guage at the conclusion of each of the said classes, "And subject thereto in order of priority," means that each class stated in said order is to be given priority over those classes following in numerical order, and that the note attached to class 2 is controlling. [4] The question as to the measure of damages which appellant may be entitled to recover seems simple of solution. In fact, there is little, if any, controversy between the parties as to this proposition. Appellants in order to recover for the loss suffered were not required to go into market and supply themselves with the coal which appellee had failed to ship them, but had the right to treat the contract as breached by appellee, and the measure of their damages is the difference between the contract price of the coal and the market price at the time and place of delivery. Eaves & Co. v. Harris, 95 Miss. 607, 49 South. 258; Sussman, Warmser & Co. v. Seafood Co., 127 Miss. 420, 90 South. 116; 24 R. C. L. § 335. The record with reference to the damages appellants may be entitled to recover is in such state of uncertainty that we think the case should go back to the chancery court to ascertain what damages, if any, appellants suffered. Reversed- and remanded. CANNON V. STATE. (No. 24254.) (Supreme Court of Mississippi, Division A. May 23, 1924.) (Syllabus by the Court.) Criminal law 260 (8)-Dismissal of appeal to circuit court on failure of defendant and his attorney to appear and refusal of motion to reinstate held error. ANDERSON, J. Appellant, Vardie Cannon, was tried and convicted before a justice misdemeanors for which he was fined and of the peace of Itawamba county of several sentenced to imprisonment. From these judgments he appealed to the circuit court of that county, which court dismissed said appeals and ordered procedendo in each of said cases, from which judgments appellant prosecutes this appeal. embodied in one record, and in view of the The proceedings in all of these cases are fact that the propriety of the action of the circuit court in dismissing said appeals depends in each case upon exactly the same state of facts, all the appeals will be disposed of in one opinion. circuit court erred in dismissing said apThe only question is whether or not the peals. The Assistant Attorney General in his brief states the facts as strongly for the state as the record will justify. His statement is as follows: "The circuit court began the call of the criminal docket at 8:30 a. m. by the judge's watch. When these cases were called, neither the appellant nor his attorney answered, and the appeals were dismissed. Before the sounding of the docket had been concluded, appellant's attorneys appeared, and within five minutes thereafter appellant appeared in person. It is not exactly clear whether appellant arrived before the court concluded the call of the docket or not, but such is the impression gained by a Where a defendant was convicted of a mis-had been called for trial before a motion to reading of the record. At any rate no cases demeanor in the court of a justice of the peace reinstate was presented to the court, the moand appealed to the circuit court, where the law provides for a trial de novo, it was error to tion being presented at 9:05 a. m., exactly 35 dismiss the appeal and order a procedendo, and minutes after the court convened. There was refuse to reinstate on timely motion, where it a difference of about ten minutes between the was shown that although defendant and his watch of the judge and that of counsel for apattorney, were absent at the time of dismissal, pellant. We express no opinion as to which was correct for each swears by his own, but such absence was not the result of neglect or willfulness on their part, and both appeared in will assume that the timepiece of the judge court only a few minutes after such dismissal was right." and entered said motion to reinstate. Appeal from Circuit Court, Itawamba County; C. P. Long, Judge. Vardie Cannon was convicted before a justice of the peace of misdemeanors and ap For reversal appellant relies on Morris v. City of Tupelo, 129 Miss. 887, 93 South. 433. We are of opinion that the Morris Case is controlling in favor of appellant's contention. Reversed and remanded. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (100 So.) WALKER et al. v. STATE. (No. 23967.) (Supreme Court of Mississippi, Division A. May 19, 1924.) (Syllabus by the Court.) I. Criminal law 419, 420(8)-Testimony as to statement by defendant's sister out of defendant's presence held inadmissible. Testimony as to statement by defendant's sister that defendant had told her that she had committed the crime, not made in defendant's presence, held inadmissible. 