeal the company’s liability was fixed. From the judgment the county appeals direct, and the box company cross-appeals.

Hon. T. P. Guyton, Chancellor. Suit by the Smith-Powell Realty Company against L. M. Jenny. Held: “It would seem from these cases that the complainant’s right of recovery would not depend upon the sufficiency of the memorandum contract, but if he made a sale or procured a buyer ready to take at the named price, that he could recover, though his contract with the principal was merely verbal.” In the case Smith v. Cauthen, 98 Miss.…

Hon. J. G. McGowen, Chancellor. Bill by Harry Parker against the board of supervisors of Grenada county to enjoin a bond issue. A demurrer to the bill was sustained, and plaintiff appeals. The claim is made that this suit cannot be maintained in any event, even though the bonds were not authorized by law, on account of the validating proceedings under chapter 28, Laws of 1917.

Hon. D. M. Graham, Judge. Action by .the city of Biloxi against the Gulfport & Mississippi Coast Traction Company. Judgment for plaintiff, and defendant appeals. Held: the use of the road and not the motive power controls. See Trust Go. v. Hamilton, 32 C. C. A. (9 Cir.) 46. Eailroad and railway under all authorities 'are synonymous terms. Some of the great trunk line railroads designate themselves railways, for instance, the Southern Eail-way.

Action by R. S. Norman against the Yazoo & Mississippi Valley Railroad Company. Judgment for plaintiff, and defendant appeals. The rights and liabilities of shippers and carriers respecting property shipped by freight from one state to another are to be governed exclusively by Federal Laws. M. K. & T. R..R. Co. v. FT arriman, 227 Ú. S. 657, 57 Law Ed. 690'; A. T. & 8. F. R. R. Co. v. RoUnson, 238 U. S. 173, 58 Law Ed. 901; A. T. é 8. F. R. R. Co. v. Moore, 233 IT.

Hon. D. M. Graham, Chancellor. Action by A. Goletti, Incorporated, against the Andrew Gray Company. From a judgment of dismissal; plaintiff appeals. Held: does not affect this case, but the only two propositions decided in the McKee case were that the Sunday law was not involved because the trade was in Louisiana and that the court ruled erroneously on a question of warranty.

Hon. R.. L. Corean, Judge. Action by E. C. Angeletty against A. H. Bernstein. Judgment for plaintiff, and defendant appeals. The court erred in not permitting this Exhibit A which consisted of the Bost plans and specifications according to which the building was to be built to he introduced in evidence and go before the Jury.

<p>Motion to transfer to court in banc.</p> <p>On Motion.</p>

Hon. S. F. Davis, Judge. Action by Mrs. J. B. Hartshorn against the Tallahatchie Compress & Storage Company. Judgment for plaintiff, and defendant appeals. The warehouse receipt in this case is the written contract and the sole evidence of the contract, and affirmatively exempts the defendant from liability for fire. The adjudications are not altogether clear as to the legal effect of a warehouseman’s receipt.

Hon. V. J. Stbickee, Chancellor. Suit by E. B. Tillman and others against I. N. Ellis, Sr., and others, for an injunction. From a decree overruling a motion to dissolve a preliminary injunction, respondents appeal. We contend: (1) This feature of section 7162 is directory and not mandatory, and therefore a failure to observe the same would not invalidate the contract. (2) If mandatory there has been a substantial compliance therewith, which is sufficient.

H'on. G. E. Williams, Chancellor. Suit by Mrs. Vallie B. Quinn against D. C. Alexander and others to enjoin the sale of property under execution. A temporary injunction was dissolved, and complainant appeals.

Hon. A. J. McIntyre., Chancellor. Suit by the Mobile & Ohio Eailroad Company against C. E. Strain. From a decree dismissing the bill, plaintiff appeals. Held: that, this question was settled adversely to the railroad company by Wilmot v. I7. cG M. V. R. R. Go., 75 Miss. 374 and Paxton v. Y. The language used by our court in these cases must be confined to their facts.

<p>On suggestion of error.</p>

Hon. J. G. McGowan, Acting Chancellor. Suit by Washington County against the Yazoo & Mississippi Valley Eailroad Company and others. Decree of dismissal, and complainant appeals. No brief found in the record for either side.

