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(100 So.) The appellant failed to give the appellee, to quit shall be necessary only where the notice on or before the 1st day of November, term is not to expire at a fixed time.” 1923, but let that date pass without such It is the contention of the appellant that notice of renewal, but a letter was posted on this section is not applicable to the present November 6, 1923, addressed to the appellee, case, and that the lease contract did not exgiving notice of their intention to renew. pire at a fixed time, and the fact that the The manager of appellant says that he thinks tenant remained in possession for eight days he wrote the notice on the night of the 2d after November 1st before proceedings were of November, and thinks he mailed the letter instituted, was a holding over for another that night. He also testified that at the annual term. The appellant also contended time of writing such notice he had knowl- that the contract gives the right of an exedge that suit was going to be filed before he tension of lease as distinguished from a resent such letter. On the 8th day of Novem- newal of lease, and that the case of Crenber, 1923, the appellee, Mrs. Johnson, made shaw-Gary Lumber Co. v. Norton, 111 Miss. affidavit before a justice of the peace “that 720, 72 South. 140, L. R. A. 1916E, 1227, is the Copiah Hardware Company, tenant, after authority for that position. In that case the the expiration of its term and without per- court discussed the principles of the necesmission of this affiant, owner, and lessor, sity of notice in the one case and the absence holds and refuses to deliver possession of the of the necessity of such notice in the other, following described premises." The appel- and held in the case before it then, taking lant filed the following plea or answer to all of the facts into consideration, that the such proceeding before the justice of the notice was not necessary. The case, however, peace:

announces the rule to be that, if it is a re

newal contract, notice must be given of the “Now comes the Copiah Hardware Company, intention to renew before the expiration of defendant, and in answer to the affidavit of the term or while the term of the lease is Mrs. Serena Johnson denies that it is holding said premises over after the expiration of their still in force, but in the case where the op term, but asserts that it is holding said prem- tion is for the extension of the lease that ises under a legal and valid contract and the such notice need not be given, but the tenright of renewal and extension thereunder, allant may continue in possession, and the fact of which have been construed and upheld by of possession will evidence its intention to the Supreme Court of the state of Mississippi." exercise the option of extension.

The contract before us gives the lessee the The case referred to in which the con- right and privilege, or their assigns the right tract was construed is Copiah Hardware Co. and privilege, "to renew this lease for one v. Johnson, 123 Miss. 624, 86 South. 369, in year at a time.” The option given is to rewhich decision the court held that the origi- new the lease. It is not a lease for a term nal lease was a valid contract, and that un

with right to hold over as long as the party der it the appellant had a right to renew may desire, or for a stated period, but is a the lease by giving the proper notice for one right to renew the lease for one year at a year at a time as long as they might desire

time. The original lease was for one year to do so. The appellee proceeded under the from the 1st of November, 1917. Consequentprovisions of section 2383, Hemingway's Code ly the lease expired November 1, 1918, and (section 2885, Code of 1906), the pertinent the new lease began on that date under the part of which reads as follows:

letter above quoted giving notice to that ef

fect prior to the 1st day of November, 1918. “A tenant or lessee at will or at sufferance, The letters subsequent to November 1, 1918, or for part of a year, or for one or more stipulate the beginning and ending of the years, of any houses, lands, or tenements, and term. Consequently each term began and endthe assigns, under-tenants, or legal representa, ed at specified dates. Consequently, under tives of such tenant or lessee, may be removed the terms of section 2380, Hemingway's Code from the premises by any justice of the peace of the county, or by the mayor or police jus- | (section 2882, Code of 1906), no notice to quit tice of any city, town, or village where the or vacate was necessary, and the lessor had premises, or some part thereof, are situated, the option to treat the tenant as a trespasser in the following cases, to-wit:

after that date. The views here expressed "First.-Where such tenant shall hold over find support in McClintock v. Joyner, 17 Miss. and continue in possession of the demised 678, 27 South. 837, 78 Am. St. Rep. 541. The premises, or any part thereof, after the ex- circuit court granted a peremptory instrucpiration of his term, without the permission tion for the appellee, and entered judginent of the landlord,” etc.

thereon in favor of the appellee, which judg

ment is in accordance with the views herein Section 2380, Hemingway's Code (section expressed and must be affirmed. 2882, Code of 1906), provides that “notice Affirmed.

