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guage at the conclusion of each of the said | pealed to the circuit court. From Judg-
classes, “And subject thereto in order of ments dismissing appeals and ordering pro-
priority," means that each class stated in cedendo, he appeals. Reversed and
said order is to be given priority over those manded.
classes following in numerical order, and that

Mitchell & Clayton, of Tupelo, for appel-
the note attached to class 2 is controlling. lant.
[4] The question as to the measure of dam-

E. C. Sharp, Asst. Atty. en., for the ages which appellant may be entitled to re

State. cover, seems simple of solution. In fact, there is little, if any, controversy between the parties as to this proposition. Appellants

ANDERSON, J. Appellant, Vardie Canin order to recover for the loss suffered were

non, was tried and convicted before a Justice not required to go into market and supply of the peace of Itawamba county of several themselves with the coal which appellee had misdemeanors for which he was fined and failed to ship them, but had the right to

sentenced to imprisonment. From these treat the contract as breached by appellee, judgments he appealed to the circuit court and the measure of their damages is the dif- of that county, which court dismissed said ference between the contract price of the appeals and ordered procedendo in each of coal and the market price at the time and said cases, from which judgments appellant place of delivery. Eaves & Co. v. Harris, 95

prosecutes this appeal. Miss. 607, 49 South. 258; Sussman, Warm

The proceedings in all of these cases are ser & Co. v. Seafood Co., 127 Miss. 420, 90 embodied in one record, and in view of the South. 116; 24 R. O. L. § 335.

fact that the propriety of the action of the The record with reference to the damages

circuit court in dismissing said appeals deappellants may be entitled to recover is inpends in each case upon exactly the same such state of uncertainty that we think the state of facts, all the appeals will be discase should go back to the chancery court to posed of in one opinion. ascertain what damages, if any, appellants circuit court erred in dismissing said ap

The only question is whether or not the
suffered.
Reversed and remanded.

peals. The Assistant Attorney General in
his brief states the facts as strongly for the
state as the record will justify. His state-
ment is as follows:

“The circuit court began the call of the crim-
CANNON V. STATE. (No. 24254.)

inal docket at 8:30 a. m. by the judge's watch.

When these cases were called, neither the ap(Supreme Court of Mississippi, Division A. pellant nor his attorney answered, and the apMay 23, 1924.)

peals were dismissed. Before the sounding of

the docket had been concluded, appellant's at. (Syllabus by the Court.)

torneys appeared, and within five minutes thereCriminal law O 260(8)-Dismissal of appeal after appellant appeared in person. It is not

to circuit court on failure of defendant and exactly clear whether appellant arrived before his attorney to appear and refusal of motion the court concluded the call of the docket or to reinstate held error.

not, but such is the impression gained by a Where a defendant was convicted of a mig- 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 mo

had been called for trial before a motion to and appealed to the circuit court, where the tion being presented at 9:05 a. m., exactly 35 law provides for a trial de novo, it was error to 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 such absence was not the result of neglect or

was correct for each swears by his own, but willfulness on their part, and both appeared in will assume that the timepiece of the judge

was right." court only a few minutes after such dismissal and entered said motion to reinstate,

For reversal appellant relies on Morris v.

City of Tupelo, 129 Miss. 887, 93 South. 433. Appeal from Circuit Court, Itawamba

We are op opinion that the Morris Case is County; O. P. Long, Judge.

controlling in favor of appellant's contenVardie Cannon was convicted before a tion. justice of the peace of misdemeanors and ap Reversed and remanded.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(100 So.)

fessed to the killing, stating that she struck WALKER et al. v. STATE, (No. 23967.) the child two blows on the head with a ham

mer which caused its death. This confes. (Supreme Court of Mississippi, Division A. May 19, 1924.)

sion was introduced over her objection, at

the trial. (Syllabus by the Court.)

(1) At the grave of the dead infant, while 1. Criminal law 419, 420(8)–Testimony as the sheriff and other officers were examinto statement by defendant's sister out of doing the body to ascertain the cause of death, tendant's presence held inadmissible.