IÍ01N. E. L. Corban, Judge. Action by Octavia Dockery against Duncan G. Minor. Judgment for plaintiff., and defendant appeals. Held: “That the manager of sheep, who was not the owner thereof, is responsible to a third party for actions of the herders employed by him, although the acts were done without his knowledge or authority and contrary to his direction.” Under our statute, any person having possession of, or control of, cattle, is the owner pro haec vice…

Hon. T. B. Carroll, Judge. Action by T. J. King against tlie Illinois Central Railroad Company. Judgment for plaintiff, and defendant appeals. The box in question was delivered to, accepted by, and receipted for by appellant as crockery. - Instead of containing crockery only, the box, according to plaintiff’s testimony and the jury’s verdict, actually contained articles of jewelry.

Hon. A. J. McIntyre, Chancellor. Suit by W. T. ■ Adams against Hubert F. Young and others. Decree for defendants, and plaintiff appeals.

Hon. E. D. Dinkins, Judge; B. T. Lawson was convicted of embezzlement, and be appeals. Embezzlement involves the following elements to make out the statutory crime: 1st. It must be shown that the thing converted or appropriated is of such a character as to be within the protection of the statute. 2nd. That it belonged to the master or principal. 3rd. That it was in possession of the accused at the time of the conversion, so that no trespass was committed in taking it. 4th.

Hon. W. A. Alcorn, Jr., Judge. Action by Willis Fronkling against Mary C. Berry. .Judgment for defendant, and plaintiff appeals. The right of an alien enemy to defend a suit has never, so far as we have been able to find, been questioned by any court of last resort. We refer the court to the authorities collated under paragraph B, styled “Right to Defend,” Ann. Cas. 1917C, page 211.

