Grayson v. Harris

58 So. 775, 102 Miss. 57

• Court: Mississippi Supreme Court
• Decided: March 15, 1912
• Status: Published

Opinion

Mayes, C. J.,

delivered the opinion of the court.

On the 21st day of October, 1907, a justice of the peace judgment was recovered by E. ,G. and Charles O’Ferrell composing the partnership firm of O’Ferrell Bros., against W. F. Shows, A. E. Grayson, and Thomas Sims, for- the sum of one hundred forty-one dollars, and seventy-six cents. No appeal was prosecuted from this judgment to the circuit court, and the validity of the judgment is not questioned in this proceeding. On the 16th day of January, 1908, an execution was issued under the above judgment, directed to the sheriff of the county, and the sheriff levied the execution on certain real property belonging to W. F. Shows. Within six months after the rendition of the judgment, but after the levy of the execution by the sheriff and before the sale, W. F. Shows, on whose property the execution had been levied, and who was also one of the defendants in the judgment, applied for a writ of certiorari in accordance with section 90 of the Code of 1906, which writ was granted, and under it the case was removed to the circuit court. As an incident to obtaining the writ of certiorari, and in accordance with the requirements of the statute, Shows executed and filed a supersedeas bond, conditioned as required, which was duly approved, and all the papers in the case were sent by the justice of the peace to the clerk of the circuit court of the proper county. Afterwards the case was docketed in the circuit court, and on the 27th day of November, 1908, at a regular term of the circuit court, the case came on for trial on the certiorari and was disposed of by the circuit court. The judgment of the circuit court was substantially as follows: “This cause coming on to be heard on. plaintiff’s petition and writ of certiorari, the court is of the opinion that there is no error on the face of the record, and that the writ of certiorari was improperly sued out. It is therefore ordered by the court that the petition and writ be dismissed, and that petitioner, W. F. Shows, principal, and his sureties [naming them], pay all costs in this behalf expended, for which let execution issue.” . »

It thus appears that the only judgment rendered on the bond by the circuit court was for costs. No appeal was taken from the judgment of the circuit court, and therefore the judgment dismissing the writ of certiorari and assessing costs was a final judgment. After the writ of certiorari was awarded, and after bond had been executed and approved, W. F. Shows sold the land, which had been previously levied on under the writ of execution, to Bura Hillman and E. L. Shows. There were two deeds, and both deeds were duly filed in the office of the chancery clerk and recorded- — one on the 27th day of September, 1908, and one on the 28th day of February, 1908. Subsequently the property was conveyed by Bura Hillman and E. L. Shows to T. J. Harris, Doctor Cranford, and O. D. Shows. Subsequently one A. E. Grayson, also a defendant in the judgment, purchased the same from O’Ferrell Bros., and on some day in the year 1910, claiming- to own the judgment, Gray-son had the justice of the peace, in whose office the judgment had been obtained, issue a vendi exponas, directed to the sheriff of the county, directing- him to sell the lands which had been bought by the parties above named, the property to be sold as the property of "W. S. Shows, to satisfy the judgment. When this last execution was-issued the sheriff advertised the lands for sale on the 2d day of January, 1911. When this last advertisement was made, the appellees, claiming to own the property, applied for an injunction to restrain the sheriff from selling the lands, and restraining the justice of the peace from issuing any further executions against the lands, and enjoining- Grayson from taking any further steps towards subjecting- the lands to the satisfaction of the judgment. The bill alleges that when W. F. Shows applied for a writ of certiorari, and executed the supersedeas bond required by law, the effect of same was to-discharge and release his property from the lien which had been established by the levying- of the execution. In other words, ” the bill charges that, when the certiorari was granted and the bond given, it was a supersedeas bond, and had the effect to dissipate and dissolve all prior liens which had been established by virtue of the levy of the execution, and the property levied on became the property of Shows, with absolute dominion over it, unaffected hy the lien, and that Shows had a right to dispose of the property, and the purchaser got a good title, free from any liens which might previously have attached under the execution. The above is the substantial contention.

This hill was demurred to on many grounds; hut the .first and fifth are the only ones we shall notice, since they will dispose of the case. The first ground of the demurrer states that the judgment of the circuit court, dismissing the petition and writ of certiorari, and giving judgment against petitioner and his sureties on his bond for costs, only had the effect of leaving the judgment of the justice of the peace court in full force and effect, and also the levy made under the judgment. The fifth is that there is no equity on the face of the bill. This last cause of demurrer covers the whole case. The court overruled the demurrer, and allowed an appeal to this court to settle the principles of the case.