2. Criminal law 1169(1)-Testimony as to statement by defendant's sister as to defendant's statement to sister in defendant's absence held prejudicial. In prosecution for murder, testimony as to statement made by defendant's sister, in defendant's absence, as to statement made by defendant to sister, corroborative of defendant's Confession introduced over defendant's objection, and other facts showing defendant's guilt, held prejudicial. 3. Criminal law 419, 420(1)-Hearsay dence held inadmissible. fessed to the killing, stating that she struck the child two blows on the head with a hammer which caused its death. This confession was introduced over her objection, at the trial. [1] At the grave of the dead infant, while the sheriff and other officers were examining the body to ascertain the cause of death, Lizzie Stubbs, sister of Virginia, was questioned in the presence of the officers and the crowd of white people there assembled, and she stated that on the day the child died she went to a neighbor's house to get some milk, and when she returned home to the house where she and her sister Virginia were living, Virginia told her that she (Virginia) had killed the baby because it was going to die anyway; and that the hammer had blood on it when she (Lizzie) found it in the back of the house that day That statement made by Lizzie at the grave was not in the presence of Virginia Stubbs, who was then in jail. [2] This statement of Lizzie was exceedevl-ingly damaging to Virginia, because it was corroborative of Virginia's confession, and also corroborated and supported other facts and circumstances showing her guilt, with reference to the hammer and the blows on In prosecution for murder of baby, officer's testimony as to statements made in absence of defendant that defendant wanted to kill baby held inadmissible, being hearsay. Appeal from Circuit Court, Simpson County; W. L. Cranford, Judge. Enoch Walker and Virginia Stubbs were convicted of murder, and they appeal. Reversed, Enoch Walker discharged, and case against defendant Virginia Stubbs remanded for new trial. the head of the dead infant. The sheriff, over the objection of the ap pellants, was permitted by the court to tell the jury everything that Lizzie had said at the grave incriminating Virginia as the murderess of the infant. The court also permitted the sheriff to testify as to what Lizzie at the grave, and Virginia in jail, both had said, not in Enoch's presence, as to the con E. L. Dent, of Collins, and A. W. Dent, of nection the appellant Enoch Walker had Mendenhall, for appellants. 1 F. S. Harmon, Asst. Atty. Gen., for the State. HOLDEN, J. The appellants, Enoch Walker and Virginia Stubbs, were convicted of the murder of a 10 days' old infant of Virginia Stubbs, and were sentenced to the penitentiary for life. We shall only state enough of the facts to understand the decision upon appeal. with the killing of the infant; the witnesses testified that Lizzie said that Virginia said, etc. [3] There is absolutely no testimony in this record incriminating Enoch Walker, except the hearsay testimony of the officers who testified they heard Virginia say, and that Lizzie said Virginia said, that Enoch Walker wanted to do away with the baby because it was too white. These statements by Virginia and Lizzie were not even made in the presence and positive hearing of Enoch Walker, nor in court at the trial, and of course was not competent testimony to establish his guilt. So, appellant Enoch Walker must necessarily be discharged under the proof in this case. Several grounds are urged for reversal as to the conviction of Virginia, and many of them are indeed serious; but we shall notice only one, which will result in a reversal, and the others may not arise on a new trial. The young infant of the appellant Virginia Stubbs died and was buried on the place occupied by the appellants. Enoch Walker lived in the house with Virginia Stubbs and her sister Lizzie. None of the parties were married, but the two women, Virginia and Lizzie Stubbs, had a number of bastard children each. After the dead infant had been buried about 40 days, the body was disinterred by the officers of the county, and it was discovered that the child had died from two hammer blows on the head. When it The error that we shall reverse on, as to developed the child had been killed by vio- Virginia, is that the court should not have lent means, Virginia Stubbs, one of the ap- permitted the officers to testify as to what pellants herein, was immediately arrested Lizzie said with reference to the admission and lodged in jail. She afterwards con- lof guilt by Virginia, when Virginia was not For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes present when the statement was made by Lizzie at the grave, but was then incarcerated in jail. This testimony was clearly inadmissible, pure hearsay, and was very injurious to the rights of Virginia Stubbs in the trial