text:
    Sharon Anne KING, Plaintiff-Appellee, v. AMERICAN RICE GROWERS EXCHANGE, Defendant-Appellant.
    No. 82-114.
    Court of Appeal of Louisiana, Third Circuit.
    July 21, 1982.
    G. Allen Kimball, of Kimball, McLeod & Dow, Lake Charles, for defendant-appellant.
    Russell T. Tritico, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   DOMENGEAUX, Judge.

This is an appeal from a judgment of the district court which awarded plaintiff, Sharon Anne King, judgment against defendant, American Rice Growers Exchange, for full vacation benefits, penalties and attorney fees under La.R.S. 23:631 and 632. We reverse.

Plaintiff was a secretary for defendant in Lake Charles, Louisiana, and had been working for approximately one year when she resigned on or about June 5, 1981. At that time her accrued unused vacation time amounted to 72 hours or 9 days, and plaintiff’s sick leave taken was 52.5 hours or 6.5 days over the sick leave that she had accrued. Upon termination of plaintiff’s employment, defendant calculated the wages and benefits owed her. In so doing, defendant offset plaintiff’s excess sick leave days against plaintiff’s accrued vacation days, leaving a balance of 2.5 days vacation still owing to plaintiff which was paid to her in compliance with La.R.S. 23:631. Plaintiff filed this suit against her former employer for the unpaid portion of her accrued vacation (i.e., that portion which defendant offset against plaintiff’s excess sick leave) which amounted to $299.97. She contends that defendant’s policy of deducting excess sick leave from accrued vacation is not found in defendant’s personnel manual nor was she informed of such, and therefore the deduction was improperly taken. The district court agreed and held in plaintiff’s favor.

The sole issue presented on appeal is whether or not defendant was entitled to the offset.

In Rowen v. Mel’s, 389 So.2d 893 (La.App. 4th Cir. 1980), writ denied 395 So.2d 811 (La.1980), suit was brought against the defendant clothing store challenging its policy of deducting, from the employee’s last week’s wages, any credit purchases outstanding on the employee’s store account. In that case the court addressed the issue of whether or not an employer could offset money owed it on account from the employee’s final paycheck as follows:

“C.C. arts. 2207, 2208, and 2209 provide in essence that compensation takes place between two persons who are mutually indebted to the other whereby the debts are extinguished, provided that the debts are ‘equally liquidated and demandable.’
On the question of whether the respective obligations, i.e. the duty of the employer to pay final wages and the contractual obligation of the employee to liquidate his account out of final wages, meet the requirements for compensation under the articles of the Civil Code, we find they do. The sums involved here are for fixed amounts, known to both parties, and are equally demandable.
Plaintiffs argues that R.S. 23:631 and 632 are special statutes dealing with a particular subject and therefore supersede the general articles of the Code pertaining to the extinguishment of debts by compensation. Accordingly, plaintiffs submit that defendant as any other creditor should ‘have proceeded via collection proceedings’ and that they were entitled to their wages under the statute. We disagree. Under the particular facts of this case we find nothing repugnant in the requirement of the instant employer for an employee to satisfy his account out of his last week’s wages, particularly where the employee has knowledge of the requirement and enjoys the advantages of special discounts.”

In the case at bar plaintiff contends that defendant’s policy to offset was not made known to her until her employment terminated, and as such this “unwritten policy” was in derogation of La.R.S. 23:631. We disagree.

Although defendant did not specifically spell out the manner in which it was to recover or handle sick leave taken in excess of that accrued, the Exchange’s personnel manual clearly establishes that employees were entitled only to ten days of paid sick leave per year. It only follows that any sick leave taken beyond that accrued must be without pay. In this case, plaintiff took 6.5 days of sick leave, with pay, over that which she had accrued. Here as in Rowen, supra, we find that the sums involved are for fixed amounts ($46.15 per day), known to both parties, and equally demandable. Accordingly, we think that defendant was entitled to offset plaintiff’s inordinate sick leave days against her accrued vacation leave.

Inasmuch as we have found that defendant was justified in his actions we need not address the issue of penalties and attorney fees provided for in La.R.S. 23:632.

For the above and foregoing reasons the judgment of the district court is reversed, and it is hereby Ordered, Adjudged, and Decreed that there be judgment herein in favor of defendant, American Rice Growers Exchange, and against plaintiff, Sharon Anne King, dismissing plaintiff’s suit at her costs.

REVERSED AND RENDERED.

      . The judgment below awards plaintiff $299.97 in unpaid vacation leave, $4,153.00 in statutory penalties, and $700.00 in attorney fees.

      . La.R.S. 23:631 provides generally that an employer must pay an employee the amount due under the terms of employment within three days after termination of the employment, and La.R.S. 23:632 provides for certain penalties and attorney fees in the event the employer fails or refuses to comply with the provisions of La.R.S. 23:631.

      .Defendant’s personnel manual provides that permanent employees with less than one year’s service earn vacation leave at a rate of /cths of a day after each month of employment.

      .Under the provisions of defendant’s personnel manual, each employee accrues sick leave after the first three months of employment at the rate of one working day per month to a maximum of ten working days each year. All unused sick leave days that are not used during the current year may be carried forward to the next year.

      . Plaintiff’s salary per day $46.15 for 6.5 days = $299.97.

      . Ibid 3.


source: Caselaw Access Project

license: Public Domain

text:
    Sandra Hollingsworth PHILLIPS, Dependent of George T. Hollingsworth, Dec’d. v. TRI-STATE MOTOR TRANSIT CO. and Transport Ins. Co.
    No. 53639.
    Supreme Court of Mississippi.
    Aug. 4, 1978.
    Donald R. Rogers, Lawrence D. Arring-ton, Hattiesburg, for appellant.
    Butler, Snow, O’Mara, Stevens & Canna-da, Dan McCullen, Jackson, for appellees.
   Appeal from Circuit Court, Grenada County; Niles McNeel, Judge.

Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.

AFFIRMED.


text:
    Robert Charles CURLEE v. STATE of Mississippi.
    No. 53253.
    Supreme Court of Mississippi.
    July 21, 1982.
    W. Jett Wilson, Wilson & Hinton, Corinth, for appellant.
    Bill Allain, Atty. Gen. by Karen A. Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Alcorn County; Fred Wicker, Judge.

Before SUGG, P. J., and HAWKINS and DAN M. LEE, JJ.

AFFIRMED.

PATTERSON, C. J., WALKER, P. J., and BROOM, ROY NOBLE LEE and BOWLING, JJ., concur.

PRATHER, J., took no part.


text:
    Dannell J. BOYD v. Martha BOYD.
    No. 53575.
    Supreme Court of Mississippi.
    July 21, 1982.
    Keith Starrett, Magnolia, for appellant.
    John Gordon Roach, Jr., Roach, McMillan, Welch & Ott, McComb, for appellee.
   Appeal from Chancery Court, Pike County; Bert H. Jones, Chancellor.

Before SUGG, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

PATTERSON, C. J., WALKER, P. J., and ROY NOBLE LEE, BOWLING, and DAN M. LEE, JJ., concur.

PRATHER, J., took no part.


text:
    GEORGIA-PACIFIC CORPORATION v. Nancy FERGUSON.
    No. 53305.
    Supreme Court of Mississippi.
    July 21, 1982.
    James C. Mayo, Fair & Mayo, Louisville, for appellant.
    Michael H. Steele, Crawley & Ford, Kosciusko, for appellee.
   Appeal from Circuit Court, Winston County; Niles McNeel, Judge.

Before WALKER, P. J., and ROY NOBLE LEE and BROOM, JJ.

AFFIRMED.


text:
    Daniel M. GILL v. Verna Manning Gill BROOKS.
    No. 53338.
    Supreme Court of Mississippi.
    July 21, 1982.
    Richard J. Lee, Wilroy & Lee, Hernando, for appellant.
    Robert J. Kelly, Hernando, for appellee.
   Appeal from Chancery Court, DeSoto County; Dennis M. Baker, Chancellor.

Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.

AFFIRMED IN PART; REVERSED IN PART.

SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE and HAWKINS, JJ., concur.

PRATHER, J., took no part.


author: DAN M. LEE, Justice,

text:
    Clarence Grady DUNCAN v. Paula Leggett DUNCAN.
    No. 53294.
    Supreme Court of Mississippi.
    July 21, 1982.

      Michael Adelman, Andalman, Adelman & Steiner, Hattiesburg, for appellant.
    Karl W. Kepper, Kepper & Kepper, Hat-tiesburg, for appellee.
    Before PATTERSON, C. J., and WALKER and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of Forrest County wherein Paula Leggett Duncan, petitioner/appellee, filed her petition for citation for contempt and petition to modify a previous divorce decree against her former husband, Clarence Grady Duncan, respondent/appellant. Clarence Duncan failed to file an answer to the petition or make an appearance. Therefore, the chancellor granted the relief prayed for in Paula Duncan’s petition and also ordered Clarence Duncan confined to jail until all child support arrearage due at the time of the final decree was paid unto Paula Duncan.

The parties to this appeal were divorced on March 12, 1980, by a decree of the Chancery Court of Forrest County. Appellee was awarded custody of the parties’ minor child with reasonable visitation rights granted to the appellant. The decree further provided that appellant pay unto ap-pellee, through the chancery clerk’s office, $150 per month as child support until the minor child reached twenty-one years of age, or married, or otherwise became emancipated.

On February 26, 1981, appellee filed a petition for citation for contempt and petition to modify the previous divorce decree as to visitation rights only. Appellee, in her petition, alleged that appellant was $450 in arrears.

Appellant was personally served with process but failed to answer appellee’s petition. On May 14, 1981, the chancellor entered his decree adjudging appellant in contempt of court. Appellant was ordered confined to jail until he paid appellee $900 in delinquent child support payments as well as $200 in attorney’s fees. Visitation rights were also modified somewhat. However, they are not at issue on appeal.

I. Did the chancellor err in committing appellant to jail?

Appellant contends the chancellor erred in confining him to jail because appellee failed to allege or offer proof to the effect that appellant was able to abide by the former decree of divorce.

In Collins v. Collins, 171 Miss. 891, 158 So. 914 (1935), this Court stated:

The introduction of the decree ordering the appellant to pay a stipulated monthly sum for the support and maintenance of his child, together with proof that he had failed to comply with the decree, placed him prima facie in contempt of court, and devolved on him the burden of proving his inability to make the payments directed. Ramsay v. Ramsay, 125 Miss. 185, 87 So. 491, 14 A.L.R. 712.... (171 Miss, at 895, 158 So. at 915)

Where a party is unable to comply with a divorce decree, he should with reasonable promptitude, make the fact known to the court by proper petition and have the decree modified or suspended, and not wait until he has been cited for contempt. If a party fails to take this course of action, he will, in response to the citation for contempt, be required to make out a clear case of inability. Redding v. Redding, 167 Miss. 780, 150 So. 780 (1933). The burden was on appellant to purge himself of the contempt by showing that he had complied with the decree, was unable to do so, or impossibility of performance. Rainwater v. Rainwater, 236 Miss. 412, 110 So.2d 608 (1959). There is no merit in this argument.

II. Did the chancellor err in ordering payment of delinquent child support in a sum greater than that alleged in appel-lee’s petition?

Appellee filed her petition on February 2, 1981, alleging an arrearage of child support payments of $450. The final decree in the cause was entered May 14,1981, and adjudicated appellant in arrearage in the amount of $900.

In Seymore v. Greater Mississippi Life Insurance Co., 362 So.2d 611 (Miss.1978), we stated:

The issues are framed, formed and bounded by the pleadings of the litigants. The Court is limited to the issues raised in the pleadings and the proof contained in the record. Judge Griffith, in his monumental work on Mississippi Chancery Practice, gave these sound reasons why it must be so:
“Courts do not instigate or initiate civil litigation. They act only when called on for aid, and only in respect to that which is within the call. The potentiality of a court to consider and determine a given class of cases over which it has jurisdiction is made actual, in a particular case within that class, only when a party entitled to relief with respect thereto has applied to the court by his written pleading and even then his written application must state the facts upon which it is based or else it will still be ineffectual to actuate the court to grant any relief. The power of the court, then, will be exerted only upon, and will not move beyond, the scope of the cause as presented by the pleadings, for the pleadings are the means that the law has provided by which the parties may state to the court what it is they ask of the court and the facts upon which they ask it; and proof is received and is considered only as to those matters of fact that are put in issue by the pleadings, and never beyond or outside of them. If the rule were otherwise courts could become the originators instead of the settlers of litigious disputes, and parties would never know definitely what they will be required to meet or how to meet it.” Griffith, Mississippi Chancery Practice (Second Edition 1950), § 564, pp. 586-87. (Emphasis added). In 89 C.J.S. Trial, § 633b, at page 464 (1955), we find this language:
“The findings when compared with the pleadings must be within the issues and be responsive thereto, and must cover the material issues raised by the pleadings, and this is required whether or not evidence is introduced on such issues. It is improper to make findings outside the scope of the issues made by the pleadings; and where such findings are made, they are nugatory and cannot support conclusions of law or the judgment; they must be disregarded or treated as immaterial.”

76 Am.Jur.2d, Trial, § 1264, at page 215 (1975), says:

“The findings of fact made by the court.should respond to and be within the issues,.and a finding outside the issues cannot be considered in determining whether the judgment is supported by the findings.” (362 So.2d at 614 — 15) (emphasis ours).

Appellee is bound by her pleadings. The chancellor had no authority to award appel-lee a greater amount than that prayed for in her petition. Had appellee desired a judgment for the amount of child support in arrearage which had occurred between the filing of her petition for contempt and the entry of the final judgment, an amendment to her petition would have sufficed. However, this was not done and the chancellor was therefore confined to the amount alleged in her petition.

Because appellee prayed for only $450 in her petition and specific prayer for relief, the remaining $450 adjudicated by the decree to be owed by appellant for past-due child support payments is stricken therefrom as being outside the scope of the pleadings. However, this is not to say that appellee may not recover other monies due from appellant which become delinquent upon proper petition and showing to the court.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING and HAWKJNS, JJ., concur.

PRATHER, J., took no part.


author: HAWKINS, Justice,

text:
    J. T. BLACK v. Katharine S. WILLIAMS.
    No. 53296.
    Supreme Court of Mississippi.
    July 21, 1982.
    Arnold F. Gwin, Lott, Sanders, Gwin & Fonda, Greenwood, for appellant.
    William E. Suddath, Jr., Watkins & Eager, Jackson, for appellee.
    Before SUGG, P. J., and BROOM and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

J. T. Black appeals from a final decree of the Chancery Court of the First Judicial District of Carroll County enjoining him from using that portion of a drainage district lake over realty belonging to Mrs. Katharine S. Williams. We affirm.

In 1965, pursuant to an easement authorizing it to do so, the Big Sand Drainage District erected a flood retarding dam, which subsequently formed a lake of 125.3 acres. Mrs. Elizabeth G. Saunders, the mother and predecessor in title of Mrs. Williams, owned 110.9 acres of the land beneath the lake. Mr. Black acquired title to property adjoining Mrs. Williams, 14.4 acres of which formed a portion of the lake bed in the Northwest part. There was nothing in the easement granted the drainage district by the landowners which altered or restricted any of their rights of ownership except in controlling the flow of water.

Over the objections of Mrs. Williams, Mr. Black claimed the right to use that portion of the lake over the land of Mrs. Williams. The boundary between the two areas had been marked by posts.

