Mcmanus v. Craig, State Tax Collector
| Decision Date | 11 November 1940 |
| Docket Number | 34248 |
| Citation | 190 Miss. 1,198 So. 559 |
| Court | Mississippi Supreme Court |
| Parties | MCMANUS et al. v. CRAIG, STATE TAX COLLECTOR |
Suggestion Of Error Overruled, December 23, 1940.
APPEAL from the chancery court of Harrison county, HON. D. M RUSSELL, Chancellor.
Suit by J. B. Gully, as state tax collector, against Eustis McManus chancery clerk of Harrison county, and another, for permitting lands sold at tax sales to be redeemed without requiring redemptionists to pay interest required by statute wherein Carl N. Craig, as state tax collector, was substituted as plaintiff. From a decree overruling general demurrers to complaint, defendants appeal. Appeal dismissed.
Appeal dismissed.
Wallace & Greaves, of Gulfport, and Jacobson, Snow & Covington, of Meridian, for appellants.
No recovery can be awarded on the facts stated in the bill until the court has adjudged the releases complained of are legally sufficient to divest the state of its titles to the lands involved, and the law confers no authority upon the State Tax Collector to maintain a suit for that purpose.
Gully, State Tax Collector, v. Stewart, 178 Miss. 758, 174 So. 559; State, ex rel, Rice, Atty. Gen., v. Stewart, 184 So. 44, 185 So. 247, 184 Miss. 202; Sec. 6986, Code of 1930.
The sole power and authority to commence and prosecute suits concerning the state's titles to these lands is conferred upon the state land commissioner by statute.
State ex rel. Brown, Land Com'r., v. Poplarville Sawmill Co., 119 Miss. 432, 81 So. 124; Patterson v. State, 177 Miss. 227, 170 So. 645; State ex rel. Rice, Atty.-Gen., v. Stewart, 184 Miss. 202, 184 So. 44, 185 So. 247; Reliance Inv. Co. v. Johnson (Miss.), 193 So. 630, 194 So. 749; Secs. 6019, 6020, 6021, Code of 1930.
All persons having, claiming, or asserting any right, title, or interest in and to the lands involved, so far as known to the complainant or as can be ascertained by him by diligent inquiry, are essential parties to the suit insofar as it seeks the adjudication of the validity of the releases complained of, so as to render them legally sufficient to divest the state of its titles to the lands alleged to be affected by them. The State Land Commissioner is, also, an essential party to the suit.
Trager v. Jenkins, 75 Miss. 676, 23 So. 424; Smith v. W. Denny & Co., 90 Miss. 434, 43 So. 479; Paepcke-Leicht Lbr. Co. v. Savage, 137 Miss. 11, 101 So. 709; Carrier Lbr. & Mfg. Co. v. Quitman County, 156 Miss. 396, 124 So. 437, 125 So. 416; Lamar Life Ins. Co. v. Billups, 175 Miss. 771, 169 So. 32; Fitts v. Huff, 63 Miss. 594.
The action of the court in the dismissal of the appeal is supported by a written opinion in which the reasons for the judgment of dismissal are stated. The opinion makes it obvious that the court has treated the bill of complaint as one stating a case imperfectly, but has treated all of the obvious imperfections as being curable by amendments, as were the bills considered in the cases of Carothers v. Bank of Baldwyn, 158 Miss. 602, 131 So. 111; Stirling v. Whitney National Bank, 170 Miss. 674, 150 So. 654; Standard Lbr. Mfg. Co. v. Roddis Lbr. & Veneer Co., 168 Miss. 202, 151 So. 152; and other cases to the same effect.
A careful examination of the bill of complaint discloses that, if the complainant has any cause of action at all against the defendants, it must rest upon a valid divestiture of the state's titles to the lands involved in the suit, which inevitably involve substantive legal questions that cannot be judicially determined in a suit by the state tax collector against the chancery clerk, who is alleged to have issued the alleged redemption certificates without collecting all of the statutory charges in favor of the state, the county, and the various taxing districts within the county against the lands covered by such certificates. Certainly, this question presents the controlling principle of law involved in the cause, and all of the other legal questions presented by the facts stated in the bill are subordinate and can have no controlling effect.
It is suggested in the OPINION that the appellants should have interposed special demurrers to the bill, for the purpose of invoking the aid of the court in the correction of formal defects in the bill. In response to this suggestion by the court, we say, if the appellants had interposed special demurrers to the bill, that would have constituted a procedural step, or steps, from which no interlocutory appeal lies. The only provisions for interlocutory appeals are found in Section 14, Code of 1930, and this court has held in numerous decisions that decrees and rulings in procedural matters are not within the provisions of this statute.
Love v. Love, 158 Miss. 785, 131 So. 280; Marquette Cement Mfg. Co. v. New Amsterdam Casualty Co., 174 Miss. 843, 165 So. 615; Dunn v. Dent, 176 Miss. 786, 170 So. 299; Breland v. Lemastus, 183 Miss. 150, 183 So. 500.
May & Byrd, of Jackson, for appellee.
Appellants say that the State Tax Collector has no right to maintain this suit, although they did not raise that by the demurrer, and they cite the case of Gully, State Tax Collector, v. Stewart, 178 Miss. 758, and they take the position that the sole power and authority to commence and prosecute suits concerning the state's title to land is conferred upon the State Land Commission by statute, and therefore the State Tax Collector cannot proceed in this case.
The appellants have, we submit, completely misconstrued the purpose of the instant suit. The purpose of the instant suit is not to affect and cannot and does not affect title to the lands in question. As far as we know no one has raised the question of the validity of the redemptions, and the redemptionists have gone their way assuming, and properly so we think, that they have done what the law required of them and that their title insofar as the tax sale is concerned is now clear. The State Tax Collector then comes to court and says nothing about the title of these lands, but bases his suit upon the fact that by virtue of the breach of an official duty by McManus the State of Mississippi and the subdivisions of Harrison County and Harrison County have lost more than $ 20, 000 by reason of this breach of duty wherefore the cause of action will lie. The State Tax Collector is not undertaking in this suit to determine the title of the state to any land, but is undertaking to collect money which the chancery clerk was under a duty to collect, but which he failed and refused to collect and which by his action the state has lost. McManus in refusing to collect the same will be treated as having collected the same and will be liable on...
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