100 SO.-3

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L. A. PACE V. STATE. (No. 23716.)* (Supreme Court of Mississippi, Division A. Ezra BONDS v. STATE. (No. 24082.) May 19, 1924.)

(Supreme Court of Mississippi, Division A. Appeal from Circuit Court, Lamar County;

May 19, 1924.) G. Wood Magee, Special Judge.

Appeal from Circuit Court, Tishomingo CounD. M. Watkins, of Hattiesburg, for appel- ty; C. P. Long, Judge. lant. E. C. Sharp, Asst. Atty. Gen., for the State:

T. A. Clark, of Iuka, for appellant.

E. C. Sharp, Asst. Atty. Gen., for the State. PER CURIAM. Affirmed.

PER CURIAM. Affirmed.

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Vertis BRYANT V. STATE. (No. 24005.) PER CURIAM. Affirmed. (Supreme Court of Mississippi, Division A.

May 19, 1924.) Appeal from Circuit Court, Second District, Robert BANKSTON V. CITY OF CLARKS. Jones County; R. S. Hall, Judge.

DALE. (No. 23960.) † F. H. Bush and M. W. Boyd, both of Laurel,

(Supreme Court of Mississippi, Division A. for appellant.

May 19, 1924.) E. C. Sharp, Asst. Atty. Gen., for the State.

Appeal from Circuit Court, Coahoma CounPER CURIAM. Affirmed

ty, Second District; W. A. Alcorn, Jr., Judge,

*Suggestion of error overruled June 9, 1924.

† Suggestion of error overruled August 28, 1924.

al.

(100 So.) Joo, W. Crisler, of Clarksdale, for appellant.

(156 La.) Brewer, Brewer & MeGebee, of Clarksdale,

No. 23195. for appellee.

HUNTER et al, v. CHICAGO LUMBER &

COAL CO. PER CURIAM. Affirmed.

(Supreme Court of Louisiana. June 5, 1922. On Rehearing by Whole Court,

April 28, 1924.) James HOPGOOD Y. STATE. (No. 24058.)*

(Syllabus by Editorial Staff.)

1. Corporations Cw377 (2)—Identity of cor(Supreme Court of Mississippi, Division A. May 19, 1924.)

poration not destroyed because another cor

poration holds controlling stock. Appeal from Circuit Court, Harrison County; in another does not destroy identity of latter.

That one corporation owns controlling stock D. M. Grabam, Judge. Mize & Mize, of Gulfport, for appellant.

2. Corporations Oum 178–Stock holder becoming

creditor of corporation or paying its debts E. C. Sharp, Asst. Atty. Gen., for the State.

has same rights as other creditors.

Stockholder who becomes creditor of corPER CURIAM. Affirmed.

poration has same rights as other creditors, and if he pays corporation's debt in excess of liability as stockholder, he has same rights and remedies for recovering amount that other

creditors have. Sid JONES and Ed Hughes v. STATE. (No. 24207.)

3. Judgment Om 878(2)-One paying judgment

against another may take assignment there. (Supreme Court of Mississippi, Division A. of in name of third party, May 19, 1924.)

Where judgment has been rendered against

two corporations in solido, it is not improper Appeal from Circuit Court, Prentiss County; for corporation interested in one of debtor corC. P. Long, Judge.

porations to take assignment of judgment on J. E. Friday, of Booneville, for appellants. paying it in name of third party instead of in E. C. Sharp, Asst. Atty. Gen., for the State. its own name.