Lizzie Stubbs, sister of Virginia, was quesa Testimony as to statement by defendant's tioned in the presence of the officers and the sister that defendant had told her that she crowd of white people there assembled, and had committed the crime, not made in defend- / she stated that on the day the child died ant's presence, held inadmissible.

she went to a neighbor's house to get some 2. Criminal law com 1169 (1)-Testimony as to milk, and when she returned home to the statement by defendant's sister as to defend- house where she and her sister Virginia ant's statement to sister in defendant's ab- were living, Virginia told her that she (Virsence held prejudicial.

ginia) had killed the baby because it was goIn prosecution for murder, testimony as to ing to die anyway; and that the hammer statement made by defendant's sister, in de- had blood on it when she (Lizzie) found it fendant's absence, as to statement made by de- in the back of the house that day That fendant to sister, corroborative of defendant's statement made by Lizzie at the grave was confession introduced over defendant's objection, and other facts showing defendant's guilt, not in the presence of Virginia Stubbs, who held prejudicial.

was then in jail.

[2] This statement of Lizzie was exceed.' 3. Criminal law e 419, 420(1)—Hearsay evl- ingly damaging to Virginia, because it was dence held inadmissible.

corroborative of Virginia's confession, and In prosecution for murder of baby, officer's also corroborated and supported other facts testimony as to statements made in absence of defendant that defendant wanted to kill baby and circumstances showing her guilt, with

reference to the hammer and the blows on held inadmissible, being hearsay.

the head of the dead infant. Appeal from Circuit Court, Simpson Coun The sheriff, over the objection of the apty; W. L. Cranford, Judge.

pellants, was permitted by the court to tell

the jury everything that Lizzie had said at Enoch Walker and Virginia Stubbs were convicted of murder, and they appeal. Re the grave incriminating Virginia as the mur

deress of the infant. The court also permitversed, Enoch Walker discharged, and case against defendant Virginia Stubbs remanded ted the sheriff to testify as to what Lizzie for new trial.

at the grave, and Virginia in jail, both had

said, not in Enoch's presence, as to the conE. L Dent, of Collins, and A. W. Dent, of nection the appellant Enoch Walker had Mendenball, for appellants.

with the killing of the infant; the witnessF. S. Harmon, Asst. Atty. Gen., for the es testified that Lizzie said that Virginia State.

said, etc.

[3] There is absolutely no testimony in HOLDEN, J. The appellants, Enoch this record ipcriminating Enoch Walker, exWalker and Virginia Stubbs, were convicted cept the hearsay testimony of the officers of the murder of a 10 days' old infant of who testified they heard Virginia say, and Virginia Stubbs, and were sentenced to the that Lizzie said Virginia said, that Enoch penitentiary for life. We shall only state Walker wanted to do away with the baby enough of the facts to understand the deci- because it was too white. These statements sion upon appeal.

by Virginia and Lizzie were not even made The young infant of the appellant Virginia in the presence and positive hearing of Stubbs died and was buried on the place oc- Enoch Walker, nor in court at the trial, and cupied by the appellants. Enoch Walker of course was not competent testimony to lived in the house with Virginia Stubbs and establish his guilt. So, appellant Enoch her sister Lizzie. None of the parties were Walker must necessarily be discharged unmarried, but the two women, Virginia and der the proof in this case. Lizzie Stubbs, bad a number of bastard chil Several grounds are urged for reversal as dren each. After the dead infant had been to the conviction of Virginia, and many of buried about 40 days, the body was disin- them are indeed serious; but we shall notice terred by the officers of the county, and it only one, which will result in a reversal, and Was discovered that the child had died from the others may not arise on a new trial. 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-l of guilt by Virginia, when Virginia was not For other cases see same topic and KEY-NUMBER 10 all Key-Numbered Digests and Indexes

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present when the statement was made by Whittington & Bradford, of Greenwood, Lizzie at the grave, but was then incarcer- for appellees. ated in jail. This testimony was clearly inadmissible, pure hearsay, and was very in

SYKES, P. J. The appellant, Starling, jurious to the rights of Virginia Stubbs in trustee, sued appellees (defendants) in the the trial of her case, and for this error a circuit court of Leflore county upon the fol, new trial must be granted her.