In a suit to remove the cloud thus constituted on her title and enjoin Mr. Black from using the portion of the lake over her land, the chancery court cancelled all claim of Mr. Black thereto and permanently enjoined him from entering on the part of the lake over the land of Mrs. Williams.

We are not confronted in this case with the rights of users of public waterways, as defined by Miss.Code Ann. § 51-1-4 (Supp. 1981), or referred to in Downes v. Crosby Chemicals, Inc., 234 So.2d 916 (Miss.1970), a case decided by this Court before the enactment of this statute.

Also, an examination of State Game and Fish Commission v. Louis Fritz Co., 187 Miss. 539, 193 So. 9 (1940), reveals it has minimal application to the question presented here. That case involved the right of the State, acting under a statute, to remove undesirable fish and turtles from South Horn Lake, a natural lake connected to the Mississippi River by a pass or outlet, which outlet was twenty to forty feet wide, four to ten feet deep, navigable in all seasons by rowboats, and through which fish migrated.

The sole question before us on this appeal is the right, if any, of Mr. Black to go upon this constructed lake beyond the boundaries of the land owned by him. We address only the rights of owners of land beneath “artificial” or “man-made” lakes.

This precise question has never been presented to this Court. In other jurisdictions, however, the majority rule is that owners of the fee in the land beneath such a lake, in the absence of some statute or covenant or agreement to the contrary, have exclusive control over the water over their respective portions. We adopt the majority rule existing in other states, and hold Mr. Black has no right to travel or make any entry on this lake beyond the boundaries of his own land. The chancellor so found in a well reasoned opinion, and we affirm. See Wickouski v. Swift, 203 Va. 467, 124 S.E.2d 892 (1962); Baker v. Norma-noch Ass’n., Inc., 25 N.J. 407, 136 A.2d 645 (1957).

AFFIRMED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, BOWLING and DAN M. LEE, JJ., concur.

ROY NOBLE LEE and PRATHER, JJ., take no part.


author: SUGG, Presiding Justice, HAWKINS, Justice, specially

text:
    Carol S. AYERS and Richard J. Ayers v. J. Michael PETRO.
    No. 53181.
    Supreme Court of Mississippi.
    July 21, 1982.

      George M. Quin, Gulfport, for appellants.
    Herbert W. Wilson, Gulfport, for appel-lee.
    Before SUGG, P. J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   SUGG, Presiding Justice,

for the Court:

The principal question in this case is whether a deed to a husband and wife conveying the property to them, “as joint tenants, not as tenants in common, but with the right of survivorship in each upon the death of either,” created a joint tenancy or a tenancy by entirety.

This appeal is from a decision of the Chancery Court of the First Judicial District of Harrison County, Honorable Jason Floyd, Jr. presiding, granting appellee’s petition to sell real property for a division of proceeds. We affirm.

The facts are not in dispute. Steven K. Streetman and wife, Carol S. Streetman purchased the property from Hubert J. Pickle and wife, Faye Pickle on September 25, 1978. The deed conveyed the property to the Streetmans “As joint tenants, not as tenants in common, but with the right of survivorship in each upon the death of either . ... ” On the same date the Street-mans executed a deed of trust to the Pickles for the balance of the purchase price of the property in the amount of $4,500. Subsequently the Streetmans were divorced and Carol Streetman married Richard J. Ayers before June, 1980.

On June 30, 1980, the property was sold by the trustee at a foreclosure sale to Richard J. Ayers and wife, Carol S. Ayers for $4,417.52, “As joint tenants, not as tenants in common, but with the rights of survivor-ship in each.... ” On September 5, 1980, Steven K. Streetman conveyed the property to appellee, J. Michael Petro, by a quitclaim deed. The quitclaim deed purported to convey the entire title to Petro, but of course, operated only as a conveyance of Street-man’s undivided one-half interest. Petro claims only Streetman’s interest in the property.

Appellants argue that the deed from Pickle to the Streetmans, (1) created an estate by entirety in the Streetmans who were then husband and wife, (2) Streetman could not destroy the tenancy by the entire-ties by conveying his interest to Petro, and (3) the purchase of the property by appellants at a trustee’s sale did not inure to the benefit of Streetman.

I

At the outset it is necessary to note the similarity and the difference between estates in joint tenancy and estates by entirety. This is clearly stated in 41 C.J.S., Husband and Wife, section 33(b) as follows:

An estate by entirety is sometimes regarded as a species of, or modified form of, joint tenancy, the modification being rendered necessary by the common-law theory that husband and wife are but one person. The unities of time, title, interest, and possession are common to both estates but in an estate by entirety there is an additional unity, namely, that of person. Strictly speaking, a tenancy by entirety is not a joint tenancy but is a sole tenancy, and, while the two estates resemble each other and possess some qualities in common, yet they differ both in form and substance and are distinguishable, and it has been said that the disfavor with which the courts look on joint tenancies does not extend to estates by entirety. The seizin of the tenants distinguishes the two estates, and a marked, and perhaps the principal, distinction lies in the possibility of severance and destruction.

An estate by entirety may exist only in a husband and wife and may not be terminated by the unilateral action of one of them because they take by the entireties and not by moieties. While the marriage exists, neither husband nor wife can sever this title so as to defeat or prejudice the right of survivorship in the other, and a conveyance executed by only one of them does not pass title. Cuevas v. Cuevas, 191 So.2d 843 (Miss.1966); McDuff v. Beauchamp, 50 Miss. 531 (1874); Hemingway v. Scales, 42 Miss. 1 (1868)

Conversely a joint tenancy may be destroyed by one of the joint tenants conveying his undivided interest. This was expressed in Richardson v. Miller, 48 Miss. 311 (1873) in the following language:

Joint tenancy is created by the same instrument, a will or a deed, and must have a unity of title and interest, as to nature, duration and quantity. Each tenant is seized of the whole and of every part; each may exercise all reasonable acts of ownership. Litt. 288; Co. Litt. 186; 4 Kent Com. 394
The estate is destroyed by breaking up any of its constituent unities. If there be three tenants, and one convey his undivided interest to F., he becomes tenant in common with the other two, who as to each other remain joint tenants. Litt. 292, 294. The distinguishing feature of this estate was the right of survivorship, which could not be defeated by a devise by one tenant of his interest, unless the devisor survived, and then only by a republication of the will after survivorship had accrued. Co. Litt. 186 b. (48 Miss, at 333, 334)

Accord, Hemingway v. Scales, supra.

Where a husband and wife own property as tenants by entirety, the property is held by them as joint tenants following a divorce. In Shepherd v. Shepherd, 336 So.2d 497 (Miss.1976) we held that an estate by entirety would not become an estate in common following a divorce of the parties but the parties would hold the property as joint tenants with the right of sur-vivorship.

In the case before us the conveyance was to husband and wife as an estate in entirety with the right of survivorship. An estate in entirety is a joint tenancy with the right of survivorship plus the marital relation. If it can be said that after the dissolution of the marriage the parties could no longer be tenants by the entirety, they certainly remained joint tenants with the right of survivorship. The dissolution of the marital relation under the statute as now written did not destroy the joint tenancy with the right of survivorship. The parties continued to own the property as joint tenants with the right of survivorship until the death of Fannie Shepherd. (336 So.2d at 499)

II

The Streetmans’ deed to the property recited that it was conveyed to them, “as joint tenants, not as tenants in common, but with the rights of survivorship in each upon death of either.” Despite the unambiguous language creating a joint tenancy, appellants argue that the deed created an estate by entirety. Appellants’ argument is based on the common law rule that the same deed, which would create an estate in joint tenancy in other persons, make a husband and wife tenants of the entirety. Wolfe v. Wolfe, 207 Miss. 480, 42 So.2d 438 (1949); McDuff v. Beauchamp, 50 Miss. 531, (1874); Hemingway v. Scales, 42 Miss. 1 (1868); Sale v. Saunders, 24 Miss. 24 (1852).