4. Judgment Ow878(2)Judgment debtor held PER CURIAM. Affirmed.

not entitled to have judgment in solido against another deolared paid because of simulation,

Where personal injury judgment was ren

dered in solido against railroad company and B. E. HATHORN v. STATE. (No. 24244.) lun er company using railroad company's

track under indemnity agreement, and creditor (Supreme Court of Mississippi, Division A.

of lumber company paid judgment taking asMay 19, 1924.)

signment in name of another, suit would not

lie by railroad company to have judgment deAppeal from Circuit Court, Union County; clared paid, it not having been injured by purThos. E. Pegram, Judge.

chase of judgment or its assignment, in view Chas. Lee Crum, of New Albany, for appel- of Rev. Civ. Code, art. 1978. lant.

Rogers, Land, and Leche, JJ., dissenting. Harry M. Bryan, Asst. Atty. Gen., for the State.

Appeal from Third Judicial District Court,

Parish of Claiborne; J. E. Reynolds, Judge. PER CURIAM. Affirmed.

Suit by G. W. Hunter, receiver of the Louisiana & Northwest Railroad, and others, against the Chicago Lumber & Coal Company

and another. Judgment for plaintiffs, and Ben WILLIAMSON V. STATE. (No. 23633.) defendant named appeals. Judgment annul

led and suit dismissed on rehearing. (Supreme Court of Mississippi, Division A. May 19, 1924.)

Roberts & Roberts, of Minden, and Hall,

Monroe & Lemann, of New Orleans, for apAppeal from Circuit Court, Itawamba Coun- pellant. ty; C. P. Long, Judge.

Stubbs, Theus, Grisham & Thompson, of Geo. T. Mitchell and Chas. S. Mitchell, both Monroe, for appellees. of Tupelo, for appellant.

By the WHOLE COURT.
J. A. Cunningham, of Booneville, and F. S.
Harmon, Asst. Atty. Gen., for the State.

LAND, J. During the year 1907 W. Tur. PER CURIAM. Affirmed.

ner Bailey, who was an employee of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Suggestion of error overruled June 9, 1924.

Louisiana & Northwest Railroad Company, Petitioner alleges that the acts of the said was injured by the train of the Athens Lum- Chicagó Lumber & Coal Company, the ber Company, which it was operating over Athens Lumber Company, the National Bank the line of said railroad company, under a of Commerce, and Fred D. Whiting was a contract by the terms of which the said fraudulent simulation entered into by all of Athens Lumber Company obligated and said parties to shield and protect the said bound itself to be responsible for all damages Athens Lumber Company and its property that may occur in consequence of its op from paying the judgment for which it erating its locomotives or trains over the was responsible, and thereby force the Louitracks of said railroad company.

siana & Northwest Railroad Company to pay Bailey instituted suit against the railroad same. company and the Athens Lumber Company Petitioner alleges that the Chicago Lumber for said injuries received by him, and prayed & Coal Company allowed said assignment to for judgment in solido against both defend- Whiting to remain in his name until the ants for the sum of $10,000. A judgment said Chicago Lumber & Coal Company and was rendered in Bailey's favor in the lower the Athens Lumber Company could discourt against both defendants in solido for pose of all the Athens Lumber Company's the sum of $3,500 with costs, and was af- property of every kind and nature, and disfirmed by this court on appeal. See Bailey solve its corporate capacity, the Chicago V. La. & Northwest R. R. Co. et al., 129 La. Lumber & Coal Company receiving the bene1029, 57 South. 325.

fits of the proceeds of said Athens Lumber The receiver of said railroad company, al. Company's property and assets well knowing leging in his petition that said judgment has that the Louisiana & Northwest · Railroad been paid by the Athens Lumber Company, Company was making every effort to locate the same being a debt of the Athens Lumber and prove the payment of this Bailey judgCompany, for which under its contract it ment, and that they knew that it instituted alone is responsible as between the railroad a suit against the Athens Lumber Company company and itself, has instituted the press to declare this judgment the debt of the ent suit to have said judgment canceled, and Athens Lumber Company and to decree it removed from the records, as it operates as paid. Petitioner alleges that they also knew a judicial mortgage against the property of that the National Bank of Commerce and the railroad company.

