McBride v. State Revenue Agent

• Decision Date: 10 April 1893
• Citation: 70 Miss. 716,12 So. 699
• Court: Mississippi Supreme Court
• Parties: S. L. MCBRIDE ET AL. v. STATE REVENUE AGENT ET AL

12 So. 699

70 Miss. 716

S. L. MCBRIDE ET AL. v. STATE REVENUE AGENT ET AL

Supreme Court of Mississippi

April 10, 1893

FROM the chancery court of the first district of Carroll county HON. T. B. GRAHAM, Chancellor.

The case is stated in the opinion.

Percy R. Somerville, for appellants.

The jurisdiction of the circuit court was first invoked by one of the appellees. That jurisdiction cannot now be ousted by a resort to equity, even though the relief prayed be peculiar to equity. 1 Pom. Eq. Jur., § 179, and cases cited. Trial by a jury is a constitutional right, and will be protected.

Section 503, code 1892, does not alter or enlarge the jurisdiction of chancery courts, except where creditors are permitted to file bills before obtaining judgment. The statutory right of the complainants to intervene in the attachment suits is admitted. Thus they have a complete remedy at law. Learned v. Holmes, 49 Miss. 290; Weddell v Seal, 45 Ib., 726; Irwin v. Lewis, 50 Ib., 363. Notwithstanding the dictum in Lowenstein v. Aaron, 69 Miss. 341, I submit that the litigant cannot himself invoke the jurisdiction of law, and then abandon that forum without any averment that his remedy there is inadequate.

So much of § 1590, code 1892, as prescribes the penalty of $ 1,500 against one unlawfully selling liquors, and making it the duty of the sheriff or state revenue agent to attach therefor, is unconstitutional. It provides a penalty, not a tax. It is an extremely harsh and stringent statute, and makes no provision for a judicial determination of the question of liability. It provides for attachment without bond by such officers, when informed of the sales or gifts of liquors. What becomes of § 23, article 3, of the constitution prohibiting unreasonable seizures?

I submit that the revenue agent is not such a creditor as is contemplated in § 503, code 1892, providing that the creditors may attack fraudulent conveyances, as his acquiring a lien must be confined to the prescribed method of attachment.

A. H Somerville and Southworth & Stevens, on the same side.

Thos H. Somerville, for appellees.

The answer to the argument as to jurisdiction is, that under our code the jurisdiction of the circuit and chancery court is concurrent as to setting aside fraudulent conveyances. Complainants had the right to elect their forum, and have exercised it by filing their bill. None of them have intervened in the circuit court; besides, those of the complainants who have not attached are without any adequate remedy in the circuit court. The intervenors in the attachments could not subject the property to their claims. But the question of jurisdiction is settled in this court by Lowenstein v. Aaron, 69 Miss. 341. The equities of all the parties, could be adjudicated without the issuance and service of an injunction. Howard v. Proskauer, 57 Miss. 247.

The penalties which the state revenue agent seeks to recover are due the state, county and town respectively. He has full authority under the statute. The attorney-general and district attorney are authorized to bring such suits. Code 1892, §§ 180, 1561.

OPINION

COOPER, J.

Certain creditors of the firm of McBride & Co., and Wirt Adams, revenue agent of the state, exhibited their bill in the chancery court of Carroll county against the members of said firm and against S. L. McBride, E. S. Tusten, Peavy & Harris and Mrs. M. C. Hamilton, attaching creditors of McBride & Co., and against J. S. McCain, the sheriff of the county of Carroll, who has in his possession the property of said firm, seized under said attachments. The averments of the bill are that McBride & Co. were indebted to the complainants, other than the revenue agent, in certain sums, and were indebted to the said revenue agent in the sum of $ 1,500, viz., $ 500 for the use of the state of Mississippi, $ 500 for the use of the county of Carroll and $ 500 for the use of the town of Carrollton, because of the unlawful sale by said firm of intoxicating liquors in their drug store, in the town of Carrollton, on or about January 1, 1893; that the revenue agent, on the twenty-first of January, A.D. 1893, assessed and demanded the penalties due him by McBride & Co., and thereupon, said firm and S. L. McBride, the father of one of the members of said firm and the uncle of the other, and E. S. Tusten, the mother-in-law of one of said members, colluded and conspired to defeat the claims of said revenue agent and the other complainants; and, to carry out their scheme, said S. L. McBride and E. S. Tusten sued out collusive attachments against the estate of McBride &,Co., founded upon simulated demands; that several grounds of attachment are set forth in the affidavits of said attaching creditors, but, as complainants are informed, the one principally relied on is the tenth, specified in § 129 of the code of 1892, viz.; "That the defendants are buying and selling, or dealing in, or have, within six months next before the suing out of the attachment, directly or indirectly, bought, sold or dealt in future contracts, commonly called 'futures.'" Complainants allege that, if this ground of attachment be true, the act was performed by McBride & Co. collusively with S. L. McBride and Mrs. Tusten, and for the fraudulent purpose of affording them ground for attachment, in order that complainants, as creditors of McBride & Co., should be defrauded and hindered in the collection of their debts.

The complainants show that, after the attachments of S. L. McBride, E. S. Tusten and Peavy & Harris had been sued out and levied upon the estate of McBride & Co., Wirt Adams, as revenue agent, sued out an attachment, and afterwards the defendant, Mrs. Hamilton, sued out her attachment, both of which were levied on the same property, the value of which is insufficient to pay all the attachments levied.

The prayer of the bill is that the fraudulent and collusive attachments be vacated and displaced and the levies thereof be dismissed, and the property sold and its proceeds applied to the payment of complainants' demand.

The defendants filed answers, denying the frauds charged against them, and demurred. Their demurrer was overruled, and they now appeal. The grounds of demurrer assigned are (1) want of equity on the face of the bill; (2) because complainants have a full, adequate and complete remedy at law; (3) because a court of chancery has no jurisdiction; and, as to the relief prayed by the revenue agent, (4) that he had no right to maintain the bill, and (5) that he fails to show that he is a creditor of McBride & Co.

The appellants contend here that the exercise of jurisdiction by the chancery court is a violation of § 31, constitution 1890, which declares that "the right of trial by jury shall remain inviolate."

The first three grounds of demurrer are decided adversely to appellants by the case of Cogburn v. Pollock, 54 Miss. 639.

In reply to the argument that, to uphold the jurisdiction of equity to subject the attached property to the demands of complainants would be to deny to the defendants their right to a trial by jury, it is only necessary to say that, with us, this question is concluded by our recent constitution. In Scott v. Neely, 140 U.S. 106, 35 L.Ed. 358, 11 S.Ct. 712, the supreme court of the United States declined to entertain the jurisdiction in equity conferred by § 1843, code of 1880, upon the ground that, to do so, would be violative of the right of the defendant to a trial by jury, secured by the seventh amendment to the constitution of the United States. On the other hand, such statutes have been supported in several states. The subject was fully discussed by the supreme court of Alabama, and the authorities reviewed, in Railroad Co. v. McKenzie, 85 Ala. 546, 5 So. 322, and, in the same case, on a subsequent appeal (11 So. 367), and the jurisdiction of equity upheld.

But, by the constitution of 1890, this jurisdiction was expressly conferred upon our court of chancery. Section 159 declares "The chancery court shall have full jurisdiction in the following matters and case...