Adams v. Carter

47 So. 409, 92 Miss. 579

Opinion

Whitfield, C. J.,

delivered the opinion of the court.

The appellant sued the appellees and recovered a judgment for $8,228 for default in the payment over of the taxes collected by the administrator’s intestate. The appellees ' pleaded the general issue, denying any liability whatever. There was, consequently, no admission of any kind in the pleadings in the case that anything whatever was due the plaintiff. It is true, that looking to the agreed statement of facts, and looking to the correspondence between the attorneys, made an exhibit, and also looking to the course of the trial, especially the evidence intro duced, there does not seem to have been any real contest in fact over the amount for which the judgment was rendered. But let it be specially noted that there was no admission whatever in the pleadings, or in the evidence, or in the agreed statement of facts, that any amount was due. So far as the trial was concerned, and so far as the pleadings were concerned, liability was litigated, so that, if the judgment should be reversed, it would have to be reversed as an entirety, the action being one at law, and on a new trial the appellees would be at perfect liberty to make any further proof they might be able to offer, and might so far as we can tell, succeed in reducing the amount. In other words, it is not one of those cases in which we can see that in no event could the plaintiff recover less than he has here recovered. Had there been an . agreement of fact that $8,228, was the amount actually due, either in the pleadings or otherwise, then we co-uld have been able, so far as this particular proposition is concerned, to see that in no possible event could the plaintiff recover less. That is not the case before us as shown, and' hence the principle invoked to that effect is, for that reason alone, if for no other, inapplicable here.

The action, be it also specially noted, is one at law, and has no equitable feature about it; and this judgment at law further held that the plaintiff was not entitled to the thirty per centum penalty claimed. Later, after the judgment, the plaintiff coerced, by execution, the payment of the amount of the judgment, $8,228. Still later, the appellant obtained an appeal, not from that part of the judgment disallowing the penalty only, but from the judgment as a whole — the entire judgment. There are several things essential to be borne in mind in order to a correct decision in this case, on this state of the pleadings, in this state. Mississippi is one of the five states of the union which have always rigidly maintained, unwisely, as the writer thinks, the distinction between law and equity, and an absolutely separate chancery system, administered by a chancery court according to the long-settled principles of equity jurisprudence and practice. We have no statute authorizing an appeal from a part of a judgment at law' in a civil case. Code 1906, §§ 1574 and 4945, are in the following words:

“If any statute shall provide a punishment of the same character, but of ibilder type, for an offense which was a crime under pre-existing law, then such milder punishment may be imposed by the court, but no conviction, otherwise valid, shall be set aside and new trial granted merely because of an error of the court in fixing punishment; and such error shall only entitle the party injured to vacate or reverse the judgment as to the punishment, and the legal punishment shall then be imposed by another sentence based on the original conviction or plea of guilty.”

“Where the judgment appealed from is for property, real or personal, and damages, the supreme court, finding the judgment to be erroneous as to the damages only, 'may affirm it as to the property and reverse and remand it for a new trial as to the damages, and may adjudge the costs as may be proper.”

The first section (1574) for the first time authorized this court to reverse the judgment in a criminal case as to the punishment and affirm it as to the conviction. This, of course, has no application here; but it shows the trend of legislative thought as to the point before us. Second, the other section (4945) has manifestly no application, since this "is not a judgment for property, real or personal, and damages, in the sense meant by that section. How, now, do the authorities stand ?

We have in our state but one decision on the subject, Meaders v. Gray, 60 Miss., 400, 45 Am. Rep., 414. But that was an appeal from an equity decree, and is not here in point. We have carefully examined all the authorities cited by the very excellent briefs on both sides. We have found several cases apparently maintaining the proposition that, when the plaintiff accepted money paid, he may still appeal, where the object of the appeal is simply to have a judgment modified by increasing his demand, as where sufficient damages had not been allowed, or where proper interest had not been allowed. But every one of these cases was either under a statute, as in Kentucky, Nevada, and Iowa, and possibly other states; or, secondly, where there had been a concession in the pleadings that the amount received by the plaintiff was due to him; or, thirdly, where the cases were in equity; or, fourth, in cases where the court by its judgment itself required the successful party to do certain things as the condition of entitling him to the benefit of the judgment; or, fifth, where there was reference to matters clearly severable, as in the case of accounts wherein different items .were passed upon, allowed, and disallowed by the receiver, or a master, or a referee — all cases equitable in their nature; or, sixth, where the case was of a peculiar nature, as, for example, where the amount awarded in a partition proceeding to the plaintiff was the proceeds of his own property, so recognized in the pleadings, as in the case of Mellen v. Mellen, 137 N. Y., 603, 33 N. E., 545. But owing to the large number of states in which the distinction between equity and eommon law has been abolished, •where the same court administers both equitable and common-'law jurisdiction, a practice wholly foreign to this state, great care and nice discrimination are required in order to determine whether any cited authority is authority for us under our system.

