Armstrong v. Minkus

CourtMississippi Supreme Court
Writing for the CourtMAYES, J.
Citation93 Miss. 621,47 So. 467
PartiesWILLIAM H. ARMSTRONG v. LEO MINKUS
Decision Date09 November 1908

47 So. 467

93 Miss. 621

WILLIAM H. ARMSTRONG
v.

LEO MINKUS

Supreme Court of Mississippi

November 9, 1908


October, 1908

FROM the circuit court of Lee county, HON. EUGENE O. SYKES, Judge.

Mrs. Minkus, appellee, was plaintiff in the court below; Armstrong, appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court.

Appellee recovered a judgment against appellant in the state of Tennessee for money lost by her husband in dealing with appellant in "future" transactions. She brought a suit on this judgment in the circuit court of Lee county, Miss. On the trial of the case, that court overruled a demurrer to the defendant's plea in bar. On appeal the supreme court affirmed the judgment of the circuit court, because Code 1906, § 2303, authorizing the wife or children of one paying money on a "future" transaction to recover it, was not operative when the suit was begun. See Minkus v. Armstrong, 90 Miss. 751, 44 So. 32, 12 L. R. A. (N. S.) 873. The decision of the supreme court, however, was without prejudice to the right of Mrs. Minkus to bring another suit, and she brought the present action.

Affirmed.

Anderson & Long for appellant.

Every question involved in this case is res adjudicata, except one, and that is whether under Code 1906, § 2303, the wife is entitled to recover the gambling losses of her husband.

Code 1906, § 2303 was passed and went into effect after the transactions between the husband of Mrs. Minkus and Armstrong, in the state of Tennessee; and after she had brought suit in that state and recovered judgment. At the time those transactions took place, and at the time of the recovery of the judgment in Tennessee, as well as at the time the first suit was brought on the judgment in this state, there was no law in this state authorizing either Minkus or his wife to recover his gambling losses. Is it competent for the legislature to pass a law, after the act, authorizing such a recovery? Such a statute is condemned by sec. 16 of our constitution, and sec. 10 of art. 1 of the constitution of the United States, prohibiting the passage of ex post facto laws.

At the time of the gambling transactions between Minkus and Armstrong, the Tennessee statutes, as well as the statutes of Mississippi, condemned such transactions as criminal; and the Tennessee statute went further and authorized the recovery, under certain circumstances of the money lost, by the loser, his wife and others; while the Mississippi statute did not authorize such recovery. Section 2303 of the Code, subsequently added an additional penalty to that imposed for the criminal offense, by authorizing the wife to recover the losses. Certainly the right given the wife by section 2303 of our code is the imposition of an additional penalty. It is a penal statute. Before the passage of such statute, the wife had neither a legal nor equitable claim to the losses.

An ex post facto law is one, which in its operation, makes that criminal or penal, which was not so at the time the act was committed, or which increases the punishment, or in short, which in relation to the offense or its consequences, alters the situation of the party to his disadvantage." 12 Am. & Eng. Ency. of Law (2d ed.) 525 and notes.

"It is well settled that the phrase 'ex post facto' as used in the constitution of the United States and the constitutions of several states, applies only to penal and criminal statutes which impose punishment or forfeitures, and not to such civil statutes as affect...

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1 practice notes
  • Jones v. McCormick, 25895
    • United States
    • United States State Supreme Court of Mississippi
    • December 13, 1926
    ...States supreme court. Wright v. Weisinger & Co., 5 S. & M. 210 13 Miss. 210; Miller v. Ewing, 8 S. & M. 16 Miss. 421; Armstrong v. Minkus, 93 Miss. 621, 47 So. 467. This Arkansas court had jurisdiction of the subject-matter and of the person, this being admitted. Did the state of Arkansas r......
1 cases
  • Jones v. McCormick, 25895
    • United States
    • United States State Supreme Court of Mississippi
    • December 13, 1926
    ...States supreme court. Wright v. Weisinger & Co., 5 S. & M. 210 13 Miss. 210; Miller v. Ewing, 8 S. & M. 16 Miss. 421; Armstrong v. Minkus, 93 Miss. 621, 47 So. 467. This Arkansas court had jurisdiction of the subject-matter and of the person, this being admitted. Did the state of Arkansas r......

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