lowing judgment rendered in Issaquena The appellants did not take the stand in

county: their own behalf at the trial. Lizzie testified that she had been whipped and made to "State of Mississippi, County of Issaquena. tell the story against Virginia, and that it “Henry Starling, Trustee, v. J. L. Haley, Jr., was false. Therefore her statement at the

et al. No. 568. grave that Virginia had told her that she

"We agree that in the replevin case pending killed the baby with a hammer, because in the circuit court of Issaquena county, she thought it was not going to live anyway, Miss., a judgment shall be rendered in favor was hearsay testimony when given by the of the plaintiff against the defendants and the officers at the trial. The testimony of the sureties upon the replevin bond for the sum

of $2.500.00. sheriff, a man of high standing, before the jury, as to this statement made by Lizzie

"Said judgment to be as follows: against Virginia at the grave of the infant, this case, it is ordered and adjudged that the

"By consent of plaintiff and defendants in being very damaging in its nature, we are plaintiff, Henry Starling, Trustee, shall have not prepared to say that without it there of and recover from J. H. Sorrell, defendants, would have been a conviction of Virginia, and H. B. Harper and Lucile Richburg, suresince there are a number of other doubtful ties upon the replevin bond, the sum of $2,500 propositions appearing in the case, which and all costs herein expended; said judgment are unnecessary for us to mention at this to bear 6 per cent. interest from March 6, time.

1922. Therefore the judgment of the lower court issue against this judgment prior to December

“It is further agreed that no execution shall is reversed, the appellant Enoch Walker dis

1, 1922, charged, and the case against Virginia

"It is further agreed that this judgment Stubbs is remanded for a new trial,

shall constitute no lien upon the property, real Reversed, Enoch Walker discharged, and or personal, of J. L. Haley or J. L. Haley, Jr., the case against Virginia Stubbs remanded | known as the Smedes property located near for a new trial.

Smedes Station, Sharkey county, Miss.

"This judgment shall be enrolled only in Issaquena county.

"Ordered, adjudged and decreed, this 6th day STARLING v. SORRELL et al. (No. 23980.) of March, 1922,

"It is agreed that this judgment shall be (Supreme Court of Mississippi, Division B. entered the first day of the circuit court of May 12, 1924.)

Issaquena county, Miss.

"Witness our signatures, this 28th day of (Syllabus by the Court.)

February, 1922, Percy & Percy, Attorneys, 1. Judgment Cm87—When consent judgment

"J. L. Haley." in replevin is void on face.

A consent judgment in a replevin suit is This judgment was duly enrolled in Issa. not void upon its face unless it show either, quena county. (1) want of jurisdiction over the subject-mat Demurrers were filed by the defendants al. ter, (2) want of jurisdiction over the parties leging that this judgment is void. The causto the action or some of them, or (3) want of

es assigned are, first, because the judgment power to grant the relief contained in the judg- does not provide for the alternative return of ment.

the property in accordance with the statute 2. Judgment Om87-Consent judgment in re- relating to a judgment in replevin; that the

plevin held not void on face as to sureties; declaration fails to make exhibits a certified judgment not void on face because not in copy of the entire record; that the sureties alternative.

on the replevin bond are not shown to have The judgment in this case examined, and

agreed to this judgment. held not to show any such want of jurisdiction

These demurrers were sustained, plaintiff and is not void upon its face.

declined to amend, and judgment final was Appeal from Circuit Court, Leflore County; entered in favor of the defendants. From S. F. Davis, Judge.

which judgment this appeal is prosecuted.

The sole question here presented is whethSuit by Henry Starling, trustee, against er or not this agreed or consent judgment is J. H. Sorrell and others. Judgment for de void upon its face. fendants, and plaintiff appeals. Reverser]

It is the contention of the appellees that and remanded.

the judgment is void, and this fact is shown R. C. McBee, of Greenwood, for appellant. upon its face, because it does not affirmative

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(100 So.) Is appear from the judgment that all parties, body their agreement, to have objected then including the sureties on the replevin bond, and there. appeared and consented to its rendition; nei. The presumption that a judgment is corther does the authority of J. L. Haley to sign rect exists wherever there is a possible state this agreement for the benefit of all parties of facts which would justify the judgment. afirmatively appear.