The common law rule stated in Wolfe, McDuff, Hemingway, and Sale was changed in 1880 by the amendment to Art. 18, Code 1857 and by the removal of disabilities of coverture of married women.

The effect of the statutes was discussed in Conn v. Boutwell, 101 Miss. 353, 58 So. 105 (1911) where this Court held that a (conveyance to a husband and wife created art estate in common rather than an estate by entirety. In Conn the Court stated:

Section 2770 of the Code of 1906, which has been the law in this state since the adoption of the Code of 1880, is as follows: “All conveyances or devises of land made to two or more persons, or to a husband and wife, shall be construed to create estates in common, and not in joint tenancy or entirety, unless it manifestly appears, from the tenor of the instrument that it was intended to create an estate in joint tenancy or entirety with the right of survivorship; but this provision shall not apply to mortgages or devises, or conveyances made in trust.” Prior to 1880 the statutory law in force in this state was the same as the above-quoted statute, except there was omitted from the statute the expression “or to a husband and wife;” in other words, prior to 1880 the statute read as follows: “All conveyances or devises of lands made to two or more persons, shall be construed to create estates in common,” etc. Rev.Code 1857, ch. 36, art. 18. The question is presented, for the first time in this court, whether under this statute a conveyance to a husband and wife created an estate in common, or in joint tenancy, or in entirety.
In Hemingway v. Scales, 42 Miss. 1, 97 Am.Dec. 425, 2 Am.Rep. 586, this court, in construing this statute, says that its evident purpose was to abolish the jus ac-crescendi, the right of survivorship, the distinguishing feature of joint tenancy, so that the estate of a joint tenant, upon his death, might descend to his heirs as in case of tenancy in common. It merely converted a joint tenancy into tenancy in common. It made no change in the law in regard to the estate of husband and wife, which, as was pointed out, is a very different estate from that of joint tenancy; and consequently the court held that the statute did not apply to conveyances to husband and wife, which in legal-construction, by reason of the unity of husband and wife, are not strictly joint tenancies, but conveyances to one person, the court saying that husband and wife are seised of the entirety, and the survivor takes the whole, and during their joint lives neither of them can alien so as to bind the other. This principle was reaffirmed in McDuff v. Beauchamp, 50 Miss. 531, wherein it is held that under the statute of 1857 a conveyance to a husband and wife jointly created an estate of entirety. It does not make them joint tenants or tenants in common. Both are seised of the entirety, and have none of the incidents of cotenancy. This decision was rendered in 1874, and when the disabilities of coverture were removed by the legislature in 1880, in order to change the effect of conveyances when made to husband and wife, as announced by this court in the authorities hereinbefore cited, there was inserted in the statute (Rev. Code, 1880, section 1197) for the first time the clause “or to a husband and wife;” the manifest object and purpose of this amendment being to place husband and wife upon the same footing relative to conveyances or devises of lands as other persons. (101 Miss, at 356, 357, 58 So. at 106)

Conn holds that, after the legislature removed the disabilities of coverture in 1880, and amended Article 18 of the Revised Code of 1857 by including the clause “or to a husband and wife,” a husband and wife are in the same position as other persons relative to conveyances or devises of lands. We therefore hold that section 89-1-7 Mississippi Code Annotated (1972), the current version of section 1197 Revised Code of 1880, authorizes a husband and wife to hold land either as tenants in common, as joint tenants, or as tenants by entirety. The deed to the Streetmans specifically created a joint tenancy.

Ill

Appellants also contend that the trial court erred in holding that the purchase of the property at the foreclosure sale by them inured to the benefit of Streetman, a cotenant of the appellant, Mrs. Ayers. This question was answered contrary to appellant’s contention in Beaman v. Beaman, 90 Miss. 762, 44 So. 987 (1907) in the following language:

Without especial consideration in detail of the various grounds of demurrer so ably argued, it is plain that appellant’s case is without life if Mrs. Loanna Bea-man, wife of Charles Beaman, could not buy, either for cash or on credit, at the sale by the trustee in the trust deed of Alexander Beaman, the ancestor. Charles Beaman was a cotenant, and, with his wife, was in actual possession of the land when his father died and when the trustee sold and she bought. If he had bought, the purchase, subject to what he paid in satisfaction of his father’s debt, would plainly have inured to the benefit of all the cotenants, and himself as one of them. Smith v. McWhorter, 74 Miss. 400, 20 South. 870; Walker v. Williams, 84 Miss. 392, 36 South. 450; Wyatt v. Wyatt, 81 Miss. 219, 32 South. 317. The inability of a cotenant to buy for himself or herself is based on grounds of public policy. On the same grounds of public policy, the husband or wife cannot so purchase. Robinson v. Lewis, 68 Miss. 69, 8 South. 258, 10 L.R.A. 101, 24 Am.St. Rep. 254; Clark v. Rainey, 72 Miss. 151, 16 South. 499; Hamblet v. Harrison, 80 Miss. 118, 31 South. 580. (90 Miss, at 765, 766, 44 So. at 987)

We therefore hold that the purchase of the property by appellants at the foreclosure sale inured to the benefit of Street-man.

IV

After appellant purchased the property at the foreclosure sale, Streetman conveyed the property to J. Michael Petro by quitclaim deed. Under the rule announced in Richardson v. Miller, supra, and Hemingway v. Scales, supra, Streetman, as a joint tenant, could convey his undivided interest and thus destroy the joint tenancy that formerly existed between him and his ex-wife.

The trial court required Petro, within 15 days, to pay into the registry of the court $2,208.76, which represented one-half of the amount paid by appellants when they purchased the property at the foreclosure sale. We therefore affirm and remand to the trial court for the entry of an order directing the sale of the property and a division of the proceeds. After payment of the expenses of sale the proceeds shall be divided; one-half to appellants and one-half to appellee.

AFFIRMED AND REMANDED.

PATTERSON, C. J., WALKER, P. J., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

HAWKINS, J., specially concurs.

PRATHER, J., took no part.

HAWKINS, Justice, specially

concurring:

I concur in the result reached in this case, on the issue raised on appeal.

I am troubled by our holding in Shepherd v. Shepherd, 336 So.2d 497 (Miss.1976); in my view, we should have adopted the holding of the majority of the jurisdictions that husbands and wives who own property as tenants in the entirety or as joint tenants with the right of survivorship, by virtue of a decree of divorce, thereafter own the same property as tenants in common. I certainly believe the chancery court should have the power in a divorce action, where one of the parties prays specifically for such relief, to decree along with the divorce that property theretofore owned by the parties as tenants in the entirety or as joint tenants with right of survivorship should thereafter be owned as tenants in common. The chancery court in such a case is not simply dealing with one spouse’s property, but with their joint property. I do not read Shepherd as depriving the chancery court of this power, however.

      . Of historical interest about cases appearing in 42 Miss.Reports is the following quotation from Lusby v. Railroad Co., 73 Miss. 360, 19 So. 239 (1895).
      Perhaps the case most cited for the false view is that of Railroad Co. v. Devaney, in the book entitled 42 Miss.Rep. [555], The case has no binding authority upon us, nor does the doctrine of stare decisis have any application in the case referred to, nor in any other case found in the so-called 42 Miss. The opinions found in that volume are the utterances of a tribunal appointed by the military satrap who then ruled in a prostrate commonwealth, and have no other binding authority upon us than that each case therein must be regarded as res adjudicata.

      . Our holding in Shepherd is contrary to the weight of authority. 41 Am.Jur., Husband and Wife, par. 106, p. 106, 59 A.L.R. 718 and 52 A.L.R. 890. It is generally held that a decree of divorce severs an estate by the entireties and makes the divorced spouses tenants in common. Although not expressed in our opinion in Shepherd, the reason for our holding is that only the unity of person is destroyed by the divorce, leaving intact the unities of time, title, interest and possession.

