State v. Gaither

• Decision Date: 11 January 1937
• Docket Number: 32391
• Citation: 179 Miss. 64,171 So. 768
• Court: Mississippi Supreme Court
• Parties: STATE, FOR USE OF PATTON, v. GAITHER et al

171 So. 768

179 Miss. 64

STATE, FOR USE OF PATTON, v. GAITHER et al

No. 32391

Supreme Court of Mississippi

January 11, 1937

Division A

JUDGMENT.

Judgment of court that it was without jurisdiction of cause held res judicata of other pleas to its jurisdiction then filed.

HON JAS. A. FINLEY, Chancellor.

APPEAL from the chancery court of Prentiss county HON. JAS. A FINLEY, Chancellor.

Suit between the State, for the use of J. T. Patton, and Eugene Gaither and others. From an adverse judgment, the State appeals. Affirmed.

Affirmed.

Jas. A. Cunningham, of Booneville, for appellant.

Our courts have made it clear that a cause must first be tried on its merits and that the sustaining of a plea to the jurisdiction cannot be set up as an estoppel against the litigants in a subsequent suit.

Parsons-May-Oberschmidt Co. v. Furr, 70 So. 895; 34 C. J., page 795, sec. 1214, pages 774 and 775, sections 1193 and 1194, and page 781, sec. 1200.

In order for an adjudication to constitute an estoppel there must be: (1) identity in the thing sued for; (2) identity in the cause of action; (3) identity of persons and parties to the action; (4) identity of the quality in the person for or against whom the claim is made.

Jones v. George, 89 So. 281; Creegan v. Hyman, 43 So. 954.

The legislative purpose in granting immunity to sheriffs and constables from being sued in circuit courts was to lessen the danger of their being called out of their jurisdictions at times when the people might suffer from lack of police power and law enforcement, and it was founded upon a preservation of public rights, but the Legislature never put it in the letter of the law that deputies should so be held immune, for the reason that every sheriff has the body of the county out of which to select deputies, general deputies and special deputies, and the fact that a deputy might have to go to court cannot in any way affect the public safety in the enjoyment of proper police protection.

Arnett v. Smith, 145 So. 638.

Fred B. Smith, of Ripley, for appellee.

The action of the court in sustaining similar pleas to a former identical suit, between the same real parties, was res adjudicata on the issue of jurisdiction in this cause.

Robertson v. H. Weston Lbr. Co., 124 Miss. 606, 87 So. 120; Blackbourn v. Senatobia Educational Assn., 74 Miss 852, 21 So. 798; 34 C. J. 743, 763, 779, 795, 868, 873 and 874; Adams v. Y. & M. V. R. Co....