Section 90 of the Code of 1906, in relation to the procedure on certiorari to a justice of the peace court, is as follows: “All cases decided by a justice of the peace, whether exercising general or special jurisdiction, may, within six months thereafter, on good cause shown by petition, supported by affidavit, he removed to the circuit court of the county, by writ of certiorari, which shall operate as a supersedeas, the party, in all cases, giving bond, with security, to he approved by the judge or clerk of the circuit court, as in cases of appeal from justices of the peace; and in any cause so removed by certiorari, the court shall be confined to the examination of questions of law arising or appearing on the face of the record and proceedings. In case of an affirmance of the judgment of the justice, the same judgment shall be given as on appeals. In case of a reversal, the circuit court shall enter up such judgment as the justice ought to have entered, if the same be apparent, or may then: try the cause anew on its merits, and may in proper cases enter judgment on the certiorari or appeal bond, .and shall, when justice requires it, award restitution. The clerk of the circuit court on the issuance of a certiorari, shall issue a summons for the party to be affected thereby, and in case of nonresidents may make publication for them as in other cases.” It is seen from the above section that, where. the writ of certiorari is granted, it acts as a supersedeas, and the bond required is the same as required for an appeal from a justice of the peace in civil cases, under section 82 of the Code of 1906.

The sole question is: "What is the effect of the supersedeas granted in this case? The facts show that before the supersedeas was granted an execution had been issued and levied on real property, and as a consequence a lien had been fastened on same. Is this lien destroyed by the granting of the supersedeas, or is the effect of the supersedeas simply to suspend further action under the judgment until the supersedeas is disposed of? In other words, are liens which were acquired before the supersedeas was granted destroyed by it, or are they merely stayed and preserved during the life of the supersedeas¶ "We desire to emphasize the fact that in this case the levy was made on real, and not personal, property. "We do this because many courts draw a distinction between the effect of a supersedeas where the levy is on personal property, instead of real estate. Many courts hold that a levy is discharged by a supersedeas when the levy is bn personal property, but hold to the contrary when the levy is on real estate. There seems, to be much reason in making the distinction, and we reserve the question for future determination. See Thalheim v. Camp Phosphate Co., 48 Fla. 190, 37 South. 523, 5 Ann. Cas. 784, and note. The authorities on the proposition involved in this case are in irreconcilable conflict, and we must choose that line of authority which we conceive to most accurately work out the best principle of right. It is our view that the granting of the supersedeas affects only future acts, and that it has nO' retroactive operation. It suspends future action, and prevents any further acquisition of liens or rights; but it does not destroy or dissolve liens or-rights acquired' before the supersedeas was allowed. It holds conditions as they were at the time of granting the supersedeas, and when it is dispensed with rights of the parties are to be proceeded with and enforced as they would have been liad no supersedeas been allowed.

One o‘f the most interesting discussions on this subject which we have found is to be found in the note to the case of Thalheim v. Camp Phosphate Co., 48 Fla. 190, 37 South. 523, in 5 Ann. Cas. 784. This case also demonstrates the hopeless conflict of the courts on this subject. ' It is our judgment that the best-reasoned authorities hold that the perfecting of a supersedeas only stays further proceedings, and does not interfere with what has already been done. In the case of Thalheim v. Camp Phosphate Co., supra, the court said: “The levy of an execution is not defeated by a subsequent writ of supersedeas; but the only effect a supersedeas can have in such a case is to stay all further proceedings, letting things which have already been done remain in statu; quo.”

It'was error in the court to overrule the demurrer, and its judgment in so doing is reversed, demurrer sustained,, and cause remanded, for the settlement of other questions which may arise on the record as to damages, etc.

Reversed and remanded.

ON SUGGESTION OR ERROR.

delivered the opinon of the court.

This cause was decided at a former day of the term, but is called to our attention again by a suggestion of terror. We thoroughly discussed the law in the former 'opinion, and held that the giving of a supersedeas did 'not have the effect of destroying previously acquired iliens on land. We held that as to lands, when a supersedeas was given, its effect was only to arrest further taction, and hold conditions as the supersedeas .found them at the time of the execution of the bond, leaving parties to enforce their rights, after the dissolution of the supersedeas, as they would have been enforced had no supersedeas been given. This is the substance, pf the former opinion, and we shall not undertake to repeat in detail here the holding of the court in the opinion first delivered, because it is in the record to speak for itself.