      . Now Section 89-1-7 Mississippi Code Annotated (1972).


author: PATTERSON, Chief Justice,

text:
    Vivian Mills REYNOLDS v. Juanice B. DRUETTA, et al.
    No. 53304.
    Supreme Court of Mississippi.
    July 21, 1982.
    J. Walter Brown, Jr., Joseph S. Zuccaro, Natchez, for appellant.
    John T. Green, Stratton Bull, Jr., Natchez, for appellees.
    Before PATTERSON, C. J., WALKER, P. J., and DAN M. LEE, J.
   PATTERSON, Chief Justice,

for the Court:

This suit is for the specific performance of an option to purchase real estate. William J. Druetta and others entered into a lease agreement with M. C. Reynolds on October 16, 1975, for a primary term of ten years, February 1,1976 to February 1,1986. On May 2,1977 M. C. Reynolds was released from the contract and his wife, Vivian Mills Reynolds, was assigned his rights under the lease.

The only issue presented is the interpretation of paragraph six of the option which states in pertinent part:

Lessee is hereby given the option to purchase the leased property owned by Lessors at the end of the fifth year of the primary term at a price of $85,000.00 in cash. Such option shall be exercised by written notice to Lessors not more than 120 days before the end of the fourth year of primary lease period.

Lessee gave written notice to each lessor of her intention to exercise the option to purchase by letters dated July 29,1980, and August 5, 1980. Despite this notice the lessors refused to abide by the purchase contract believing the time to exercise the option terminated at the end of the fourth year, January 31, 1980.

Thereupon lessee brought this suit for specific performance in the Chancery Court of Adams County. The evidence offered by complainant was the lease contract, letters to the lessors expressing the intention to exercise the option, as well as discovery depositions of four of the seven appellees. At the conclusion of the evidence, the chancellor dismissed appellant’s complaint ratiocinating that the terms of paragraph six could not be exercised prior to 120 days before the end of the fourth year, October 3,1979, nor could it be exercised after February 1, 1980, but was viable only between October 3,1979, and January 31, 1980. The chancellor therefore held lessee’s exercise of the option after January 31, 1980 was ineffective because it was not within the above time frame. Aggrieved, lessee appeals.

The interpretation of paragraph six is before this Court, not on conflicting facts, but whether the chancellor erred as a matter of law in his interpretation. Of prime import is the final date on which appellant had the right to exercise the option of purchase.

The contract granted lessee the option “to purchase the leased property owned by lessors at the end of the fifth year of the primary term at a price of $85,000.00 in cash. Such option shall be exercised by written notice to lessors not more than 120 days before the end of the fourth year of the primary lease term.” (Emphasis added). Appellant contends her notice given on July 29, 1980 and again on August 5, 1980 was timely.

The plain and simple meaning of the language “not more than 120 days before the end of the fourth year”, in our opinion, clearly enunciates that the lessee’s right under the option did not ripen until October 3, 1979. We also observe that there is no language in paragraph six to indicate the option to purchase expired at the end of the fourth year. On the contrary, the language, “Lessee is hereby given the option to purchase the leased property ... at the end of the fifth year”, indicates the option would terminate at the end of the fifth year of the primary term. Therefore, when the chancellor inserted an expiration date of January 31, 1980, he rewrote the contract. In our opinion this was beyond the province of the trial court. See Koch v. H & S Development Company, 249 Miss. 590, 163 So.2d 710 (1964); Williams v. Batson, 186 Miss. 248, 187 So. 236 (1939).

We have stated many times that a contract should be construed as written and words should be given their ordinary and properly accepted meaning when they are unambiguous. E.g., Malsbury v. State Highway Comm., 248 Miss. 872, 161 So.2d 649 (1964); Roberts v. Corum, 236 Miss. 809, 112 So.2d 550 (1959); Miller v. Fowler, 200 Miss. 776, 28 So.2d 837 (1947). In our opinion, Paragraph six granted appellant until the end of the fifth year of the primary term (January 31, 1981) to exercise the option, which she did by her letters of July 29, 1980, and August 5, 1980.

When a motion to dismiss is erroneously sustained at the conclusion of the complainant’s case, this court should remand the case. Partee v. Pepple, 197 Miss. 486, 20 So.2d 73 (1944). Therefore, the case is remanded so the lessors may present the other defenses asserted in their answer if they desire.

Although lessee seeks attorneys fees, the contract did not specifically authorize such and neither are they authorized by statute. Therefore, Christiansen v. Griffin, 398 So.2d 213 (Miss.1981), has application and attorneys fees are denied.

REVERSED AND REMANDED.

SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

PRATHER, J., takes no part.


text:
    J. Ed TURNER v. ESTATE OF Elizabeth P. HIGHTOWER, Deceased, Elizabeth H. Austin, Executrix.
    No. 53328.
    Supreme Court of Mississippi.
    July 28, 1982.
    Thomas E. Schwartz, Moore, Jones & Schwartz, Hattiesburg, for appellant.
    Dave A. Matison, III, Zachary & Zachary, Hattiesburg, for appellee.
    Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of Forrest County wherein J. Ed Turner, petitioner/appellant, filed a petition to modify a decree approving a supplemental final accounting and authorizing a sale of real property for the estate of Elizabeth P. Hightower, deceased. The basis of Turner’s petition evolved from a contract entered into between Turner and Elizabeth

H. Austin, respondent/appellee, whereby Austin agreed to sell and convey the property to Turner after the probate of Elizabeth P. Hightower’s last will and testament and title vested in Austin. Austin, as executrix of Hightower’s estate, further agreed to protect the rights of Turner by all legal methods. From a decree sustaining both a special demurrer and general demurrer to Turner’s petition, Turner prosecutes this appeal. We affirm.

On January 20, 1977, appellee agreed to sell and convey the following described property to appellant:

One (1) thirty (30) acre tract of land which shall be one-half (V2) of a sixty (60) acre tract of land located in Forrest County, Mississippi, and described as the NW'/4 SE1/. and the NVfe SWVi SEV4 of § 15, Township 2N, Range 13 West, Forrest County, Mississippi, with the said sixty acre tract being more particularly described in the certain deed located in Book 200 at Page 399 of the Land Deed Records in the Office of the Chancery Clerk, Forrest County, Mississippi.

Pursuant to the agreement, appellee agreed to proceed immediately to probate the last will and testament of Elizabeth P. Hightower, as executrix, and protect the rights of appellant by all legal methods. Appellant, in consideration of the agreement, paid appellee $3750. Upon receiving title to any thirty acres of the sixty-acre tract, appellee agreed to execute a warranty deed to Turner for an additional $3750. If appellee received title to the entire sixty-acre tract, appellee agreed to convey the other thirty-acre tract to appellant for the additional sum of $7500. The contract referred to the will and a copy was attached thereto. Said contract is copied in full as follows:

STATE OF MISSISSIPPI COUNTY OF FORREST
AGREEMENT
For and in consideration of the sum of $3,750.00, cash in hand paid, and the receipt and sufficiency of which is hereby acknowledged, I, Elizabeth Hightower Austin, hereinafter referred to as grant- or, hereby contract and agree to sell and convey, subject to the following terms and conditions, unto J. Ed Turner, hereinafter referred to as the grantee, the following described property:
One (1) thirty (30) acre tract of land which shall be one-half (V2) of a sixty (60) acre tract of land located in Forrest County, Mississippi, and described as the NW‘/( SEV4 and the NVzSWVi SE^ of § 15, Township 2N, Range 13 West, Forrest County, Mississippi, with the said sixty acre tract being more particularly described in the certain deed located in Book 200 at Page 399 of the Land Deed Records in the Office of the Chancery Clerk, Forrest County, Mississippi.

