State v. Fitzgerald
| Decision Date | 23 January 1899 |
| Citation | 76 Miss. 502,24 So. 872 |
| Court | Mississippi Supreme Court |
| Parties | STATE OF MISSISSIPPI v. FELIX P. FITZGERALD, ADMR |
November 1898
FROM the circuit court, second district, of Coahoma county, HON F. A. MONTGOMERY, Judge.
The state, acting by and through the land commissioner, was the plaintiff in the court below; one Cyrus, presumably the appellee's intestate, and the Yazoo & Mississippi Valley Railroad Co., were original defendants there. The action was replevin for the recovery of cross-ties cut from timber growing on a sixteenth section of land which had been sold for state and county taxes, and purchased by the state before the timber was cut. The other facts appear in the opinion of the court.
Reversed and remanded.
Butt & Butt, for appellant.
The defendant, Cyrus, had pleaded in bar. While the plea in bar was on file, the court allowed Fitzgerald, administrator, to file a plea in abatement. Plaintiff demurred to the plea in abatement, and the court overruled the same, and caused the plaintiff to proceed to trial on the plea in abatement.
Suits can be brought by the land commissioner, in the name of the state, in behalf of the public lands, and for that purpose he may employ attorneys. Code 1892, § 2565. The land commissioner shall protect public lands and cause proper suits to be brought. Code 1892, §§ 2589-2590.
The right by the commissioner, in the name of the state, to sue for trespass upon the sixteenth section lands is clear; the title is in the state; when the land has been leased, and afterwards sold to the state for taxes, the state becomes invested with the remainder of the lease.
No counsel appeared in the supreme court for the appellee.
Cyrus, one of the original defendants, interposed the plea of the general issue at the October term, 1897, of the circuit court, and while this plea remained, and without any suggestion of the death of Cyrus, or any revivor against his representatives, at the succeeding term Fitzgerald, as administrator of Cyrus, filed his plea in abatement, on the ground that the land commissioner had no authority to institute the suit. To this plea in abatement the plaintiff demurred and the demurrer was by the court overruled. The parties then went to a jury on the plea in abatement, and under instruction from the court returned a verdict on that plea in favor of the defendant, and thereupon the suit was by the court dismissed.
Before this, however, an order had been entered dismissing the suit as to the Yazoo & Mississippi Valley Railroad Company, one of the defendants. A...
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