Whiting refused as witnesses in said cause Petitioner alleges that the Athens Lumber to state anything connected with said assignCompany is a subsidiary of the Chicago ment of said judgment, or to give any stateLumber & Coal Company; that the officers ment of the entries on their bank books and stockholders of the latter company own wherein the payment or assignment appearand control a majority of the stock of the ed, and declined to give a statement of the said Athens Lumber Company; that said account of the Chicago Lumber & Coal Comcompanies entered into a fraudulent agree- pany with said bank. Petitioner alleges that ment to procure the National Bank of Com- they also knew that the lower court in said merce, of Kansas City, Mo., to advance the suit of Louisiana & N. W.R. R. Co. v. Athens money and pay off the Bailey judgment Lumber Co., 134 La. 788, 64 South, 714, L against the railroad company and the Athens R. A. 1915B, 856, decreed that the Athens Lumber Company, and to take an assignment Lumber Company was responsible for the of said judgment in their name, and to hold Bailey judgment, and ordered them to pay the same until such time as the Chicago the court expenses, which the railroad had Lumber & Coal Company instructed them to incurred and paid in defending said Bailey. transfer the same to whomever they stated. Petitioner alleges that the Chicago LumPetitioner alleges that in order to carry out ber & Coal Company now claims that it is said fraudulent scheme the National Bank the owner by purchase and assignment of the of Commerce caused one Fred D. Whiting Bailey judgment, and that said claim of to take an assignment in his name, which ownership is a fraudulent simulation as was done for the benefit of said bank, in stated above. accordance with the fraudulent agreement Defendant company denies, of course, any between said Chicago Lumber & Coal Com- |fraudulent simulation, scheme, or agreement pany and the Athens Lumber Company. Pe of any sort; alleges its good faith in purtitioner alleges that the Chicago Lumber & chasing said judgment, and its subrogation Coal Company paid the said bank, and the by the said Bailey to his rights to enforce said amount paid was the proceeds of the the said judgment against either or both of Athens Lumber Company's output of its the parties thereto, precisely as the said mill plant, which the Chicago Lumber & Coal Bailey might have done. Defendant denies Company, its officers and stockholders owned that the amount which it paid to Bailey for and operated, and that for this judgment of the purchase of the said judgment was the Bailey they were both liable by virtue of proceeds of the Athens Lumber Company's said Chicago Lumber & Coal Company own- output of its mill plant, and defendant denies ing and controlling the Athens Lumber Com- that it owned or operated the Athens Lumpany.

ber Company or controlled the same, De

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(100 So.) fendant company prays that plaintiff's suit, was appointed liquidator for the Athens Lumagainst it be rejected at its costs, and that ber Company consisted of S. H. Fullerton, there be judgment recognizing the defend- president, Robert Fullerton, vice president, ant as the holder and owner of the original Frank Goebel, treasurer, and himself, Robt. judgment in favor of W. Turner Bailey W. Fullerton, secretary; that Robert Fulleragainst the Athens Lumber Company and the ton, Jr., had joined the army, and that witLouisiana & Northwest Railroad Company ness Robt. W. Fullerton, secretary of the in solido, subrogated to all of the rights of Chicago Lumber & Coal Company, was a son the said Bailey and entitled to enforce the of S. H. Fullerton, its president. The testisaid judgment precisely as he might have mony of this witness shows that at the time done.