This contract and agreement is subject to the following terms and conditions;

1. The title to the said thirty acres of the sixty acres being transferred to the grantor herein by the probate of that certain Last Will and Testament of Elizabeth P. Hightower, deceased, by the Chancery Court of Forrest County, Mississippi. Grantor hereby agrees to proceed immediately to probate said Will and Testament as the Executrix thereof, and agrees to protect the rights of grantee herein by all methods legal. A copy of the above described Will and Testament is attached hereto.

2. Immediately after grantor herein receives title to any thirty of the sixty acres described, she shall, upon the payment by grantee to grantor of the additional sum of $3750.00, execute a warranty deed of said thirty acres to grantee herein.

3. It is understood and agreed that should the grantor herein receive title to any thirty acres of the sixty acres described by any other procedure than that described in 1. above, then the grantor shall convey title to thirty of said acres to grantee for the above described additional sum of $3,750.00.

4. It is further understood and agreed that should the grantor herein receive title to the entire sixty acres of the sixty acres, she shall, immediately after receiving said title, convey title to the grantee herein in exchange for payment from grantee to grantor of the sum of $7,500.00, which shall be in addition to payments described.

5. It is understood and agreed that the grantor shall retain one-half (Vi) of all mineral rights in and to each of the acres which she conveys to grantee under the terms of this agreement.

WITNESS our signatures on this the 20th day of January, 1977.

/s/ Mrs. Elizabeth H. Austin ELIZABETH HIGHTOWER AUSTIN /s/ J. Ed Turner

J. ED TURNER STATE OF MISSISSIPPI COUNTY OF FORREST

PERSONALLY came and appeared before me, the undersigned authority in and for the jurisdiction aforesaid, the within named Elizabeth Hightower Austin, grantor, and J. Ed Turner, grantee, who, after first being by me duly sworn, state on their respective oaths that each executed and delivered the above and foregoing Agreement on the date and for the purpose therein described.

SWORN TO AND SUBSCRIBED before me, this the 20th day of January, 1977.

/s/ Larrv T. Austin

NOTARY PUBLIC MY COMMISSION EXPIRES:

10/25/78

On October 16, 1980, appellee, as executrix of Elizabeth P. Hightower’s estate, petitioned the Chancery Court of Forrest County for a supplemental accounting and authority to sell real property. At the time the petition was filed, the estate consisted of the sixty-acre tract of land in Forrest County valued at $25,000, an account receivable from Larry Austin at $2,195.44 and an account receivable from Louise Martin at $913.64. Working interests in three oil wells located in Wayne County with an estimated value of $6600, together with $9,151.61 cash balance of the receipts from such oil payments remaining after payment of production expenses, were distributed to appellee as the residuary beneficiary of Elizabeth Hightower’s will.

In the settling of the estate account, the following legal fees were incurred as a result of a will contest that was apparently known or anticipated by both appellant and appellee because the will was attached to the contract on January 20, 1977: Larry Austin — $2,195.44; Howard M. Stroud, P. A. — $9000; and Zachary, Gillespie and Rogers — $9000. The chancery court’s decree authorized the distribution of the account receivable of Larry Austin to him in payment of his fees. However, the $18,000 in legal fees, which remained owing, was decreed to be derived from the sale of the following described property after the court found the personal property of the estate insufficient to pay the same:

The North Three-quarters (N3/i) of the Northwest Quarter (NWVü) of the Southeast Quarter (SEVi) of Section 15, Township 2 North, Range 13 West, Forrest County, Mississippi, together with all improvements thereon and appurtenances thereunto belonging.

On October 29, 1980, appellant filed his petition to modify the decree approving the supplemental final accounting and authorization of sale of real property based upon his agreement with appellee. Appellant prayed that the court modify its decree by first applying the personal property assets of the estate, consisting of the $9,151.61 cash balance from the Murphy Oil working interest and the sale of the Murphy Oil Company working interest, toward the payment of legal fees and court costs. Appellant alternatively prayed for some sort of specific performance and general relief which should not and could not be granted in an estate proceeding but might be the subject of a separate action. If these amounts were insufficient to satisfy the debts of the estate, appellant prayed that the appellee, as executrix, sell, in accordance with the agreement, the real property.

The chancellor sustained a special and general demurrer to appellant’s petition, finding that appellant was not a proper party and had no standing, as well as no equity being on the face of the bill.

I. Did the chancellor err in sustaining the demurrers to appellant’s petition?

Mississippi Code Annotated section 91-7-197 (1972) provides:

Heirs or devisees to be summoned.
When a petition shall be filed to sell or lease land to pay debts or otherwise affecting the real estate of a deceased person, all parties interested shall be cited by summons or publication, which shall specify the time and place of hearing the petition. If the petition be filed by a creditor or by a purchaser to correct a mistake in the description of the land, the executor or administrator shall be cited, (emphasis ours).

In Brickell v. bightcap, 115 Miss. 417, 76 So. 489 (1917), this Court held that all persons interested in the lands of the decedent, and who prima facie have title thereto, have a right to appear and contest the application. The Court went on to say that the primary purpose of the statute was to require the owners of the estate sought to be sold be brought before the court. Subsequently, in Townsend v. Beavers, 185 Miss. 312, 188 So. 1 (1939), this Court again construed the statute in question as embracing only those who have a vested interest in the land itself — the heirs and devisees or the assignees of either:

In this connection notice may be taken of the point argued under the cross-appeal that the judgment creditors of two of the heirs were not made parties to the petition to sell the real estate. Section 1694, Code, 1930 which deals with this matter of parties to such a petition, begins with the lead line “Heirs or devisees to be summoned” and then proceeds to provide that “all parties interested shall be cited by summons or publication.” In Brickell v. bightcap, 115 Miss. 417, 433, 76 So. 489, 494, it was said that this statute embraces as to parties “those who have a vested interest in the land itself — the heirs and devisees or the assignees of either,” and, 115 Miss, on page 436, 76 So., page 489, the court said that the purpose of the statute was to require simply that the owners of the estate sought to be sold, should be brought before the court. We interpret that decision to hold that the parties to be included are those who are heirs or devisees, as such, or who are conventional vendees, mortgagees, or assignees under them, or whose interests had become the full and completed vested equivalent thereof, and none others. Wherefore judgment creditors, solely as such, of the heirs or devi-sees or of some of them are not necessary parties. (185 Miss, at 323, 188 So. at 4) (emphasis ours).

Real property descends directly and immediately to the heirs or devisees of the deceased subject only to the debts of the deceased over and above his personal estate. Parker v. Newell, 245 So.2d 575 (Miss.1971). In the case sub judice, the real property in question descended directly to Elizabeth H. Austin subject only to the debts of the decedent over and above her personal estate. Austin’s title to the property was the will' itself if held valid. The contract between Austin and appellant was contingent upon the validity of the will. That issue was hotly contested before a jury and decided, devisavit vel non, in favor of the will devising the property to Austin. Griffith, Mississippi Chancery Practice section 103 (2d Ed. 1950), provides:

§ 103. What interest is required.— Looking now to this statement of the general rule, we come first to the question as to what interest it is that is a material legal or equitable interest in the suit. It is any interest, without reference to its precise character, which has legal or equitable substance in fact, and it may be either present and immediate, or future and remote; but it must be more than a possibility or a merely consequential, purely expectant or contingent one, as for instance a contingent interest depending solely on the result of a suit, and it must be more than merely one of sentiment or feeling or desires, (emphasis ours).

See Magnolia Textiles, Inc. v. Gillis, 206 Miss. 797, 41 So.2d 6 (1949).

