Hamilton v. State

• Citation: 7 So. 282,67 Miss. 217
• Court: United States State Supreme Court of Mississippi
• Decision Date: 17 February 1890
• Parties: J. S. HAMILTON ET AL. v. THE STATE OF MISSISSIPPI, AND THE STATE OF MISSISSIPPI v.. THE SURETIES OF HAMILTON ET AL

7 So. 282

67 Miss. 217

J. S. HAMILTON ET AL. v. THE STATE OF MISSISSIPPI, AND THE STATE OF MISSISSIPPI v.. THE SURETIES OF HAMILTON ET AL

Supreme Court of Mississippi

February 17, 1890

October 1889

APPEAL and cross-appeal from the circuit court of the first district of Hinds county.

HON. J B. CHRISMAN, Judge, presided on the trial of the case against the sureties. Hon. C. H. CAMPBELL, Judge, presided on the trial of the case as against the principals.

Hamilton Allen and Hoskins were lessees of the state penitentiary, and contracted to pay the state $ 39,420 per annum for the same. They entered into bond, with sureties, conditioned to carry out the terms of the lease contract, which included payment as above. This suit was brought on the bond against the lessees and their sureties for the alleged non-payment of the rent for the year 1885. Among others, the defendants filed the fifth plea which is mentioned in the opinion of the court. The state's demurrer to this plea was overruled. Thereupon, by leave of court, the state filed a replication to this plea, alleging that no transfer had been made of the penitentiary to the Gulf and Ship Island R. R. Co., because the company had failed to give bond as required by the act of March 13, 1884. To this replication the defendants demurred. The record was in this condition when the opinion of the judges of the supreme court as to the questions of law involved was, by agreement, sought and obtained. The other facts necessary to an understanding of the case are stated in the opinion of the court.

T. M Miller, attorney-general, for the state.

1. In seeking the opinion of the judges there was no agreement as to facts, nor any idea of allowing the pleas to prevail, if true, without the fullest measure of proof. The purpose was [manifestly] to get the views of the judges, as if on appeal, to control in the further progress of the case, that is as to the law. There is no room for the supposition that it was meant to cut off inquiry as to the facts stated in the pleas.

Surely it could not have been the purpose of counsel for the sureties to set a trap for the state's representative, and so win on a false plea. If no transfer was in fact made, the plea is false. The case being before the judges, as if on appeal, the conclusion that the decision was an arbitration settling the facts has absolutely nothing to rest on. The object was simply to obtain an expression of the views of the judges to govern as the law of the case. Certainly, if there be any doubt as to this, produced by the specious reasoning of appellees' counsel, it will be solved in favor of an investigation into the truth.

2. But if I am mistaken as to the scope of the agreement, I submit that the court should have allowed the facts to be tried on the issue presented by the replication. It was shown that the attorney-general made the agreement upon the belief that the facts were true as alleged in the plea, and that afterwards he learned the contrary. Certainly a court having control of the members of its bar, enforcing their agreements, has the power to relieve against one improvidently made, especially where the truth is discovered before the case is closed by judgment. Wharton on Ev., §§ 1184, 1189.

If by any possibility the effect claimed by opposite counsel could be given to the agreement of the attorney-general, he would have been false to his duty had he not protested against the state being prejudiced by his mistake of fact, especially as the defendants had not been prejudiced by the act.

3. The sureties had nothing to do with the further proceedings against the principals. So far as the latter were concerned, it was immaterial whether the plaintiff proceeded on the bond or on the contract to recover what; was due.

Nugent & McWillie, for Hamilton et al., lessees, appellants, and their sureties, appellees.

1. By the act of March 13, 1884, the lessees of the penitentiary were authorized to transfer their unexpired lease to the Gulf & Ship Island R. R. Co., "and, upon the execution of such transfer and assignment, and a copy thereof filed in the office of the secretary of the state, the said lessees or their assigns shall be released from all liability thereafter to the state of Mississippi." Acts 1884, p. 972. Section 2 of this act authorized the railroad company to accept the transfer, and required a bond of $ 100,000 conditioned to carry out the contract. The only condition to the exoneration of the lessees was the filing of the transfer. The railroad company was required to give bond, but not as a condition precedent to the transfer of the lease. The lessees had nothing to do with it. Such was the decision of the judges of this court when this question was submitted to them by agreement of all parties to this suit, and the conclusion is correct.

Both the principals and the sureties were discharged by this transfer. The act expressly so provides.

2. We think the decision on the agreement entered into, by which the questions of law were submitted to the judges, disposed of this case finally. The agreement expressly stipulates that the ruling of the judges shall be accepted by all parties as final, and that no appeal shall be allowed. Whatever question might arise in chancery on a trial to set aside the judgment, all parties were bound here by this agreement.

3. The practice of allowing a plaintiff to answer over after demurrer sustained to his replication has never been allowed. Ross v. Sims, 27 Miss. 362; R. R. Co. v. Orr, 52 Ib. 542. This is the general rule, although it is held to be discretionary to allow a new replication in such case upon an affidavit of merits. The affidavit of merits was waived here, but it was still discretionary with the court to refuse to allow the replication filed. Besides, the application of the attorney-general was not seasonably made. He did not make it until the second term of the court after the decision was made. He could not depart from the agreement fairly made and raise a new issue.

4. The case was submitted to the judges as arbitrators. The attorney-general ought to have been very sure of the facts involved in the controversy before hazarding the rights of the state by the agreement. Under the chapter of the code in relation to arbitrations and awards, the case was fairly disposed of in the circuit court. If there was fraud or circumvention, under § 2413 of the code, the state could, in equity, set aside the award; but there is no such contention here. Nor can any reason be shown for reversing the judgment in favor of the sureties.

[Counsel filed an elaborate written argument to show that the lessees, the principals in the bond, should also be released, and, therefore, that the judgment against them is erroneous. As the court holds that this judgment must be reversed as a consequence of reversing the judgment in favor of the sureties, and without reference to the questions involved on the appeal of the principals, it is unnecessary to give the argument.]

OPINION

CAMPBELL, J.

The state sued on the bond of Hamilton and others as lessees of the penitentiary to recover the money claimed to be due for rent stipulated to be paid. A number of pleas were pleaded and among them, one numbered 5th, in which it was averred that the defendants had been discharged from all liability on the bond sued on by an executed transfer of the penitentiary to the Gulf & Ship Island Railroad Company, in pursuance of an act of the legislature entitled, "an act to facilitate the construction of the Gulf & Ship Island Railroad Company, and for other purposes," approved March 13, 1884. While the case was pending in the circuit court, the attorney-general and counsel for the defense applied to the judges of the supreme court for their consent to decide the questions of law relating to the liability of the sureties on the bond in advance of a trial of the case in the circuit court, inasmuch as the case might be expected to come before the supreme court ultimately, however decided by the circuit court, and it was desirable to obtain an expression of the view of the judges of said court as soon as possible for the guidance of all concerned in the further progress of the case in the circuit court. The judges of the supreme court consented to hear the case and give their view of the law applicable, as requested by the counsel for the state and the defendants. In pursuance of what had occurred, an agreement signed by counsel was presented to the judges in which,...