Calhoun County v. Cooner

• Decision Date: 22 October 1928
• Docket Number: 27334
• Citation: 118 So. 706,152 Miss. 100
• Court: Mississippi Supreme Court
• Parties: CALHOUN COUNTY v. COONER. [*]

118 So. 706

152 Miss. 100

CALHOUN COUNTY v. COONER. ^[*]

No. 27334

Supreme Court of Mississippi

October 22, 1928

Division B

Suggestion of Error Overruled Nov. 19, 1928.

APPEAL from circuit court of Calhoun county, HON. T. E. PEGRAM Judge.

Suit by S. C. Cooner against Calhoun County. Judgment for plaintiff and defendant appeals. Affirmed.

Judgment affirmed. Suggestion of error overruled.

Creekmore & Creekmore, for appellant.

The rule seems to be in a majority of states, that a champertous contract in relation to the prosecution of a suit between the plaintiff and another layman in no wise affects the obligation of defendant to plaintiff. This rule seems to be based on the idea that the champertous contract is the thing avoided and not the right of action itself. However, the contrary rule to this proposition is well established in Mississippi, Wisconsin, Tennessee, Ohio and Indiana. See Barker v. Barker, 14 Wis. 131; Kelly v. Kelly, 86 Wis. 170, 56 N.W. 637; Miles v. Mutual Reserve Life Association, 108 Wis. 433; Hunt v. Lyle (Tenn.), 8 Yerg. 142; Weedon v. Wallace, Meigs 286; Webb v. Armstrong, 5 Humph. 379; Greenman v. Cohee, 61 Ind. 201; Stewart v. Welch, 41 Ohio 483; The Clara A. McIntyre, 94 F. 552 (N. C.); 11 C. J. 271; Rives v. Weaver, 36 Miss. 374.

J. H. Ford, for appellee.

Appellant admits that it is absolutely immaterial to it so far as the recovery is concerned whether the agreement between appellee and Smith was champertous or not as if appellee should be denied recovering in this suit he could turn around and recover in another of the same character, for there can be no doubt that appellant owes him the amount sued for. The county is not interested in what appellee may do with the money it justly owes him when he gets it. The question whether the verbal agreement with Smith was champertous is collateral to the claim here sued on. On that question, the rule is that the defendant cannot defend on that ground. See 11 C. J. 270, sec. 103; Wood v. Walsh, 7 N.D. 376-385, 75 N.W. 767; Isherwood v. H. L. Jenkins Lbr. Co., 37 Minn. 388, 390, 92 N.W. 230; Allison v. Chicago, etc., R. Co., 42 Ia. 274, 280; Foley v. Grand Rapids, etc., R. Co., 157 Mich. 67-69, 121 N.W. 257; Hall v. Deaton (Ky.), 68 S.W. 672; 5 R. C. L. 284, par. 14; Prosky v. Clark, 32 Nev. 441, 109 P. 793, 35 L. R. A. (N. S.) 512; Robertson v. Blewett, 71 Miss. 409, 14 So. 33.

The case of Rives v. Weaver, 36 Miss. 374, is not authority for appellants in this case. In that case it was apparent to a court of equity that the very purpose of the appointment of Weaver as administrator of the estate to which he was a stranger, was to enable him to practice fraud on the court by the recovery in such capacity of certain property as the assignee of certain heirs who could not justly and legally recover same in their own right. The suit there was not being brought by the party who was entitled to recover, if a recovery could be had at all, but was being brought in the name of the assignee for the very purpose of practicing fraud and circumventing the law in the recovery of property which his assignors could not recover either in law or equity. See Moore v. Tunica County, 107 So. 659; Claiborne Co. v. Moorehead, 111 So. 372; De Soto Co. v. Wood, 116 So. 738; Hodnet v. Yalobusha Co., 128 Miss. 772, 91 So. 454.

Creekmore & Creekmore, on suggestion of error, for appellant.

Calhoun county, appellant, respectfully suggests that the court fell into error in rendering the opinion in this case in that the court apparently overlooked the case of Rives et al. v. Weaver, Administrator, 36 Miss. 374, wherein the court follows the minority view as to the effect of a champertous agreement between a plaintiff and a third person, other than defendant, and does not follow the general rule laid down in 11 C. J. 270, cited by the court in its opinion.

Our point is that, where it appears that the proceedings are founded in a collusive agreement and for an illegal purpose of using the forms and remedies of the law to enable a party to reap the fruits of a speculation in litigation, his conduct is a fraud upon the law and will not be tolerated; and that a suit tainted with champerty will not be entertained.

We do not believe this court intends, or intended to overrule the Rives case in the opinion of the case at bar; but the effect of the court's opinion is to overrule this case, which has stood for all these years as the rule in this state.

OPINION

PACK, J.

Plaintiff, appellee here, instituted suit against defendant, Calhoun county, appellant here, for four hundred fifty-eight dollars and forty-two cents claimed as salary for services as circuit clerk of said county from January 1, 1924, to April 12, 1924.

The suit was predicated on a decision of this court in Moore v. Tunica County, 143 Miss. 821, 107 So. 659, holding that chapter 160, Laws of 1922, was unconstitutional. This chapter attempts to change the compensation of county officers from a salary system, as fixed by chapter 122, Laws of 1920, to the fee system. The court, in the same opinion, held that section 33, chapter 122, Laws of 1920, was unconstitutional, but, being separable from other portions of the act, salaries of clerks, as fixed by other sections thereof, could continue to be collected until a valid act changed it. Chapter 207, Laws of 1924, effective April 12, 1924, was designed to change the compensation from a salary basis to another plan. It repealed all laws in conflict with it.

Appellant chiefly relies upon the contention that the action was conceived in champerty, and was being prosecuted under a champertous agreement.

The point was developed as follows: Appellee served as circuit clerk from January 1, 1924, under the erroneous impression that the fee system was then in effect. Some time thereafter he was approached by one Leland S. Smith, a public accountant, who advised appellee of his right to a salary for the fraction of the year from January 1, 1924, to April 12, 1924, and proposed that, if appellee would pay him (said accountant) a certain per cent of the recovery, he (said accountant, Smith), would assist in the prosecution of the suit and pay the court costs if the case should be lost.

An account was made up for the salary, and filed with the board of supervisors for allowance, but same was disallowed and payment refused. The account showed a credit for all fees collected by the clerk for the time covered by the suit.

To the special plea of the county raising this point, a demurrer was sustained.

We think the trial court was right. It will be unnecessary to hold whether or not the alleged champertous contract was void as between the parties. Conceding, but not deciding, this to be true, it would not affect appellee's right of action against the county. This principle of law is clearly stated in 11 C. J., section 2, p. 270, reading:

"Except in one state, the rule is well settled that the fact that there is a champertous contract in relation to the prosecution of the suit between plaintiff and his attorney or between plaintiff and another layman, in no wise affects the obligation of defendant to plaintiff. It is the champertous contract and not the right of action...