Austin’s ability to perform the contract was wholly contingent upon the validity of the will. Both parties were aware of decedent’s will and the probable contest of the same because the contract states in part as follows as to the first thirty-acre tract: “[H]ereby contract and agree to sell and convey .. . subject to the following terms and conditions . .. and agree to protect the rights of grantee herein by all methods legal ... that should the grantor herein receive title to any thirty acres of the sixty acres ... above, then the grantor shall convey title to thirty of said acres .. .. ” A copy of the questionable will was attached to the contract. This was a contingent interest, depending solely on the result of a suit which was not such an interest as contemplated by section 91-7-197. See Griffith, Mississippi Chancery Practice, supra, and Magnolia Textiles, supra.

The second thirty-acre tract is even more contingent where the contract states in part thereof: “[SJhould the grantor herein receive title to the entire sixty acres .. . she shall, immediately after receiving said title, convey title to the grantee herein in exchange for payment from grantee to grant- or of the sum of $7,500.00, which shall be in addition to payments described.”

Since Austin’s title to the property was the will itself, the appellant’s interest in the property was merely contingent and depended solely on the outcome of the suit to contest the will. It therefore follows that appellant was not a party interested under section 91-7-197, but was one with a contingent interest, and therefore lacks standing to file a direct action in the estate proceeding to change and modify an order of the chancellor entered on a date previous thereto.

The special demurrer raises that exact question as follows: “The petitioner, J. Ed Turner, is not a proper party and has no standing to file the petition to modify decree.” The chancellor having sustained the special demurrer, we affirm and do not reach the merits of the cause.

We note from the argument of counsel that the contract in question between appellant and appellee is the subject of a suit for specific performance and injunction filed on the same date as was the petition sub judice and that suit has been held in abeyance pending the outcome of this appeal. In the judgment of the parties, perhaps that suit may proceed with all deliberate speed and the rights of the parties adjudicated.

The chancellor’s decree dated March 26, 1981, sustaining the special demurrer to dismiss the petition of appellant to intervene in the estate proceeding and modify the decree dated October 6, 1980, be and the same is hereby affirmed...

AFFIRMED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING and HAWKINS, JJ., concur.

PRATHER, J., took no part.

      . The real property ordered sold by the Chancery Court of Forrest County is a part of the real property that is the subject matter of the agreement between Turner and Austin.

      . The sustaining of one demurrer was effective to dismiss the case as finally as the sustaining of two or more demurrers.


author: WALKER, Presiding Justice,

text:
    Tyrone HINES v. STATE of Mississippi.
    No. 53281.
    Supreme Court of Mississippi.
    July 28, 1982.
    J. R. Gilfoy, Lexington, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal by Tyrone Hines from a verdict and sentence for armed robbery in the Circuit Court of Holmes County, Mississippi. Hines was sentenced to twenty-five years in the Mississippi Department of Corrections. Feeling aggrieved, he appeals.

According to the testimony of Mrs. Carl R. Arnold, the victim, Tyrone Hines and Shelton White entered her grocery and service station in West, Mississippi, on November 11, 1980, shortly before noon. After purchasing a package of cigarettes, beer and $1.00 of gas, Hines and White drove away. Both men returned within two hours to Arnold Grocery and Service Station. After asking for a beer, one of them struck Mrs. Arnold on the forehead twice with the butt of a .38 revolver. The appellant then threatened the victim that he would kill her if she moved. A cash box containing approximately $550.00 was taken. The testimony is conflicting as to who struck Mrs. Arnold. White testified that he entered the store with a .38 and Hines had a .32 automatic in his sock. White states that he struck the victim first and Hines hit her again as she fell. Mrs. Arnold, who was seventy-six years of age and suffering from arthritis, testified that she did not actually see who hit her. However, she stated that Hines was nearer to her when the blows were struck and that White would have been unable to reach her from his position in the store. Tyrone Hines did not testify at the trial.

According to Shelton White’s testimony earlier that morning Tyrone Hines, Roger Miller, Nathaniel Bailey and White had decided to rob the Arnold Grocery and Service Station in order to “get some money.” After the robbery, Hines and White fled in Miller’s car and met with Bailey and Miller on a dirt road in order to switch cars.

Officer Nicky Johnson of the Durant Police Department, having been notified of the armed robbery, spotted a car and occupants matching the description of the alleged assailants. While attempting to flee, the assailant’s vehicle went out of control and skidded off the road. Officer Johnson, assisted by the sheriff’s department, arrested Nathaniel Bailey, Roger Miller, Shelton White and the defendant, Tyrone Hines. The officers recovered Mrs. Arnold’s cash box and a .32 automatic from outside the vehicle, a .38 revolver under the front seat, an automatic shotgun from the back seat and a pump shotgun from the trunk.

At his trial for armed robbery, the defendant’s motion for a directed verdict was overruled and the defendant rested without presenting any evidence on his behalf.

The appellant first contends on appeal that the court erred in failing to grant his motion for a directed verdict of acquittal at the conclusion of the state’s case. We find this assignment to be wholly without merit. Conflicts in the evidence are to be resolved by the jury. The facts recited above were more than ample to support the jury verdict.

The appellant next argues that the court erred in failing to declare a mistrial, or in the alternative, to replace a juror, who was allegedly asleep, with an alternate jur- or to conclude the case.

It was claimed that the juror had been asleep during the closing argument of the appellant.

The trial judge made a finding that if the juror was indeed asleep, he awoke before the matter was brought to the attention of the court by appellant’s counsel. This finding was made during the appellant’s motion for a J.N.O.V. or in the alternative for a new trial, at which time the trial judge stated, in overruling the appellant’s motion:

On the second ground, the Court has a few comments to make concerning its own observation of what did take place. The Court was not looking at the jury when Mr. Gilfoy pointed out to the Court that we had a juror who was asleep. I looked at the jury and juror Dixon did have his head down and his hands over his eyes. The juror next to him hit him in the side or punched him in the side and he looked at the juror and said to him, “I am not asleep,” and he looked at the Court and said “I am not asleep.” The argument proceeded. The defense argued. Mr. Gilfoy was going through his argument at which time Mr. Gilfoy again pointed out that juror Dixon appeared to be asleep, at which time I looked again at Dixon and I watched him thereafter throughout the argument. He did have his head down and he had his hands over his eyes but when the comment was made by Mr. Gilfoy he raised his head and looked at me and said “I am not asleep.” Therefore, the Court is of the opinion that if juror Dixon was asleep he awoke. He was awakended by his fellow who punched him in the side when Mr. Gilfoy brought it to my attention and thereafter the Court is convinced from his responses to me, which were made directly to me after Mr. Gilfoy pointed out that he was asleep, that he was not in fact asleep because he moved his hands and raised his eyes and indicated that he was not asleep.

In this case, the trial judge found that the juror was not asleep and thus there was no need to remove him from hearing the rest of the case.

We hold that due to the trial judge’s finding that the juror was indeed awake, the appellant’s assignment of error is without merit.

The remaining assignments of error are without merit and warrant no discussion.

For the reasons stated above, the cause is affirmed.

AFFIRMED.

PATTERSON, C. J., SUGG, P. J., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

PRATHER, J., takes no part.

      . It has been most helpful to us that the trial judge explain his reasons for leaving the juror.


text:
    Homer S. HUTCHINSON and Evelyn W. Hutchinson v. Ron C. SMITH.
    No. 53300.
    Supreme Court of Mississippi.
    Aug. 4, 1982.
    Taylor, Covington, Smith & Matrick, James E. Lambert, Jackson, for appellants.
    Bennett, Lotterhos & Sulser, Joseph E. Lotterhos, Jackson, for appellee.
    Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Hinds County wherein Homer S. Hutchinson and Evelyn W. Hutchinson, plaintiffs/appellants, instituted an action against Ron C. Smith, defendant/appellee, for alleged malpractice, growing out of legal services rendered in connection with bankruptcy proceedings involving the Hutchinsons. From an order dismissing the Hutchinsons’ declaration as being barred by the three-year statute of limitations applicable to unwritten contracts, the Hutchin-sons prosecute this appeal. We reverse.

