Holberg Mercantile Co. v. State

• Decision Date: 15 March 1909
• Docket Number: 13,591
• Court: Mississippi Supreme Court
• Parties: HOLBERG MERCANTILE COMPANY v. STATE OF MISSISSIPPI

48 So. 622

95 Miss. 21

HOLBERG MERCANTILE COMPANY v. STATE OF MISSISSIPPI

No. 13,591

Supreme Court of Mississippi

March 15, 1909

FROM the circuit court of, second district, Jones county, HON ROBERT L. BULLARD, Judge.

The state of Mississippi, appellee, was plaintiff in the court below; one Isaac Laskey, was defendant there, and the Holberg Mercantile Company, appellant, was claimant.

The proceedings originated in an affidavit, under Code 1906 § 1749, charging that defendant Laskey was keeping for unlawful sale and was offering to sell unlawfully, in a designated box car, large quantities of intoxicating liquors. A warrant for the seizure of the liquors so kept was issued by the justice of the peace, before whom the affidavit was made, and thereunder the sheriff seized liquors of the value in the aggregate, of four hundred and twenty-one dollars and made due return thereof, to the justice of the peace. The Holberg Mercantile Company, appellant, claimed a part of the liquors, less in value than two hundred dollars, and two other parties separately claimed parts of the balance of the goods, but neither claimed goods in value exceeding two hundred dollars. The three claims, however, covered all the liquors seized.

The justice of the peace sent the entire case, all three of the claims to the circuit court. When the case came on for trial in the circuit court, the appellant moved a dismissal of the cause for want of jurisdiction, but the motion was overruled. Appellant's claim was controverted by the state, a trial thereof was had resulting in a verdict and judgment for the state, from which claimant appealed. The other two claims, by agreement, abided the result in the one actually tried and like judgments were entered in them, and the appeals in them followed the result in this one.

Judgment reversed and cause remanded.

R. V Fletcher, attorney-general for appellee.

The most seriously argued contention of appellant is that the case should have been dismissed from the circuit court because, while the total value of the liquor seized exceeded $ 200, the value of the part claimed by each claimant was less than $ 200, and therefore that the justice of the peace had the jurisdiction and not the circuit court. In the first place it would appear that the claimants are stopped from setting up any such claim.

The record shows that the claimants entered a motion in the justice's court to dismiss the case because the court had no jurisdiction, and in response to this motion an order was made by the justice transferring the cause to the circuit court. Then when the case reached the circuit court these same claimants again made a motion to dismiss the cause from the circuit court because it was improperly removed from the justice court. I do not think these claimants can thus play fast and loose with the law. They cannot object to the justice's jurisdiction and then afterwards object to the jurisdiction of the circuit on the ground that the justice erred in acceding to their demands.

But aside from this action the circuit court was correct. The whole thing is regulated by statute. The statute provides: "if the value thereof be over $ 200 the justice shall send the claim to the circuit court of the county for trial." Manifestly this means that if the value of the liquor is over $ 200, regardless of the question as to how many claimants there are and the value of each one's claim. It should be remembered that this is altogether regulated by statute. The constitutional provision, section 171, which fixes the limit of the justice's jurisdiction has no application, for it has been held by the supreme court that a claimant's issue is not a "cause" within the meaning of section 171 of the Constitution and that the procedure in such cases is merely incidental to the jurisdiction of the court trying the main issue. Bernheimer v. Martin, 66 Miss. 486, 6 So. 326.

R. E. Halsell and Stone Deavours, for appellant.

In the circuit court the claimants moved to dismiss the case because the circuit court was without jurisdiction. This motion was by the court overruled, and a trial was had, resulting in a verdict for the state, and condemning the liquor and ordering it to be destroyed. Our contention is that the circuit court was without jurisdiction, and this case ought to have been sent back to the justice court for trial. This case depends on a construction of section 1750 of the Code of 1906. In the second paragraph this language is used: "If the value thereof be over $ 200, the justice should send the claim to the circuit court of the county for trial." It is true that the value of the liquor seized was over $ 200. There were four claimants, and each claim was less than $ 200, and we contend that the same rule applies to this case as applies to claimants' issues generally, and that the justice court had...