<p>Appeal from chancery court of Sharkey county.</p> <p>Hon. E. N. Thomas, Chancellor.</p> <p>Suit by T. W. Dye, and others against Moody & Williams. From a decree sustaining the bill, defendants appeal.</p> <p>To vacate the judgment against him as garnishee Dye attacks the judgment against Cook, in favor of Pitts, upon which the writ of garnishment was issued, as being void. This constitutes a collateral attack on that judgment, and we submit, in respect to its validity, or binding-effect it is not open to impeachment in any collateral action or proceeding.</p> <p>The purpose of this proceeding is to vacate the judgment, rendered in favor of Pitts against Dye, as garnishee, and not to vacate the judgment, rendered in favor of Pitts against Cook, as the defendant, though to get the relief sought it is necessary to vacate the judgment in favor of Pitts against Cook, so we insist that the principle stated applies to the facts of this case, and that the attack by Dye on the judgment against Cook is a collateral attack. That Dye has no right, in this proceeding, to question the validity of that judgment.</p> <p>The principle thus stated has been applied in the following cases: Bostic v. Love, 16- Cal. 69; Trogclon v. Cleveland Stone Co., 53, Ill App. 206; Sturgis v. Rogers, 26 Ind. 1; Elmore v. Richards, 25 Ill. 289; Catch/im v. Edwards, 39 N. Y. Suppl. 1012; Wilkinson v. Holton, 46 S. E. 620 ; Mann v. Jennings, 6 So. 771; Drydon v. Parotte, 85 N. W. 287 ¡Vicksburg Croc. Co. v. Brennan, 20 So. 845 Martin v. Jliller, 103 Miss. 754; 16 Am. & Eng. Enc. of Law (2 Ed.) page 374; Ferguson v. McKinney, 60 Miss. 763-771; Field, Morris c& Fenner v. McKinney, 60 Miss. 763; Attach (5 Ed.) sec. 692, et seq.</p> <p>It is contended that the subsequent reversal of the judgment agaiiist Cook ipso facto vacated the judgment against Dye as garnishee. As to that we say: First: That it did not and while Cook might, in a proper proceeding have had the judgment against Dye, as garnishee, vacated, yet even Cook, could not in this proceeding, do so. If not, certainly Dye, as garnishee at his instance only could not. Second: That, even if it did, a court of equity can vacate said judgment only on condition that equity is done.</p> <p>As To The First Proposition. While we are not concerned as to the right or remedy afforded Cook because of a* subsequent reversal of the judgment against him, yet to clear the matter, it may be well to briefly state what those rights are, and the remedy afforded Cook for asserting them.</p> <p>If, before tbe reversal, tbe judgment against Cook bad been paid by bim, be would, by tbe reversal of tbe judgment, have tbe right to get bis money back. He could sue Pitts for money bad and received. Bank of U. S. v. Bank of Washington, 8 Law Ed. (U. S.) 299.</p> <p>Even if Dye bad paid, tbe judgment against bim as garnishee, to Pitts, Cook would still have the right because of the reversal of tbe judgment against him to recover from Pitts tbe amount paid. Rail v. Wells, 54, Miss. 289-306. The defendant, Cook did not appeal, with supersedeas until long after tbe judgment against Dye, as garnishee, was rendered. Without an appeal, with sn/per sedeas, Pitt bad a perfect right to enforce bis judgment. Sec. 50, Code of 1906; Memphis Grocery Go. v Anderson, 76 Miss. 322. The subsequent appeal, bad super-sedeas, did not have a retroactive effect. This is clear. Runyon v. Bennett, 29 Am. Dlec. 431. Thus it is clear that the judgment against Cook was only voidable, and bad no appeal been prosecuted by Cook tbe judgment against Dye, as garnishee, was regular in every respect. Reversal of judgment. Does tbe subsequent reversal of tbe judgment against Cook ipso facto vacate tbe judgment against Dye, as garnishee, as between Pitts and Dye, not as between Pitts and Cook, but as between Pitts and Dye? That, is tbe only question presented by this appeal. Tbe attorney for tbe appellant, who- presented this case to tbe lower court, relied on, and used as authority the following: 95 Am. St. Rep, 132, et seq., note; 4 Corpus Juris, 1205, sec. 325, Note l’l, 26, Mich, 381; 97 Am. St. Rep. 328; 6 Am. & Eng. Anno, cases 751, and 2 Ruling Case Law, page 271. Your attention is especially directed to tbe case of A. G. Ry. Go. v. Oraioley, 118 Miss. 272.</p> <p>Garnishment is a statutory proceeding whereby a debt due the defendant by another may be subject to tbe satisfaction of tbe judgment against the former. On principle, it is like unto an execution, differing only as to its result, in that intangible, rather than tangible property, is subjected to satisfaction of tbe judgment. In both instances, however, it is the property of the defendant that is subjected. In this respect a judgment against a garnishee is similar, on principle to a judgment against claimant. By such a judgment, neither the claimant, nor the garnishee, is deprived of anything. When the judgment is rendered against the defendant, upon which the execution, in one instance, or the writ of garnishment, in the other, issued, if anyone has the right to complain of the judgment (against the defendant) or the enforcement thereof, it is certainly not the claimant, or garnishee. Of course, in both instances there must be a valid judgment against the defendant, at the time the judgment against the claimant, or garnishee is rendered; but whether the defendant is discharged from such a judgment or not, the defendant, and the defendant only, has the right to- complain.</p> <p>When an execution issues, and is levied on certain tangible property one who claims it, other than the defendant, files a claimant’s affidavit, and the issue to be tried is, whether the property belongs to the defendant or the claimant. The plaintiff, in execution, tenders an issue to the effect that the property levied on, belongs to the defendant and is subject to execution. On this issue the case is tried. To make out his case the plaintiff, must, of course, introduce the judgment, the execution, the officers return and prove that the property, levied on brings to the defendant, and is subject to the execution. That is the very fuondation of the execution and levy, the judgment is introduced. Blch loch v. ¡Stephens, 81 Miss. 711, 38 So. 508.</p> <p>If a judgment is rendered for the plaintiff in execution it is for the property or the value thereof. If the defendant appeals from the judgment, upon which the execution issued, it being presumed he had not prior thereto appealed, with supersedeas, otherwise the execution could not issue, and if on the appeal, such judgment is reversed, it does not, ipso facto reverse the judgment against the claimant, even at the instance of the defendant. Even the defendant must ask for restitution when the judgment against Mid is reversed.</p> <p>What we liave thus stated is in line with the decisions of this court, as we shall clearly show by the following cases: Wills v. Loeb, 59 Miss. 169; Alexander v. Dulaney, 16 So. 355.