Campbell v. New Orleans National Bank

• Citation: 21 So. 400,74 Miss. 526
• Court: United States State Supreme Court of Mississippi
• Decision Date: 15 February 1897
• Parties: CHARLES CAMPBELL v. NEW ORLEANS NATIONAL BANK

21 So. 400

74 Miss. 526

CHARLES CAMPBELL v. NEW ORLEANS NATIONAL BANK

Supreme Court of Mississippi

February 15, 1897

October 1896

FROM the circuit court of Montgomery county HON. C. H. CAMPBELL Judge.

The New Orleans National Bank sued appellant upon a judgment. The defendant in the court below filed two pleas, each averring that the judgment sued upon was rendered by default upon a promissory note executed in this state to J. H. Allen & Co. to reimburse them for money paid for defendant, and as defendant's agents, in a gambling transaction on the rise and fall of prices, commonly called dealing in futures. A demurrer to the plea first filed was sustained, and then the second one was presented, varying the defense only in form and, a demurrer being sustained to the second plea, the defendant below declined to plead further. Judgment having gone against defendant, he appealed.

Reversed and remanded.

Sweatman, Trotter & Knox, for appellant.

That the contracts mentioned in the pleas were wagering contracts, and as such utterly void, is clear. Code 1880, § 990; code 1892, § 2114; Clay v. Allen, 63 Miss. 426; Lawson on Contracts, sec. 288; Tiedeman on Commercial Paper, sec. 189. And equally so are contracts made for the advancing of money knowingly to be used in gambling. Code 1880, §990; code 1892, § 2114; Clay v. Allen, 63 Miss. 426. The fact that a note was given in settlement of losses, that the note was transferred and a judgment obtained thereon, makes no difference under our law. 12 Smed. & M., 571; Ib. 157; 55 Miss. 244. The act of 1882 (Laws 1882, p. 140) did not repeal code 1880, § 990. This act of 1882 was intended to enlarge the statutes against gambling in futures, and not to restrict them.

Hill & Sisson, on same side.

The judgment sued upon is not conclusive against the pleas. A judgment upon a gambling contract, under our law, is utterly void, even if rendered in favor of an assignee, and can have no legal effect whatever. Lucus v. Waul, 12 Smed. & M., 157; Smyther v. Keys, 1 George, 179; McAuley v. Mardis, 1 Walker, 307; Crawford v. Storm, 41 Miss. 540. The "buying of futures" was actually prohibited by code 1880, § 990, and there is no inconsistency between that section and the act of 1882.

Somerville & McLean, for appellee.

Is the judgment of 1889 for money lost at a "wager, " and therefore void? § 2114, code of 1892 (§ 990, code 1880). Is it a judgment upon a contract for purchase of a commodity to be delivered at a future day, etc.? § 2116. If the latter, was not the cause of action merged in the judgment, and can there be any inquiry as to the original consideration? The only exception to the general doctrine of merger in our common law courts is the change of the rule prescribed in cases coming within § 2114, code of 1892 (§ 990 of code of 1880), where the judgment is condemned as void.

If the contention of appellant's counsel were well founded, the act of 1882 against futures would have been entirely unnecessary. Invoking the rule of construction applied in Lemonius v. Mayer, 71 Miss. 514, let us consider (1) the old law, (2) the mischief, (3) the remedy provided by the act in question. The law against the wagering of contracts has been upon the statute books since 1822, and yet Judge Cooper, in the case last cited, p. 521, says: "Now, the old law was that the contracts commonly called 'futures' were legal contracts, and that a party thereto, might enforce them by resort to the courts."

The mischief resulting from such speculations need not be rehearsed here. The remedy which was deemed sufficient was to make the act criminal, and to deny the right of enforcement of the contract in any court of this state. The time to call in question that right was when the action was first brought on the note. The legislature did not intend to make the judgment void, or it would have said so, as in the case of wagering contracts. It did not intend to impose such a clog upon commerce or to destroy the equities of subsequent holders and assignees by giving perpetual right of repudiation, to be waived or exercised at the option of the defaulter. 5 How., 110.

Cases cited by opposing counsel in the lower court, which seemed to militate against the foregoing views are not applicable to the case at bar. Smither v. Keys, 1 George, 179 holds judgment void because the statute says so. Hutch. code, § 940. In McAuley v. Madis, Walker, 307, the judgment was not plead as res adjudicata. The case of Clay v. Allen, 63 Miss. 426, is simply to the effect that, prior to the enactment of 1882,...