Counsel filing the suggestion of error assert that the former opinion is in conflict with the case of Buckley v. George, 71 Miss. 580, 15 South. 16, and declare that they “do not think such an important principle” as that declared by the Buckley case “should be lightly set aside, without at least having the case referred to in the opinion of the court.” We respond to the suggestion of error, because in our judgment counsel are misled by the Buckley case. If the Buckley case has any bearing on the question in this case, it supports the view of the court and does not conflict with it. The question in this case is as to whether or not a supersedeas destroys previously acquired liens on land. The question in the Buckley case was whether or not- the receivers should continue in possession of a stock of goods, choses in action, and land, after the execution of a supersedeas bond by the party whose property had been placed in the hands -of a receiver. In the Buckley case there was no question as to whether or not a lien was destroyed by the execution of a supersedeas. It was a question of where the "title was vested pending an appeal with. supersedeas from an order of the chancery court appointing a receiver. In the Buckley case the facts show that a receiver was appointed to take charge of a stock of goods, choses in action, and land. At the time the receiver was appointed, Mrs. Buckley applied for an appeal to the supreme court with a supersedeas. The chancellor allowed the appeal, but denied the supersedeas, whereupon Mrs. Buckley applied to the chief justice of this court for a writ of supersedeas, which was granted, and in accordance therewith Mrs. Buckley executed a supersedeas bond and demanded of the receivers that they give to her the possession of her property. The receivers declined to do this, and afterwards Mrs. Buckley instituted suit on their bond for damages, which she claimed for the deterioration in the value of the stock of goods, and for the detriment to her business on account of the refusal, on the part of the receivers, to turn her property to her after the execution of the supersedeas bond. It appears from the case that the order of the chancellor appointing the receivers was reversed by the supreme court before the suit of Mrs. Buckley was instituted on the bond. On these facts, the court held in the Buckley case that “ordinarily, the rule undoubtedly'is that a supersedeas fixes and preserves the existing conditions until the cause can be finally heard and determined. Nothing that has been done under the judgment or decree is undone, or its validity impaired; but nothing further can be done, for the judgment or decree being the sole authority for action, and it being superseded, there is necessarily a suspension of action. But it would be a fatal adherence to rules of procedure that would destroy an estate to preserve an analogy; and when it is, in the nature of things, impossible that the status can be preserved by inaction, it necessarily follows that action of some sort by some one must be permitted. To give any effect to a supersedeas, it must be held to at least suspend‘‘further action under the judgment or decree. ... If the supersedeas merely paralyzes the receiver as an actor, and leaves the property, as it were, in mortmain pending the appeal, the strange result will have been produced of changing the nature of the decree originally made, of authorizing that to be done which never would have been directed by any court, and of destroying the estate by enforced inaction and mere lapse of time. . . . The legal effect of the supersedeas was to withdraw from the receivers the right to the possession of the property, and vest that right in the party from whom it had been taken.”

It will be seen from the above opinion that the court distinctly recognizes the application and soundness of the rule which we announced in the former opinion of this court. In the Buckley case the court says: “The rule undoubtedly is that a supersedeas fixes and preserves the existing condition until the cause can be finally heard and determined.” But when the application of this rule would result in the destruction of the estate, the court will not adhere to this rule of procedure merely to preserve an analogy. In all such cases courts have power to make such orders as are necessary for the preservation of the estate, and since, when the supersedeas bond was given by Mrs. Buckley, it prevented any further action on the part of the receivers, and since, if they could not act, it would destroy the estate itself, the court in that case gave that effect to the supersedeas which was necessary to preserve and not destroy.

But the question in that case is totally different. The Buckley case illustrates the reason why the authorities make a distinction between real estate and personal property. If there was no distinction and the giving of a supersedeas -allowéd no further dealing with personal property until after the supersedeas should be disposed of, it might result in the entire loss of the property itself, and hence the courts, applying the principle which is announced in the Buckley case, refuse to “follow an analogy where it leads to the destruction of an estate,” and make a distinction between real and personal property in the effect given to a supersedeas.

The suggestion of error is overruled.