Recurring to the judgment in this case, it will be noted that it is a judgment in an action at law in which no equitable feature was involved. That judgment is an entirety. The case of Glover, etc., v. St. Croix County, 71 Wis., 317, 36 N. W., 864, seems directly in point. There the action was to have certain taxes declared void. The court found some $1,800 to be valid, and $314 to be invalid. The plaintiff paid the required sum, $1,800, into court, and the court adjudged that sum to be in -full payment and satisfaction and discharge of- all taxes. This money was paid over, on an order procured to that effect, to the county treasurer, who gave his receipt therefor. The parties who received the money subsequently appealed, and the court said this: “The appeal is ‘from the whole and every part of the judgment/ The counsel for the plaintiff insists that the de-fendants, by accepting the money, waived their right to appeal from the judgment. We think this position is correct, and that the appeal must be dismissed. The case comes fully within, the principles decided in Cogswell v. Colley, 22 Wis., 399; Flanders v. Merrimac, 44 Wis., 621; Bennett v. VanSyckel, 18 N. Y., 481; Murphy v. Spaulding, 46 N. Y., 556; Carll v. Oakley, 97 N. Y., 633. These decisions go upon the ground that a party cannot proceed to enforce and have the benefit of such portions of a judgment as are in his- favor and appeal from those against him; in other words, that the right to proceed on a judgment and enjoy its fruits, and the right to ax>peal therefrom, are totally inconsistent positions. The election to-pursue one course must be deemed an abandonment of the other. TIere the plaintiff paid all the taxes which it was adjudged it should pay as a condition to enjoining those which the court held illegal. The defendants have seen fit to a.pxffv for and accept the money thus paid. By complying with the provisions of the judgment, the plaintiff is forever estopped from questioning the legality, either in law or in equity, of the taxes paid. The defendants’ contention is that all the taxes levied uxoon the plaintiff’s lands in 1883 should be held valid in equity. If they desired to appeal from the judgment which held illegal' a portion of those taxes, they should not have accepted the money paid into court, which was adjudged to be in full satisfaction of all the taxes in controversy. The defendants seek to receive and retain those taxes which the court held valid and just, and to enforce the collection of the taxes which the court held illegal. The provisions of the judgment are connected and dependent. As the defendants have accepted all that is of benefit to them, they should not at the same time ask to have the whole judgment reversed. Such a course is not open to them. The correctness of this view is fully demonstrated by the reasoning in the cases above cited, and we are relieved from any further- discussion of the question. The learned counsel for the defendants says the taxes were ordered to be paid into court for the use of the defendants; that they belonged to the county, which was justly entitled to them; and that no condition was annexed to the acceptance of the money by the defendants. It is true that the judgment does not provide that, if the defendants apply for and accept the money paid into court, this shall be a waiver of the right to appeal from the judgment. But the authorities above cited show that the law attaches that consequence to the acts of the defendants; that it will not allow them to enforce a right conferred by the judgment and at the same time prosecute an appeal from it. The acceptance of the money, under the circumstances, must be referred to the defendants’ right to it under the judgment, and cannot be considered as a voluntary payment by the plaintiff, but as a payment in pursuance of the judgment. The defendants were not obliged to accept the money. They might have let it remain in court until the litigation was terminated; but they chose to apply for and receive it, thus indicating, in a most positive manner, a purpose to assert and claim all the benefit the judgment gave them. To sustain the appeal, under the circumstances, would ‘be contrary to that just principle which forbids one from claiming under, and at the same time repudiating, any instrument.’ ” It will be observed that there, as in this case, the appeal was from the whole and every part of the judgment. Let it also be noted that there the court said the provisions of the judgment were connected and dependent. That is also the case here, since the thirty per cent, damages could not possibly have been allowed unless there had been a judgment for the principal amount of taxes. In the case of McCalley v. Otey, 103 Ala., 472, 15 South., 946, the appeal was from a decree of the chancery court, and, besides, the court said, “under no circumstances could the appellant be entitled to less than that decreed,” and because of these two reasons the motion to dismiss the appeal was held not good.