- We do not contend that Cook was without remedy to have vacated the judgment rendered against Dye, as garnishee, which subjected the debt due by Dye to the judgment against Cook when the latter was reversed, Cook had ample remedy but it is not Cook that complains.</p> <p>When the judgment against Cook, in favor of Pitts, was reversed by this court, this court had the power to order a restitution by setting aside the judgment against Dye, as garnishee, if the record, before this court, showed that such a judgment had been.entered. If, however, the record fails to show that judgment, then Cook had the right, when the cause was remanded, to have the circuit court award restitution by ordering that judgment be set aside. That is the express, holding of the court in Hall v. Wells, 54 Miss. 289-306.</p> <p>As To The Second Proposition? The Complainant, Ap-pellee Did Not Offer To Do Equity. This court is fully committed to the proposition that a judgment, though void, will not be enjoined unless the party who seeks the injunction does equity. Stewart v. Brooks, 62 Miss. 892; N'woman v. Taylor, 69 Miss. 670; Walker V. Mitchell, 97 Miss. 231; Welsh v. Hannie, 72 So. 861.</p> <p>Had the bill in this cause been filed by Cook to vacate the judgment against Dye, as garnishee, because of the subsequent reversal of the judgment, upon which the judgment against the garnishee was predicated, there is no doubt but that Cook would be required to pay the debt owing by him to Pitts. This, as we understand it, is settled in Catlett x. Drummond, 113 Miss. 50, 74 So. 323.</p> <p>Conclusion. To make clear our position on the facts of this case, we contend: 1. That the trial court properly found as a fact that the writ of garnishment was personally executed on the appellee. 2. That the judgment in favor of Pitts against Cook was not void for want of jurisdiction, but at most, only voidable becausce of the fact that the trial court in that case erred in overruling the motion for a change of venue. 3. Even if void, as claimed, it is not subject to collateral attack by the appellee. In this procedeing, as held by this court in Field v. McKinney, 60 Miss. 768, the garnishee has no interest in the jurisdiction of the court nor in the regularity of the proceedings, insofar as they relate to the judgment against the defendant, and cannot of course, thereafter attack the validity of such judgment. Section 2350, Code 1906. 4. While Cook, because of the subsequent reversal of the judgment against him, had ample remedy at law by restitution to have had the judgment against Dye, as garnishee, set aside, yet even he, having failed to avail himself of the remedy the law afforded, cannot, in equity, have said judgment vacated. If Cook could not because of his failure to avail himself of the remedy the law afforded, have relief in equity certainly Dye could not, 5. Dye, as garnishee, neither at law, nor in equity has the right to have the judgment against him, as garnishee, vacated because of the subsequent reversal of the judgment against Cook. 6. Even if it be conceded for the sake of argument, and that only, that Dye has the right to have the judgment against him as garnishee vacated, and equity affords the remedy, yet a court of equity cannot act except upon condition that Dye pays the amount admitted to be due, not by Dye to Cook, but by Cook to Pitts, for which the original judgment against Cook was rendered.</p> <p>We take the position here, as we did in the court below, that the reversal by this court in April, 1917, of the Pitts judgment against Cook, (74 So. 777) necessarily carried with it the garnishment judgment against the Dyes, based on the Pitts judgment. This court, in reversing the cause, used the following language:</p> <p>“In Campbell v. Triplett, 74 Miss. 365, 20' So. 844, Judge Cooper held that where an attachment was sued out in Winston County, but.which was not served on any property in that county, and where the defendants were served in another county, and none of the defendants were found in the county where the suit was filed, the court did not acquire jurisdiction.” He says:</p> <p>“The venue of civil actions of this class is in the county in which the defendants or any of them may be found, and if no defendant is served with process in the county in which the suit is brought, the jurisdiction of the court does not attach. Wolley v. Bowie, 41 Miss. 553; Pate v. Taylor, 66 Miss. 67, 5 So. 515. See, also, Spain v. Winter, Walk. 153; McLeod v. Shelton & Minor, 42 Miss. 517. Judgment of the court below will be reversed, the nlotion for change of venue sustained and the cause remanded to the circuit court of Sharkey County for further proceedings. Reversed and remanded.”</p> <p>From the above, it is clearly evident that it was the opinion of this court and the only opinion which could be rendered, that the Sunflower County court did not have jurisdiction and therefore, the judgment rendered was absolutely void.</p> <p>This being the case, we submit to the court the following authorities on the question of law: “We may state here that we have been unable to find any authorities contrary to those cited. It is about the only case in the recollection of the writer in which the authorities seem to have been all one way.”</p> <p>' In 4 Corpus Juris, page 1205, section 3250, we find the rule stated as follows: “On the reversal of a judgment, order, or decree, a dependent order, judgment or proceeding ancillary and accessory thereto, shares its fate and falls with it.”</p> <p>In Note 11, same page of same authority, section F, we find the following: “(1) Should the judgment upon which a process of garnishment has been issued in aid of execution be set aside, the garnishment proceedings necessarily fall with it. Clough v. Buck, 6 Nebr. 343. (2) Likewise a judgment against a garnishee, cannot stand where the judgment in the main action has been reversed.” Decatur v. Simpson, 119 Iowa, 488, 98 N. W. 496, 97 Am. St. Rep. 328; Chicago Herald Co. V. Bryan, 195 Mo. 590, 92 S. W. 906, 6 Ann. Cas. 751, and note; Smith v. Kansas City, etc., B. Co., 49 Mo. App. 54.</p> <p>We find the same rule stated in 2 Ruling Case Law, page 271, latter part of section 223. Decatur v. Simpson, 93 N. W. 496; Whittington v. Southioorth, 26 Mich. 381; Rowlett v. Lane, 43 Tex. 274.</p> <p>The court will find reference to similar opinions following the same line of reasoning collated in the Third Century Digest, title, “Appeal and Error,” section 4629, and in volume 2 of the Decennial Digest, same title, section 1180. (2) and in Yol. 2,-of the Second Decennial Digest, section 1180 (2). We have cited above the cases found by us exactly in point and here direct the atention of the court to the fact that no opposing cases are cited by the counsel for appellant.</p>

