Cooley v. Tullos

• Decision Date: 18 June 1917
• Docket Number: 19373
• Citation: 115 Miss. 268,76 So. 263
• Court: Mississippi Supreme Court
• Parties: COOLEY ET AL. v. TULLAS ET AL

76 So. 263

115 Miss. 268

COOLEY ET AL. v. TULLAS ET AL

No. 19373

Supreme Court of Mississippi

June 18, 1917

Division A

APPEAL from the circuit court of Smith county, HON. W. H. HUGHES Judge.

Suit by J. S. Tullas and others against J. Cooley and others. From a judgment for plaintiffs, defendants appeal.

Appellees were employed as laborers at the sawmill of appellants, and were engaged in the manufacture of lumber. They brought a joint suit in the court of a justice of the peace for wages due them for several months, aggregating one hundred forty-nine dollars and fifty-five cents and sued out a writ of seizure, which was levied upon certain lumber of the appellants; the proceedings being had under the provisions of chapter 131, Laws of 1908, which provides as follows:

"Section 1. That every employee or laborer of a person, partnership or a corporation engaged in operating a sawmill, planing mill, or in cutting and shipping (or rafting) timber shall have a lien on all such timber of his employer, for his wages due by such employer, in preference to all other debts due and owing from the owner thereof. But such lien shall take effect as to purchasers or incumbrances for a valuable consideration, without notice thereof, only from the time of commencing suit to enforce the lien.

"Sec 2. That the lien herein provided may be enforced and trial and judgment had in the same manner as the lien for purchase money is enforced under the provisions of the chapter on lien for purchase money of goods.

"Sec. 3. That the lien hereby created shall expire three months after the claim is due unless judicial proceedings have commenced to assert it."

Section 3080 of the Code of 1906 is as follows:

"Any seller of personal property, or his assigns, who shall be about to begin suit for the purchase money thereof, may file with his declaration or evidence of debt an affidavit designating the property sought to be subjected and averring therein the liability of the property, in whole or part, for the debt sued on; whereupon the clerk of the court, or justice of the peace in cases before him, shall issue a writ of summons and seizure commanding the officer to seize the property and deal with it as in the case of an attachment for debt, and to summon the defendant as in other cases. The defendant may replevy the property as in case of attachment against debtors."

There was a judgment for the plaintiffs below for the amount sued for, and the defendant's appeal, contending that there was a misjoinder of parties, inasmuch as each of the appellees had a separate cause of action against the appellants.

Affirmed.

A. M. Edwards, for appellants.

At the trial of this cause in the circuit court the defendants made a motion there to dismiss the case for the reason that there was a misjoinder of plaintiffs in the case; and this is one of the assignments of error, which we insist is well taken.

If appellants were due these several plaintiffs, or appellees each, certain sums of money for labor done at appellants' mill, then each one of these plaintiffs had a separate and distinct cause of action against appellants, and their causes of action could not be joined in a suit like this.

Chapter 131 of the Laws of 1908, under which plaintiffs were proceeding when they instituted this suit, and seized the said lumber, reads as follows:

Section 1. Be it enacted by the legislature of the state of Mississippi, that every employee or laborer of a person, partnership, or corporation engaged in operating a sawmill, planing mill, or in cutting and shipping (or rafting) timber, shall have a lien on all such lumber and timber of his employer, for his wages due by such employer, in preference to all other debts due and owing from the owner thereof. But such lien shall take effect as to purchasers or incumbrances for a valuable consideration, without notice thereof, only from the time of commencing suit to enforce the lien.

How same may be enforced and judgment had.

Sec. 2. That the lien herein provided may be enforced and trial and judgment had in the same manner as the lien for purchase money is enforced under the provision of the chapter on lien for purchase money of goods.

Sec. 3. That the lien hereby created shall expire three months after the claim is due unless judicial proceedings have commenced to assert it.

Sec. 4. That this act, shall take effect and be in force from and after its passage. Approved March 20, 1908.

Sec. 3080 of the Code of 1906, reads as follows: "Proceeding to enforce any seller of personal property, or his assigns, who shall be about to begin suit for the purchase money thereof, may file with his declaration or evidence of debt an affidavit designating the property sought to be subjected and averring therein the liability of the property, in whole or in part for the debt sued on; whereupon the clerk of the court, or the justice of the peace in cases before him, shall issue a writ of summons and seizure, commanding the officer to seize the property and deal with it as in the case of an attachment for debt, and to summon the defendant as in other cases. The defendant may replevy the property as in case of attachment against debtors."

The legislature by the above act referred to has given laborers at sawmills a lien on the lumber manufactured for his wages, and also has said how this lien shall be enforced and this procedure must be followed, otherwise the procedure will be void.

In the case at bar the plaintiffs have no community of interest, but that their rights are separate, there can be no doubt; any one of these plaintiffs could have sued and recovered against these defendants without prejudicing the action of the other.

There might have been set-offs and counterclaims and recoupments affecting in the least the other plaintiffs. If these plaintiffs can all join in their actions against the defendants in the case at bar, then four plaintiffs or fifty or more persons might sell a cow apiece to a drover, and on his failing to pay for the cows,...