Duncan v. McNeill, 31 Miss. 704; Henderson In legal effect there is no difference be- v. Winchester, 31 Miss. 290; Cannon v. Cooptween a consent judgment and a judgment er, 39 Miss. 784, 80 Am. Dec. 101. entered after a trial. The one is as legal and The judgment is not void against the surebinding as the other when the court which ties on the replevin bond. By signing the rendered it bas jurisdiction.

bond 'they became responsible and liable to “Ang judgment entered by consent where the satisfy any valid judgment rendered against court has full jurisdiction is as efficacious as

the principal. though it had been entered after a trial of the One who becomes surety on a replevin issues, and is binding and conclusive between bond thereby becomes a joint debtor with the the parties and their privies, unless procured principal obligor, and ordinarily his undertakby fraud.” 11 Enc. Pl. & Pr. p. 1028.

ing extends to all proceedings and adjudica

tions in the same action through every court It is apparent from an examination of the to which it may be carried by appeal in case Judgment in this case that there was a writ- the party giving the undertaking is finally deten agreement entered into on the part of feated." 34 Cyc. p. 1582. Percy & Percy, attorneys, and J. L. Haley, "The general rule as to the conclusiveness that a consent judgment should be entered upon the surety on a bond given in the course the first day of the circuit court of Issaquena principal, applies to a surety upon a replevin

of legal proceedings, of a judgment against the county, evidently after the agreement was bond, and he is conclusively bound by the judgconsummated. This agreement does not ment against the principal as to all matters show the authority of Haley. It is also ap- which were, or might have been, litigated in parent that it was only the intention of the the main action, although he was not served parties to this agreement that the form of with process and did not appear and defend, the judgment embodied therein should only and the surety cannot question the judgment be entered by the clerk as the judgment, and upon any other ground than fraud or mis

take,” etc. 34 Cyc. 1585, 1586. not for the entire agreement to be entered as the judgment. The judgment was entered in To the same effect is Freeman on Judgopen court. It is to be presumed that the de- ments (4th Ed.) $ 180. fendants were in court and that they knew

The sureties on the replevin bond were in and consented to the judgment. This is pre-court subject to the orders and judgments of sumed from their silence.

the court to the same extent as were the prin[1] Section 116, Freeman on Judgments cipal obligors in the bond. (4th Ed.), states the rule about void judg While the statute provides that the judgments as follows:

ment should be in the alternative for the re"If a judgment is void, it must be from one turn of the property, yet the omission from or more of the following causes: (1) Want the judgment of a provision for its return of jurisdiction over the subject-matter; (2) does not render the judgment void but only want of jurisdiction over the parties to the makes it irregular. It is within the power of action, or some of them; or (3) want of pow the defendant to waive this provision and er to grant the relief contained in the judgment. In pronouncing judgments of the first agree only to the rendition of a money judg. and second classes, the court acts without ju- ment. Where a consent judgment is entered risdiction, while in those of the third class it only for an amount of money, it will be conacts in excess of jurisdiction. If the want of clusively presumed that the defendant by jurisdiction over either the subject-matter or consent thereto waived his right to the al. the person appears by the record, or by any ternative return of the property. other admissible evidence, there is no doubt that the judgment is voíd.”

"The mere fact, however, that there is no

judgment for a return of the property nor for [2] Testing the judgment by this rule, it is its value if a return cannot be had, does not

render the judgment void or subject to colapparent that the court had jurisdiction over lateral attack, for defendant may have waived the parties, over the subject-matter, and had the right to a return of the property." 34 the power to grant the relief or enter the Cyc. 1546, 1547. judgment.