of her case, and for this error a new trial must be granted her. The appellants did not take the stand in their own behalf at the trial. Lizzie testified that she had been whipped and made to tell the story against Virginia, and that it was false. Therefore her statement at the grave that Virginia had told her that she killed the baby with a hammer, because she thought it was not going to live anyway, was hearsay testimony when given by the officers at the trial. The testimony of the sheriff, a man of high standing, before the jury, as to this statement made by Lizzie against Virginia at the grave of the infant, being very damaging in its nature, we are not prepared to say that without it there would have been a conviction of Virginia, since there are a number of other doubtful propositions appearing in the case, which are unnecessary for us to mention at this time. Therefore the judgment of the lower court is reversed, the appellant Enoch Walker discharged, and the case against Virginia Stubbs is remanded for a new trial. Reversed, Enoch Walker discharged, and the case against Virginia Stubbs remanded for a new trial. STARLING v. SORRELL et al. (No. 23980.) (Supreme Court of Mississippi, Division B. May 12, 1924.) (Syllabus by the Court.) 1. Judgment 87-When consent judgment in replevin is void on face. A consent judgment in a replevin suit is not void upon its face unless it show either, (1) want of jurisdiction over the subject-matter, (2) want of jurisdiction over the parties to the action or some of them, or (3) want of power to grant the relief contained in the judg ment. Whittington & Bradford, of Greenwood, for appellees. SYKES, P. J. trustee, sued appellees (defendants) in the The appellant, Starling, circuit court of Leflore county upon the fol lowing judgment rendered in Issaquena county: "State of Mississippi, County of Issaquena. "Henry Starling, Trustee, v. J. L. Haley, Jr., et al. No. 568. "We agree that in the replevin case pending in the circuit court of Issaquena county, Miss., a judgment shall be rendered in favor of the plaintiff against the defendants and the sureties upon the replevin bond for the sum of $2,500.00. "Said judgment to be as follows: "By consent of plaintiff and defendants in this case, it is ordered and adjudged that the plaintiff, Henry Starling, Trustee, shall have of and recover from J. H. Sorrell, defendants, and H. B. Harper and Lucile Richburg, sureties upon the replevin bond, the sum of $2,500 and all costs herein expended; said judgment to bear 6 per cent. interest from March 6, 1922. issue against this judgment prior to December "It is further agreed that no execution shall 1, 1922. "It is further agreed that this judgment shall constitute no lien upon the property, real or personal, of J. L. Haley or J. L. Haley, Jr., known as the Smedes property located near Smedes Station, Sharkey county, Miss. "This judgment shall be enrolled only in Issaquena county. "Ordered, adjudged and decreed, this 6th day of March, 1922. "It is agreed that this judgment shall be entered the first day of the circuit court of Issaquena county, Miss. "Witness our signatures, this 28th day of February, 1922. Percy & Percy, Attorneys, "J. L. Haley." This judgment was duly enrolled in Issaquena county. Demurrers were filed by the defendants alleging that this judgment is void. The causes assigned are, first, because the judgment does not provide for the alternative return of the property in accordance with the statute relating to a judgment in replevin; that the declaration fails to make exhibits a certified copy of the entire record; that the sureties on the replevin bond are not shown to have agreed to this judgment. These demurrers were sustained, plaintiff declined to amend, and judgment final was Appeal from Circuit Court, Leflore County; entered in favor of the defendants. From S. F. Davis, Judge. Suit by Henry Starling, trustee, against J. H. Sorrell and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded. which judgment this appeal is prosecuted. The sole question here presented is whether or not this agreed or consent judgment is void upon its face. It is the contention of the appellees that the judgment is void, and this fact is shown upon its face, because it does not affirmative R. C. McBee, of Greenwood, for appellant. (100 So.) ly appear from the judgment that all parties, including the sureties on the replevin bond, appeared and consented to its rendition; neither does the authority of J. L. Haley to sign this agreement for the benefit of all parties affirmatively appear. In legal effect there is no difference between a consent judgment and a judgment entered after a trial. The one is as legal and binding as the other when the court which rendered it has jurisdiction. "Any judgment entered by consent where the court has full jurisdiction is as efficacious as though it had been entered after a trial of the issues, and is binding and conclusive between the parties and their privies, unless procured by fraud." 