Hon. V. J. Stiuokep,, Chancellor. Suit by Agnes Buckley and others against the City of Jackson. ‘ Decree in favor of defendant, and plaintiff named appeals. The question presented in this appeal is as to whether or not there is a liability for interest when two items composing essential portions of the assessment have been by this court held illegal and not susceptible of assessment as such. The precise question was decided in Lang skiff v. Town of Durant, 84 So. 460.

Hon. D. M. Watkins, Chancellor. Suit by Mrs. Sarah S. Batson against the Mutual Life Insurance Company of New York. Decree for plaintiff, and defendant appeals. No brief found in the record for either side.

Hon. G. C. Tann, Chancellor. Suit by K. C. Hall against the Maryland Casualty Company and another. Decree for complainant, and defendant named appeals.

Hon. W. H. Potter, Judge. . Action by the Yazoo Yarn Mill against E. M. Beale Judgment for plaintiff, and defendant appeals. Beversed and remanded. No brief found in the record for either side.

Hon. W. A. Roane, Judge. Quo warranto by the state, on the relation of O. B. Boone and others, against T. J. Metts and others. Judgment for defendants on demurrer, and relators appeal. No brief found in the record for either side.

Hon V. J. Strioklek, Chancellor. , Proceeding's by the state’s bond attorney to validate school district bonds to which J. P. Wilson and other “objected. Objection sustained, and from a decree holding the bonds invalid, the board of supervisors of Lincoln county, on behalf of the School District appeals. No brief found in the record for either side.'

Hon. C. P. Long, Judge. Action by C. B. Moore against the Swanxp Dredging Company, Incorporated, and others. Judgment on a peremptory instruction for defendants, and plaintiff appeals.

<p>Appeal from circuit of Lee county.</p> <p>Hon. C. P. Long, Judge.</p> <p>Separate actions by A. C. Hambrick and Will Perry and by said Hambrick and Sam Westmoreland against James C. Davis, Federal Agent, and tbe Mobile & Obio Railroad Company. Judgment for plaintiffs, and defendants appeal.</p> <p>No brief found in tbe record for either side.</p>

Hon. W. M. Denny, Jr., Chancellor. Suit by the Mexican Gulf Land Company against the Globe Trust Company and others. Decree for defendants, and plaintiff appeals. Section 2799, Code 1906, provides mandatorily that in an acknowledgment to a deed the state and county must-be stated.

Hon. D. M. Graham, Judge. - Action by the American Packing Company against the Employers’ Liability Assurance Corporation, Limited. Judgment for plaintiff, and defendant appeals. Held: and especially by the supreme court of Mississippi that “Insurance policies are construed most favorably to the insured.” see Germania, Life Ins. Go. v. Bouldin, 100 Miss. 660; W. O. W. v. Bunch, 115 Miss. 512.

Hon. A. J. McIntyre, Chancellor. Suit by the state against R. S. Payne for the abatement of a nuisance. Judgment for complainant, and defendant appeals. We desire to call the court’s attention to the failure of appellee’s brief to distinguish between “spirituous” liquor and “intoxicating” liquor, which is a very important distinction under the statute in question. . The law does not include all “intoxicating” liquors1.