The agreement shows' what the consent The judgment in this case is not void upon Judgment is to be, and those parts of this its face, and the demurrers should have been agreement both before and after the consent overruled. Judgment are really surplusage. Whether The judgment of the lower court is reHaley had or had not authority to make this versed, the demurrers of the defendants are agreement, the judgment was entered in open overruled, and the cause is remanded, with court, the defendants were in court, and it leave to the defendants to plead. was their duty, if the judgment did not em

Reversed and remanded.

is that the questions involved are res judi. EDWARD HINES YELLOW PINE TRUS- cata; that in a former suit between the same

TEES V. STEWART et al. (No. 23739.) * parties or privies involving the same cause (Supreme Court of Mississippi. May 12, 1924.) of action there was a final judgment, and

that such judgment exhausted and extin(Syllabus by the Court.)

guished the rights of the parties to this Judgment 688—Judgment in action for In- cause. The facts out of which this question

juries revived in name of wife as executrix arises are as follows: On July 16, 1920, said held res judicata in her subsequent action for decedent, H. E. Stewart, while employed as damages sustained by herself and children. superintendent of railroad construction for

A servant sued his master for damages for appellants, was injured. On March 10, 1921, personal injuries caused by the wrongful act | H. E. Stewart brought suit against the apof the master, and while the suit was pending pellants for said injury upon the ground the plaintiff died from such injuries, leaving a wife and children. The wife, as his executrix, that it had been caused by the wrongful act had said cause revived in her name as such ex- of appellants. While this suit was pending, ecutrix under section 2093, Code of 1906 (sec- and on July 14, 1921, said Stewart died. tion 1760, Hemingway's Code), and recovered The suit he had brought was thereupon retherein a judgment against the defendant for vived under section 2093, Code of 1906 (Hemthe injuries suffered by the decedent. The ex. ingway's Code, $ 1760), in the name of his ecutrix then brought another suit on behalf widow, appellee Mrs. Pauline Stewart, as of herself and children under section 721, Code

executrix. of 1906, as amended by chapter 214, Laws, of

That cause proceeded to trial, 1914. (Hemingway's Code, $ 501), to recover for resulting in a judgment for the plaintiff in the injuries suffered by them on account of the sum of $7,500. The wrongful act of apthe death of said đecedent. Held, that under pellants upon which that action was based Baid latter statute giving the wife and chil- and upon, which recovery was had, namely, dren the right to recover for the injuries suf- the injury to said decedent from which he fered by them on account of the death of the died, is the basis of the present action. In said decedent, as well as the injuries suffered the first action appellee, Mrs. Pauline Stewby him in his lifetime, and authorizing either art, as executrix, sought to recover for the the wife and children or the personal representative of the decedent to sue for and re- injury done said decedent, and for which he cover for such injuries, and providing that there had sued in his lifetime, which suit after his shall be but one suit for the same death, the death was revived in her name as executrix. judgment in the former suit was res judicata of In the present action appellees, the widow the issues involved in the latter suit.

and children of said decedent, sought to reEthridge, J., dissenting.

cover for the injury they had suffered on ac.

count of the wrongful death of said deceIn Banc.

dent. 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.

chapter 214, Laws of 1914 (Hemingway's Suit by Mrs. Pauline Stewart and others Code, s 501), there can be two such recovagainst Edward Hines Yellow Pine Trustees. eries. Judgment for plaintiffs, and defendants api Appellants' contention is that since the peal. Reversed and rendered.

amendment of said statute authorizing the T. J. Wills, of Hattiesburg, H. C. Holden, personal representative of the decedent to of Jackson, and Davis & Wallace, of Purvis, sue for the injury done the latter as well for appellants.

as that suffered by the beneficiaries desigParker & Shivers, of Poplarville, and J. nated by the statute there can be but one W. Cassedy, of Brookhaven, for appellees. suit in which all damages to any and all in

terested parties must be included. On the ANDERSON, J. Appellee, Mrs. Pauline other hand, appellees contend that, notwith. Stewart, for herself and on behalf of her standing said amendment, where, as in this four minor children, the other appellees, case, the decedent sues for the injury to sued appellants, Edward Hines Yellow Pine him, and then dies, and his suit is revived in Trustees, in the circuit court of Pearl river the name of his personal representative, the county for damages suffered by appellees latter may, without bringing in by amendon account of the alleged wrongful death at ment or otherwise the damages suffered by the hands of appellant of H. E. Stewart, the the beneficiaries under the statute, prose husband and father of the appellees, and cute such action to final judgment, recoverrecovered a judgment in the sum of $15,000, ing alone for the injury to the decedent. 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 ; case. The basis of this assignment of error U. S. Comp. Stat. 1918, SS 8057 to 8665, incluem For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Suggestion of error overruled June 16, 1924.

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