11 Enc. Pl. & Pr. p. 1028. It is apparent from an examination of the judgment in this case that there was a written agreement entered into on the part of Percy & Percy, attorneys, and J. L. Haley, that a consent judgment should be entered the first day of the circuit court of Issaquena county, evidently after the agreement was consummated. This agreement does not show the authority of Haley. It is also apparent that it was only the intention of the parties to this agreement that the form of the judgment embodied therein should only be entered by the clerk as the judgment, and not for the entire agreement to be entered as the judgment. The judgment was entered in open court. It is to be presumed that the defendants were in court and that they knew and consented to the judgment. This is presumed from their silence. [1] Section 116, Freeman on Judgments (4th Ed.), states the rule about void judgments as follows: "If a judgment is void, it must be from one or more of the following causes: (1) Want of jurisdiction over the subject-matter; (2) want of jurisdiction over the parties to the action, or some of them; or (3) want of power to grant the relief contained in the judgment. In pronouncing judgments of the first and second classes, the court acts without jurisdiction, while in those of the third class it acts in excess of jurisdiction. If the want of jurisdiction over either the subject-matter or the person appears by the record, or by any other admissible evidence, there is no doubt that the judgment is void." [2] Testing the judgment by this rule, it is apparent that the court had jurisdiction over the parties, over the subject-matter, and had the power to grant the relief or enter the judgment. The agreement shows what the consent judgment is to be, and those parts of this agreement both before and after the consent judgment are really surplusage. Whether Haley had or had not authority to make this agreement, the judgment was entered in open court, the defendants were in court, and it was their duty, if the judgment did not em body their agreement, to have objected then and there. The presumption that a judgment is correct exists wherever there is a possible state, of facts which would justify the judgment. Duncan v. McNeill, 31 Miss. 704; Henderson v. Winchester, 31 Miss. 290; Cannon v. Cooper, 39 Miss. 784, 80 Am. Dec. 101. The judgment is not void against the sureties on the replevin bond. By signing the bond they became responsible and liable to satisfy any valid judgment rendered against the principal. "One who becomes surety on a replevin bond thereby becomes a joint debtor with the principal obligor, and ordinarily his undertaking extends to all proceedings and adjudications in the same action through every court to which it may be carried by appeal in case the party giving the undertaking is finally defeated." 34 Cyc. p. 1582. "The general rule as to the conclusiveness upon the surety on a bond given in the course of legal proceedings, of a judgment against the bond, and he is conclusively bound by the judgprincipal, applies to a surety upon a replevin ment against the principal as to all matters which were, or might have been, litigated in the main action, although he was not served with process and did not appear and defend, and the surety cannot question the judgment upon any other ground than fraud or mistake," etc. 34 Cyc. 1585, 1586. To the same effect is Freeman on Judgments (4th Ed.) § 180. The sureties on the replevin bond were in court subject to the orders and judgments of the court to the same extent as were the principal obligors in the bond. While the statute provides that the judgment should be in the alternative for the return of the property, yet the omission from the judgment of a provision for its return does not render the judgment void but only makes it irregular. It is within the power of the defendant to waive this provision and agree only to the rendition of a money judgment. Where a consent judgment is entered only for an amount of money, it will be conclusively presumed that the defendant by consent thereto waived his right to the alternative return of the property. "The mere fact, however, that there is no judgment for a return of the property nor for its value if a return cannot be had, does not lateral attack, for defendant may have waived render the judgment void or subject to colthe right to a return of the property." 34 Cyc. 1546, 1547. The judgment in this case is not void upon its face, and the demurrers should have been overruled. The judgment of the lower court is re versed, the demurrers of the defendants are overruled, and the cause is remanded, with leave to the defendants to plead. Reversed and remanded. EDWARD HINES YELLOW PINE TRUSTEES v. STEWART et al. (No. 23739.)