Enochs Lumber & Mfg. Co. v. Garber

• Decision Date: 15 October 1917
• Docket Number: 19789
• Citation: 76 So. 730,116 Miss. 229
• Parties: ENOCHS LUMBER & MFG. CO. ET AL. v. GARBER, ET AL
• Court: Mississippi Supreme Court

76 So. 730

116 Miss. 229

ENOCHS LUMBER & MFG. CO. ET AL. v. GARBER, ET AL

No. 19789

Supreme Court of Mississippi

October 15, 1917

APPEAL from the circuit court of Hinds county, HON. W. H. POTTER Judge.

Proceeding by the Enochs Lumber & Manufacturing Company and others materialmen, against J. C. Garber, contractor and others. Judgment that rights of parties were equal to concurrent was affirmed and plaintiffs suggest error which was sustained.

The facts are fully stated in the opinion of the court.

Suggestion of error sustained.

Green &amp Green, for appellant.

R. H. & J. H. Thompson, Fulton Thompson and Ridgeway & Ridgeway, for appellees.

OPINION

ETHRIDGE, J.

Per Curiam. Affirmed.

ON SUGGESTION OF ERROR.

The agreed statement of facts is as follows:

"Come the parties to the above-styled cause by their attorneys of record, and agree: That the agreed statement of facts and the judgment of the court rendered thereon shall constitute the transcript of the record in the case of the Enochs Lumber & Mfg. Company et al. v. I. C. Garber et al., appealed from the circuit court of the First district of Hinds county, Miss,. to the supreme court of Mississippi, and that the two documents shall be certified as such and be considered a full transcript in the supreme court of Mississippi for the consideration and final adjudication of the cause.

"Under an order of consolidation, causes numbered 3636, 3637, and 3642, on the docket of the circuit clerk of the First district of Hinds county, Miss., were consolidated under cause No. 3637, thus making all parties in interest parties to 3637.

"Petitioners are materialmen who each severally furnished materials to I. C. Garber, a contractor, used by him in the construction of an annex to the Young Men's Christian Association Building of Jackson, Miss. Mr. Garber's contract was for the sum of two thousand, five hundred eighty-six dollars. No notice was served until the balance due was reduced to six hundred seventy-three dollars and thirty-nine cents (which amount the Y. M. C. A. now tenders into court).

"Thereupon in the following order several notices were served in full compliance with section 3074, Mississippi Code of 1906, upon the Y. M. C. A. of Jackson, Miss., that:

I. C. Garber was due Enochs Lumber &

Manufacturing Company

$ 241.80

I. C. Garber was due Jackson Lumber

Company

345.95

I. C. Garber was due Bullard Brick Company

259.45

I. C. Garber was due Ray Wright

130.00

I. C. Garber was due Central Lumber

Company

241.32

I. C. Garber was due Morrison Coal Company

80.15

I. C. Garber was due Addkison & Bauer

42.90

I. C. Garber was due S. P. Cagle

50.00

--for materials so furnished and used.

"That I. C. Garber was adjudged bankrupt February 12, 1917, and that D. H. Holder was elected and has qualified as his trustee in bankruptcy.

"The sole controverted question is of law. Does priority of notice under section 3074, Mississippi Code 1906, vest a prior right, or are all liens under section 3072, Code 1906, concurrent?"

On this agreed statement of facts the circuit court held that the rights of the several parties were equal and concurrent and that they should have the pro rata according to the amount of their claims of the fund paid into court, and this judgment was affirmed on a former day of this court under the theory that these rights would be governed by the provisions of section 3072 of the Code, taken in connection with section 3074. On the suggestion of error, it is insisted that this opinion was error, and that it was contrary to the doctrine of Herrin v. Mobley, 61 Miss. 509 and Spengler v. Lumber Co., 94 Miss. 780, 48 So. 966, 19 Ann. Cas. 426. In the case of Herrin v. Mobley, 61 Miss. 509, the court held that these notices of subcontractors and laborers are equivalent to garnishment, and that he who was prior in time was prior in right. In that case a creditor having a judgment garnished, and the notices of the laborers under the statute were filed subsequent to the garnishment, and the court held that the first garnishor, that is, the creditor having a judgment, had a right to have his full demand settled before the ones giving the subsequent notices...