People of State of Mississippi ex rel. Giles v. Thomas, 71-2491.

• Decision Date: 06 July 1972
• Docket Number: No. 71-2491.,71-2491.
• Citation: 464 F.2d 156
• Parties: The PEOPLE OF the STATE OF MISSISSIPPI On the Relation of Lela Mae GILES, Plaintiff, v. Fred THOMAS, Sheriff of Hinds County, et al., Defendants-Appellees. Lela Mae GILES, Individually, Plaintiff-Appellant, v. H. C. BAILEY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

464 F.2d 156 (1972)

The PEOPLE OF the STATE OF MISSISSIPPI On the Relation of Lela Mae GILES, Plaintiff, v. Fred THOMAS, Sheriff of Hinds County, et al., Defendants-Appellees.

Lela Mae GILES, Individually, Plaintiff-Appellant, v. H. C. BAILEY et al., Defendants-Appellees.

No. 71-2491.

United States Court of Appeals, Fifth Circuit.

July 6, 1972.

Bernard W. N. Chill, Jackson, Miss., for plaintiff-appellant.

Bob Ray, Jackson, Miss., for Fred Thomas, P. R. Jones, J. W. Richardson, and U. S. Fidelity.

Junior O'Mara, Jackson, Miss., for H. C. Bailey and Jack Partridge.

Jerome B. Steen, Jackson, Miss., for Jackson Apartments, Inc.

Before WISDOM, GOLDBERG and CLARK, Circuit Judges.

PER CURIAM:

The plaintiff, Lela Mae Giles, brought suit under 42 U.S.C. § 1983¹ for damages allegedly arising from her temporary eviction from an apartment in Jackson, Mississippi. Giles sued the Sheriff of Hinds County, Fred Thomas; two of his deputies, Pal R. Jones and P. P. Lamburth; United States Fidelity and Guaranty Company, as surety on the official bond of Thomas; J. W. Richardson, Justice of the Peace of the Fifth Justice of the Peace District, Post 2, of Hinds County; USF&G as surety on Richardson's official bond; Jackson Apartments, Inc., the owner of Giles' rental unit and the complex in which it was located; H. C. Bailey, Realtor, a partnership employed to manage the apartment complex for Jackson Apartments, Inc.; and Jack Partridge, an employee of Bailey who in 1968 had charge of renting apartments in the complex where Giles lived. She sought $100,000 damages.

On September 20, 1968, Partridge signed an affidavit in the Justice of the Peace court of Richardson, on behalf of Bailey, asserting that Giles was in arrears in payment of her rent. On the basis of this affidavit, Richardson issued a summons to Giles, in accordance with Mississippi law,² requiring her to show cause why she should not be removed for default in her rental payments. This summons contained the erroneous return date of September 27, 1970 — erroneous in that Mississippi law requires such a summons to be returnable in not less than three or more than five days. On September 25, a default judgment was issued by Richardson against Giles. By October 2, 1968, Giles paid Bailey $40 of her unpaid rents, but did not at that time pay the court costs from the default proceeding. Mississippi law requires the payment of court costs, plus rent, to stay proceedings for the removal of a tenant. Miss.Code, Recompiled § 957. Partridge, on behalf of Bailey, went forward with removal proceedings and on the evening of October 7, 1970, Giles was set out of her apartment.

Partridge testified that he was asked by Giles to speak with her lawyer on the telephone at the time of the eviction. The details of this conversation were excluded from evidence on Giles's objection. After the conversation, the undisputed evidence shows that Partridge and Giles reached an understanding. Giles would pay the court costs of nine dollars incurred in the justice of the peace proceedings, and she would be allowed to return to the apartment. Partridge would return to Giles nine dollars — the exact sum owing as court costs — to pay for the cost of moving her furniture back into the apartment. Partridge wrote a receipt, signed by Giles and himself. Partridge acknowledged receipt of the $9 for court costs and Giles acknowledged receipt of $9 for the cost of moving her furniture back into the apartment. Partridge testified that the nine dollar exchange was made with the mutual understanding that Giles would move back into the apartment and that her moving back "would end the matter completely". Deputy Sheriff Lamburth substantiated this testimony, but Giles herself denied she had agreed to take no further action. On the same evening, October 7, Giles was put back in possession of her apartment and her furniture moved back inside the unit.

At the trial below, the court submitted to the jury only two questions: first, whether the $9 exchange and receipt constituted a binding settlement of Giles's rights against the defendants; and second, whether Giles sustained any damages and in what amount. The court instructed as a matter of law that those defendants acting in official capacities could not be held liable on the facts of the case. The jury returned a verdict in favor of the defendants. On this appeal, Giles raises a number of objections to the action of the trial court, but we find it unnecessary to consider each of those arguments since there was abundant evidence to support the jury's necessary conclusion that the $9 exchange constituted a full settlement of Giles's claims against the private parties defendant.³ The settlement agreement may not have extended to Giles's possible claims against the Justice of the Peace, the Sheriff, and their employees, but the trial court was correct in ruling that those defendants were immune from suit as judicial officers under the circumstances of this case. Pierson v. Ray, 1967, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288; Sullivan v. Kelleher, 1 Cir.1968, 405 F.2d 486; Lockhart v. Hoenstine, 3 Cir.1969, 411 F.2d 455, cert. den. 396 U.S. 941, 90 S.Ct. 378, 24 L.Ed.2d 244; Davis v. McAteer, 8 Cir. 1970, 431 F.2d 81; Gillibeau v. City of Richmond, 9 Cir.1969, 417 F.2d 426.

Affirmed.

1 42 U.S.C. § 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

2 The relevant provisions of the Mississippi Code, Recompiled are as follows:

§ 948. Proceedings against tenant holding over.

A tenant or lessee at will or...