City of Natchez v. Craig

Decision Date22 September 1941
Docket Number34669.
Citation3 So.2d 837,191 Miss. 567
PartiesCITY OF NATCHEZ v. CRAIG, State Tax Com'r.
CourtMississippi Supreme Court

Brandon & Brandon, of Natchez, for appellant.

W E. Gore, Forrest B. Jackson, and Creekmore & Creekmore all of Jackson, and Engle & Laub, of Natchez, for appellee.

McGEHEE Justice.

This suit is brought by attachment in chancery on behalf of the state, to collect certain excise taxes which are alleged to be due from two nonresident construction companies under section 2-e, chapter 119, Laws of 1934, as amended, and known as the "Sales Tax Law," but which taxes are levied for the privilege of engaging, or continuing, within this state in the business of contracting. The appellant, City of Natchez, a municipal corporation, is sued as garnishee under section 173 et seq., Code of 1930, it being alleged that such resident garnishee is indebted to the nonresident defendants and has effects of theirs in its hands or under its control.

Process has not been served upon the principal defendants, but the City of Natchez in due time appeared in response to its summons, and objected to being required to answer the garnishment, and filed a motion to dismiss the proceeding as to it, claiming the immunity which the previous decisions of this Court have declared to exist in favor of such a governmental subdivision of the state. Dollman v. Moore, 70 Miss. 267, 12 So. 23, 19 L.R.A. 222; Dollar v. Allen-West Commission Co., 78 Miss. 274, 28 So. 876; Clarksdale Compress Co. v. Caldwell Co. et al., 80 Miss. 343, 31 So. 790; and Howell v. Kersh, 152 Miss. 266, 119 So. 186.

This objection and motion were overruled, upon the theory that a political subdivision of the state should not be permitted to claim this immunity from garnishment where the sovereign itself is seeking to subject to the payment of its demand any indebtedness of the garnishee to the principal defendant who is being sued by the state. Thereupon, this appeal was granted to settle the controlling principles of law involved. But we are not warranted in passing upon the precise question thus presented by the appeal, for the reason that in the case of Dunn Construction Co. v. Craig, State Tax Collector, 2 So.2d 166, not yet officially reported, the Court held that the enforcement of any of the provisions of said chapter 119, Laws of 1934, as amended, in any of the courts of this state is vested exclusively in the jurisdiction of the Chairman of the State Tax Commission at least in so far as the State Tax Collector, and other statutory officers, are concerned. Therefore the state has not invoked the jurisdiction of the court to decide the question; it is not in court through any legal representative authorized by law to sue in such case.

In the case of Gully, State Tax Collector, v. Stewart et al., 178 Miss. 758, 174 So. 559, the court below sustained a demurrer to a bill of complaint, and dismissed the suit on the ground that the State Tax Collector was not authorized to bring that suit. The decree was affirmed on appeal. Thereafter, a separate suit was filed by the Attorney General on the same cause of action, and there was a plea of res adjudicata by the defendants on the ground that the State of Mississippi had theretofore, by and through J. B. Gully State Tax Collector, filed its suit in said court on identically the same cause of action involved in the then pending cause, and against the same defendants, and that the Chancery Court, having dismissed the former suit, and its decree in that behalf having been affirmed by the Supreme Court, such former decree and judgment were res adjudicata of the issues involved. The plea of res adjudicata was overruled by the trial court, and upon appeal of the case of State ex rel. Rice v. Stewart et al., 184 Miss. 202, 184 So. 44, 46, 185 So. 247, this Court affirmed the action of the lower court, saying: "And, since the State, as a party litigant, is subject to all the rules governing the procedure of the courts in other cases, and entitled to all the rights and remedies to which individuals are entitled in a given state of case, as provided for under Section 6002 of the Mississippi Code of 1930, the State could not be bound by an appearance in court on its behalf by an unauthorized official to any greater extent than an individual could be bound by the act of a person assuming to sue on his behalf without authority. Weems v. Vowell, 122...

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4 cases
  • Kennington-Saenger Theatres v. State ex rel. Dist. Atty.
    • United States
    • Mississippi Supreme Court
    • June 12, 1944
    ... ... Theatres, Inc., defendant, to operate theatres and moving ... picture shows in the City of Jackson, Mississippi, upon the ... Sabbath Day be and is hereby cancelled and set to ... rel. v. Stewart, 184 Miss. 202, 184 So. 44, 46, 185 So ... 247, and City of Natchez v. Craig, State Tax ... Com'r, 191 Miss. 567, 3 So.2d 837, 838, and in which ... former case the ... ...
  • Hancock v. Pyle
    • United States
    • Mississippi Supreme Court
    • September 22, 1941
  • Lincoln v. Mills
    • United States
    • Mississippi Supreme Court
    • September 22, 1941
  • Bank of Santa Fe v. Garcia
    • United States
    • Court of Appeals of New Mexico
    • March 14, 1985
    ...to invoke the court's aid and, therefore, the court was without jurisdiction to grant relief on their behalf. See City of Natchez v. Craig, 191 Miss. 567, 3 So.2d 837 (1941); 21 C.J.S. Courts Sec. 83 (1940). The underlying judgments upon which the deficiency judgments were based are not aff......

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