he and Robbe took charge of the assets of The defendant the Chicago Lumber & the Athens Lumber Company no inventory Coal Company would have it appear to the was made; that the liquidators took possescourt that said company is and always has sion of all the assets of the Athens Lumber been a distinct and separate corporate en- Company and converted same into cash, tity from the Athens Lumber Company, amounting to $15,000; that the amount of and that the latter corporation was organized the claim of the Chicago Lumber & Coal Comin good faith, and operated by its officers and pany against the Athens Lumber Company stockholders as a distinct and separate cor was $75,000; that the moneys that came into poration, and that the only relation that the hands of the liquidators were paid out, has existed between defendant company and and that neither cash or assets of any kind the Athens Lumber Company has arisen in remained on hand, and that the liquidation the usual course of dealings between such was entirely closed. It shows that the liquicompanies, defendant company alleging that dation was conducted out of court, and that it is in the business of jobbing lumber, i. e., the stockholders of the Athens Lumber Comof purchasing the output of mills, advancing pany, composed of the witness Robt. W. Fulmoney thereon, and selling such output to lerton, E. J. Robbe, J. E. Kennedy, and J. other dealers in lumber, and that in this A. Cleaton, appointed Robt. W. Fullerton way defendant company established business and E. J. Robbe as liquidators, and the witconnections with the Athens Lumber Com- ness Robt. W. Fullerton did not pay for the pany, which became a debtor to the defend- stock in the Athens Lumber Company that ant company to a large amount.

stood in his name. The testimony of this While defendant company denies in its an- witness further shows that out of the assets swer that it has owned any stock at any time of the Athens Lumber Company, he first paid in the Athens Lumber Company, yet it admits the pay roll in full, and then paid the current in said answer that it is true that individuals bills, "and," to quote the language of the who hold stock in the Chicago Lumber & witness, "that left the Chicago Lumber & Coal Company also hold a majority of the Coal Company as the only remaining credistock in the Athens Lumber Company. But tor, and whatever then remained on hand I Robt. W. Fullerton, a stockholder, a member turned over to it (the Chicago Lumber & of the board of directors, and the secretary Coal Company).” of the Chicago Lumber & Coal Company, This witness is rather vague in some of places a very different aspect upon the rela- his answers. He states that the payroll tions existing between said company and the amounted to $2,000 or $3,000, and that the Athens Lumber Company in the testimony current bills were about the same. As he given by him and found in his depositions admits that the assets of the Athens Lumber filed in this suit. This witness states that company when converted into cash, realized he has served as the secretary of the Chicago about $15,000; then, deducting from this Lumber & Coal Company for the last 7 or sum the amount of the pay roll and the cur8 years; that the Athens Lumber Company rent bills, i. e., from $4,000 to $6,000, the was organized about 15 years ago; that at Chicago Lumber & Coal Company, defendant the time of his depositions the Athens Lum- in this case, received out of said assets a ber Company had been in liquidation for sum amounting to $9,000 at the least and to several years; that he was one of the liqui- $11,000 at the highest calculation. dators, and was appointed in October, 1913; The witness R. W. Fullerton, when recallthat the officers of the Athens Lumber Com. ed for direct examination, stated that the pany, at the time it went into liquidation, Chicago Lumber & Coal Company purchased consisted of R. 'W. Fullerton, president, J. the Bailey judgment because Bailey had T. Burlingame, vice president, E. J. Robbe, threatened to attach the property of the secretary, and Frank Goebel, treasurer; that Athens Lumber Company and the Athens E. J. Robbe, at the time he was appointed Lumber Company owed the Chicago Lumber liquidator of the Athens Lumber Company, & Coal Company money, and that it was was a stockholder, a director, and secretary natural that "we did not want any attachof said company, and auditor of the Chicago ment served on the property, because we Lumber & Coal Company; that the officers knew that there was not sufficient property of the Chicago Lumber & Coal Company to pay our debt as it stood.” J. W. Perry, at the time the witness Robt. W. Fullerton president of the National Bank of Commerce,

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