The strongest case against the., plea in bar is the case of New Rochelle Gas & Fuel Co. v. Charles Van Benschoten, 47 App. Div., 447, 62 N. Y. Supp., 398. But that was a proceeding equitable in its nature, the appeal being from a judgment founded on a report of a referee. The court rests its opinion upon the same proposition upon which the supreme court of Alabama proceeded — that in any event the plaintiff was entitled to retain the sum he had received, and that the •only question that could be raised on appeal was whether he was entitled to recover more, citing Monnet v. Merz, 60 N. Y. Super. Ct., 256, 17 N. Y. Supp., 380. But this authority is inapplicable here for two reasons: First, this cited case of Mon-net v. Merz expressly held that an appeal could not be prosecuted from a judgment in toto after the plaintiff had collected the amount of it; and, secondly, Monnet v. Merz was an appeal from an award by a referee on disconnected and distinct items, in its nature an equitable proceeding. The case, cited by this court in Meaders v. Gray, 60 Miss., 400, 45 Am. Rep., 414, of Erwin v. Lowry, 7 How. (U. S.), 172, 12 L. Ed., 655, was also, as stated by the court, a suit which partook more of the nature of an equity than a law suit, and is in other respects clearly distinguishable from this case, as shown by learned counsel for the appellee. So the appeal of the commonwealth, in the Matter of Wm. Fagely, deceased, was an appeal from a decree of the orphans’ court, in its nature an equitable proceeding. That was a case where various exceptions had been filed; but one of the exceptions, the sixth, had been reversed, and there was no. agreement by the parties that the decision of the court on that exception should be final. Mr. Freeman, in his learned note to the case of Clark v. Ostrander (N. Y.), 13 Am. Dec., 548, 549, states the general rule to be that the appellant, in this sort of a case, is barred, and then very pertinently adds: “And it was held in Benkard v. Babcock, 2 Rob. (N. Y.), 175, that even in the •case of a judgment at law the prevailing party, after having accepted the amount of the verdict, might appeal on the ground of its insufficiency; and that such acceptance amounted to no more than the acceptance of a part of his claim before judgment would have done. But in such a case, if the appellate tribunal cannot try the cause de novo [as we cannot], and can only reverse the judgment and remit the parties to the court below, we have the inconsistency of a party undertaking to claim the benefit of the judgment and at-dhe same time attempting to set it aside as erroneous.” This criticism of Mr. Freeman is a shot through the center of the target. This court has nothing but appellate revisory jurisdiction. All we could possibly do in this case under our procedure would be, in case of error, to reverse the judgment and remand the cause for a new trial in the court below.

The learned counsel for appellant insists earnestly that he only appealed from that part of the judgment disallowing the penalty, and that all that he seeks here is, not a reversal of the judgment, but a modification of it; but he is plainly in error when reference is had to the proceedings on appeal. His appeal is prosecuted from the whole judgment as an entirety — a judgment, the provisions of which are dependent one upon another. Besides, if we were to pursue the course he indicates, in the face of our-procedure, and reverse a law judgment which is an entirety, and hold that the thirty per cent, penalty should have been allowed, going even that far, we should still be compelled, under our practice, not to enter a judgment here by way of modification for the penalty alone, but to reverse and remand the cause for a new trial. We are dealing with a judgment at law, an entire thing, which has been appealed from as an entirety. ■

In view, therefore, of the case made by the record, and in-view of the wide distinction between the equity and common-law procedure as to this court’s power in reversing an equity decree and a judgment at law, and in view of the absence of any statute such as exists in Kentucky and other states, we are constrained to hold that the plea in bar is well taken. It might be well for the legislature to provide by statute that this -court should, have the power to affirm in part and reverse in part, as justice might require, where the appeal is from a judgment at law; but in the absence of such a statute, we are held down to the well-settled rule indicated in appeals from judgments of courts at law.

The plea in bar is sustained and the appeal dismissed. ■