* (Supreme Court of Mississippi. May 12, 1924.) (Syllabus by the Court.) Judgment 688-Judgment in action for Injuries revived in name of wife as executrix held res judicata in her subsequent action for damages sustained by herself and children. A servant sued his master for damages for personal injuries caused by the wrongful act of the master, and while the suit was pending the plaintiff died from such injuries, leaving a wife and children. The wife, as his executrix, had said cause revived in her name as such executrix under section 2093, Code of 1906 (section 1760, Hemingway's Code), and recovered therein a judgment against the defendant for the injuries suffered by the decedent. The executrix then brought another suit on behalf of herself and children under section 721, Code In Banc. is that the questions involved are res judicata; that in a former suit between the same parties or privies involving the same cause of action there was a final judgment, and that such judgment exhausted and extinguished the rights of the parties to this cause. The facts out of which this question arises are as follows: On July 16, 1920, said decedent, H. E. Stewart, while employed as superintendent of railroad construction for appellants, was injured. On March 10, 1921, H. E. Stewart brought suit against the appellants for said injury upon the ground that it had been caused by the wrongful act of appellants. While this suit was pending, and on July 14, 1921, said Stewart died. The suit he had brought was thereupon revived under section 2093, Code of 1906 (Hemingway's Code, § 1760), in the name of his widow, appellee Mrs. Pauline Stewart, as executrix. That cause proceeded to trial, resulting in a judgment for the plaintiff in the sum of $7,500. The wrongful act of appellants upon which that action was based and upon, which recovery was had, namely, the injury to said decedent from which he died, is the basis of the present action. In the first action appellee, Mrs. Pauline Stewart, as executrix, sought to recover for the injury done said decedent, and for which he had sued in his lifetime, which suit after his death was revived in her name as executrix. In the present action appellees, the widow and children of said decedent, sought to recover for the injury they had suffered on account of the wrongful death of said decedent. The question is whether or not under Appeal from Circuit Court, Pearl River section 721, Code of 1906, as amended by County; J. Q. Langston, Judge. Suit by Mrs. Pauline Stewart and others against Edward Hines Yellow Pine Trustees. Judgment for plaintiffs, and defendants appeal. Reversed and rendered. T. J. Wills, of Hattiesburg, H. C. Holden, of Jackson, and Davis & Wallace, of Purvis, for appellants. Parker & Shivers, of Poplarville, and J. W. Cassedy, of Brookhaven, for appellees. chapter 214, Laws of 1914 (Hemingway's Code, § 501), there can be two such recoveries. Appellants' contention is that since the amendment of said statute authorizing the personal representative of the decedent to sue for the injury done the latter as well as that suffered by the beneficiaries designated by the statute there can be but one suit in which all damages to any and all interested parties must be included. On the other hand, appellees contend that, notwithstanding said amendment, where, as in this case, the decedent sues for the injury to him, and then dies, and his suit is revived in the name of his personal representative, the latter may, without bringing in by amendment or otherwise the damages suffered by the beneficiaries under the statute, prosecute such action to final judgment, recovering alone for the injury to the decedent. ANDERSON, J. Appellee, Mrs. Pauline Stewart, for herself and on behalf of her four minor children, the other appellees, sued appellants, Edward Hines Yellow Pine Trustees, in the circuit court of Pearl river county for damages suffered by appellees on account of the alleged wrongful death at the hands of appellant of H. E. Stewart, the husband and father of the appellees, and recovered a judgment in the sum of $15,000, from which appellants prosecute this appeal. Appellants' position is sustained by the We shall discuss only one assignment of federal courts, including the Supreme Court error, the refusal of appellants' request for of the United States, in construing the feda directed verdict, for the conclusion we eral Employers' Liability Act (chapter 149, § reach on that question disposes of the whole 1, 35 Stat. 65; chapter 143, § 1, 36 Stat. 291; The basis of this assignment of error U. S. Comp. Stat. 1918, §§ 8657 to 8665, incluFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes case. |