White v. Franklin
| Decision Date | 18 April 1932 |
| Docket Number | 29896 |
| Citation | 165 Miss. 729,140 So. 876 |
| Court | Mississippi Supreme Court |
| Parties | WHITE, STATE AUDITOR, v. FRANKLIN et al |
1 STATES.
State auditor held without authority to institute and prosecute suit to recover moneys deposited in state bank to credit of tax commission.
2. APPEAL AND ERROR.
Case presented on defendants' cross-appeal should not be considered where reviewing court on main appeal determined that plaintiff was not proper party to sue.
3. APPEAL AND ERROR.
Supreme court is not authorized to render advisory opinion to prospective litigants.
APPEAL from circuit court of Hinds county, HON. W. H. POTTER, Judge.
Suit by Carl C. White, state auditor, against Lester C. Franklin and others. A demurrer to defendants' first plea was overruled, while demurrers to other pleas were sustained, and plaintiff appeals and defendants cross-appeal. Affirmed on direct appeal, and cross-appeal dismissed.
Affirmed.
Lotterhos & Travis, of Jackson, for appellant.
Franklin, Easterling & Rosenthal, of Jackson, for appellees.
Argued orally by F. W. Lotterhos, for appellant, and Simon Rosenthal, for appellee.
This case arose in the circuit court on the suit of Carl C. White, as state auditor, to recover certain moneys deposited in a banking institution of the state to the credit of the tax commission, which bank closed its doors pending the time between the deposit of the moneys and the date the tax commission and Lester C. Franklin, chairman thereof, were required by law to report the collection and pay same into the state treasury.
The first plea filed by the appellee Franklin in the lower court challenged the right of Carl C. White, as state auditor, to institute and prosecute this suit. A demurrer was filed to this plea by Carl C. White, which was overruled by the court, and he, thereupon, declined to plead further, and prosecuted this appeal.
This case is ruled, in this behalf, by the case of Carl C. White v. Ben S. Lowry, Insurance Commissioner (Miss.), 162 Miss. 751, 139 So. 874, decided February 29, 1932, and suggestion of error overruled April 11, 1932, and cannot be differentiated from the Lowry case.
We are of the opinion that Carl C. White, as state auditor, was without authority to bring this suit.
To the declaration in the court below were filed several pleas setting up a defense to the action, to which several pleas the state auditor filed demurrers which were sustained. The appellee filed a cross-appeal...
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