Cowan v. Gulf City Fisheries, Inc.
| Citation | 344 So.2d 724 |
| Decision Date | 02 March 1977 |
| Docket Number | No. 49177,49177 |
| Parties | George B. COWAN and Frieda S. Cowan v. GULF CITY FISHERIES, INC. |
| Court | United States State Supreme Court of Mississippi |
Karl Wiesenburg, Robert H. Oswald, Pascagoula, for appellant.
Frank J. Hammond, Jr., Moss Point, C. W. Ford, Pascagoula, for appellee.
Before GILLESPIE, C.J., SMITH and WALKER, JJ., and MORGAN, Commissioner.
CLARENCE E. MORGAN, Commissioner for the Court: 1
Gulf City Fisheries, Inc., appellee, petitioned the Circuit Court of Jackson County for a writ of mandamus requiring the City Clerk of the City of Pascagoula to change a zoning map. George B. and Frieda S. Cowan, appellants, sought to intervene in the proceedings and their motion to do so was overruled. The circuit court entered judgment directing the writ of mandamus to issue requiring the City Clerk to change the zoning classification of appellee's property from residential to industrial on the official zoning map of the City of Pascagoula. The properties of appellants and appellee are adjacent.
On July 28, 1975, appellants gave notice of their intention to prosecute the appeal as authorized by Section 11-51-107 of the Mississippi Code of 1972. The appellants have appealed to this Court as taxpayers under the provisions of Section 11-51-105 of the Mississippi Code of 1972, citing the following assignments of error:
1. The circuit court erred in granting the writ of mandamus, the appellee having adequate remedies at law, the city clerk having correctly performed her duties, and mandamus not being available to adjudicate the zoning classification of appellee's property or to compel its rezoning.
2. The circuit court erred in granting the writ of mandamus, the circuit court's appellate judgment on December 11, 1972 being res judicata as to the zoning of appellee's property.
3. The circuit court erred in denying the appellants leave to defend the mandamus action in violation of their statutory and constitutional right to be heard on the rezoning of appellee's property.
We first address ourselves to the right of appellants to intervene in this cause. Section 11-51-105 of the Mississippi Code of 1972 provides that in all suits brought against any officer of a municipality in their official capacity, any taxpayer or taxpayers of the municipality shall have the right to defend all such suits and may prosecute an appeal to the circuit court of this state, if the officer subject to the suit does not prosecute an appeal within thirty (30) days from the date the same is rendered. We have heretofore held in Garraway v. State, 184 Miss. 466, 184 So. 628 (1938) and related cases, that this statute is not limited to tax related suits and that it is applicable to any suit brought against county or municipal officials. The appellants had the right to intervene in this action in the lower court and the right to appeal to this Court from an adverse ruling in the lower court under the provisions of this...
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Southpark Square Ltd. v. City of Jackson, Miss.
...for an appeal from a decision of the City Council to the Circuit Courts. Miss.Code Ann. § 11-51-75 (1972). See Cowan v. Gulf City Fisheries, Inc., 344 So.2d 724 (Miss.1977); City of Jackson v. Sunray DX Oil Co., 197 So.2d 882 (Miss.1967). Additionally, mandamus is available to compel issuan......
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Fordice, In re, 96-M-00114-SCT
...is not utilized in an attempt to circumvent administrative or trial court remedies, followed by an appeal. See Cowan v. Gulf City Fisheries, Inc., 344 So.2d 724 (Miss.1977) (circuit court grant of mandamus requiring city clerk to change property zoning classification was reversed where admi......
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In re Chisolm
...450, 158 So. 206 (1934); Bd. of Supervisors of Rankin County v. Lee, 147 Miss. 99, 113 So. 194 (1927). ¶ 35. Cowan v. Gulf City Fisheries, Inc., 344 So.2d 724 (Miss.1977), held that the circuit court erred in granting a writ of mandamus. The Court stated that the writ is "an extraordinary w......
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Luter v. Oakhurst Associates, Ltd., 57345
...to ... prosecute an appeal to the Supreme Court.... City of Clinton v. Smith, 493 So.2d 331, 336-37 (Miss.1986); Cowan v. Gulf City Fisheries, Inc., 344 So.2d 724 (Miss.1977); see also Cooper v. City of Picayune, 511 So.2d 922 For these reasons, the motion filed by Oakhurst and Mounger to d......