On July 1, 1980, appellants filed suit against appellee for legal malpractice arising out of two bankruptcy petitions filed on their behalf by appellee. The declaration was amended on February 25, 1981, and charged that appellee negligently conducted the legal representation of the appellants by failing to list certain priority claims that could have been satisfied from the assets of the bankruptcy estate.

Appellants averred that, as a direct result of appellee’s negligence, a tax obligation to the Mississippi Employment Security Commission in the amount of $900 survived the bankruptcy proceedings and remained as a debt and lien against appellants’ property. Appellants incurred approximately $2300 in legal fees and expenses in order to reopen the bankruptcy case and have a tax debt to the Mississippi State Tax Commission discharged and cancelled and to obtain an injunction order to have the tax liens removed from the judgment roll books of Hinds County, and appellants were forced to pay approximately $737.71 in taxes, interest and penalties to the United States Government, which survived the bankruptcy proceedings. Judgment was demanded in the amount of $36,937.71.

On March 31, 1981, appellee filed his answer to the amended declaration denying the material averments thereof. Appellee affirmatively alleged that appellants were guilty of contributory negligence, comparative negligence, and assumed the risk by failing to disclose to appellee their liability to the taxing authorities.

Thereafter, on April 20, 1981, appellee filed a motion to dismiss, and plea in bar to the action, alleging the action was barred by the three-year statute of limitations. The trial court sustained appellee’s motion to dismiss and plea in bar after hearing argument of counsel and authorities presented by each side.

I. Did the trial court erroneously apply the three-year statute of limitations to the case at bar?

The trial judge sustained appellee’s motion to dismiss and plea in bar based on Mississippi Code Annotated section 15-1-29 (Supp.1981) which provides:

Except as otherwise provided in the Uniform Commercial Code, actions on an open account or account stated not acknowledged in writing, signed by the debtor, and on any unwritten contract, express or implied, shall be commenced within three (3) years next after the cause of such action accrued, and not after, except that an action based on an unwritten contract of employment shall be commenced within one (1) year next after the cause of such action accrued, and not after.

The trial judge evidently was of the opinion that the action was based on appellants’ unwritten contract with appellee to render the services complained of rather than the basis of the action being in tort. On appeal, appellants contend the declaration sounded in tort. Therefore, the six-year statute of limitations provided in Mississippi Code Annotated section 15-1-49 (1972) should have governed the action.

The legislature has not passed a specific statute of limitations applicable to legal malpractice as has been done for medical or pharmaceutical malpractice. See section 15-1-36 (Supp.1981). It is interesting to note that prior to the passage of section 15-1-36, medical malpractice was governed by the six-year statute of limitations. Wilder v. St. Joseph Hospital, 225 Miss. 42, 82 So.2d 651 (1955).

An action for legal malpractice may sound in either tort or contract. Mallen and Levit, Legal Malpractice § 382 (2d Ed. 1981); Wade, A Survey of the Law of Legal Malpractice, Miss. Law Inst. 49 (1977); and 7A C.J.S., Attorney and Client § 267 (1980).

The elements of an action for legal malpractice consist of the existence of the relationship of attorney and client, the acts constituting the alleged negligence, that the negligence was the proximate cause of the injury and the fact and extent of the injury alleged. Nause v. Goldman, 321 So.2d 304 (Miss.1975). Appellee contends that since the present action was not maintainable without pleading and proving the unwritten contract, which established the attorney/client relationship, it was, in substance, an action on the contract.

When an attorney undertakes the representation of a client, the law implies a promise that the attorney will execute the business entrusted to his professional management with that degree of care, skill and diligence which is commonly possessed and exercised by attorneys in practice in the jurisdiction. Thompson v. Erving’s Hatcheries, Inc., 186 So.2d 756 (Miss.1966).

In Johnson v. Crisler, 156 Miss. 266, 125 So. 724 (1930), appellant brought an action for legal malpractice resulting from a false certificate to an abstract of title issued by an attorney on a parcel of property purchased as a result of the certificate of title issued by the attorney. Appellant’s remedy was held barred by the three-year statute of limitations. In Grayson v. Wilkinson, 13 Miss. 268 (1845), and Hudson v. Kimbrough, 74 Miss. 341, 20 So. 885 (1896), in holding the wrongful conversion of a client’s money was barred by the three-year statute of limitations, this Court more or less dealt with legal malpractice actions as contractual in nature.

Other cases decided by this Court speak of legal malpractice being based in tort. In Cook v. Rives, 21 Miss. 328 (1850), the six-year statute of limitations was successfully interposed to a legal malpractice action. Thompson v. Erving’s Hatcheries, supra, and Nause, supra, both involved questions of negligence. White v. McRae, 380 So.2d 1390 (Miss.1980), makes it quite clear that a tort action may be maintained in a legal malpractice claim. In finding that an aggrieved client’s complaint with the Mississippi State Bar had no effect on a separate private remedy in circuit court, this Court said:

We think neither principles of res judi-cata, collateral estoppel by judgment, nor election of remedies prevented White from pursuing a private tort remedy in the circuit court for money damages after failing to obtain satisfaction at the Mississippi State Bar. ... (380 So.2d at 1391).

Since an action for legal malpractice may sound in tort or contract, an aggrieved client is faced with a choice of remedies. Baird, Legal Malpractice in Mississippi, 43 Miss.L.J. 691, 697 (1972), states:

Although the Mississippi Supreme Court has never expressly decided what statute of limitations applies to attorney malpractice actions, and since both the three year statute of limitations for contracts and the six year statute of limitations for torts have been applied in different cases, the logical conclusion is that a choice of remedies is available. Accordingly, if the statute of limitations might be a problem, the complaint should be styled as being in tort so as to obtain the benefit of the longer statute of limitations.

Reynolds, Mississippi Perspective on Professional Liability, Miss. Law Inst. 135, 147 (1977), also states:

1. Limitation of Action. If a malpractice action against an attorney is brought in contract, then the Mississippi three-year statute of limitations on contracts would apply. It is conceivable that the six-year statute of limitations for written contracts could apply in certain unusual situations, and, if the suit is brought in tort, the six-year statute of limitations for general tort actions would apply.

Where a party has two or more remedies for enforcement of a right, the fact that one remedy is barred by the statute of limitations does not bar the other remedies. However, where a plaintiff elects one of two remedies and such action is barred by the statute of limitations, the plaintiff is bound by his election and cannot thereafter resort to the other remedy for which a different limitation is provided. 53 C.J.S., Limitations of Actions § 7 (1948). 53 C.J.S., Limitations of Actions section 45 (1948), provides:

As a general rule, where a party has two remedies available to him, one of which is by action in contract, and the other by some other action, such as an action in tort, whether the statutes of limitation governing actions on contracts apply will depend on his election as indicated by the form of his action or his allegations and prayer. However, it has also been held that the mere fact that the action is in form one of contract is not controlling, and that the real substance of the action is the determining factor.
The bar of one of two remedies as affecting the other is considered supra § 7-

See also 53 C.J.S., Limitations of Actions § 33 (1948).

Regardless of the oral contract under which appellee undertook legal representation of the appellants, the law imposed a promise on appellee’s part to execute appellant’s business entrusted to his professional management, with a reasonable degree of care, skill and dispatch. Thompson v. Erving’s Hatcheries, supra.

Turning to appellants’ declaration, they charged as follows:

Defendant could, by the exercise of due diligence and skill, have had all of the tax obligations of the Plaintiffs herein paid in full out of the assets of the bankruptcy estate, but he so negligently conducted the legal representation of the Plaintiffs herein that the Plaintiffs have had to pay out of their pockets from after-acquired property and income tax debt to the Internal Revenue Service plus all accrued interest and penalties and legal expenses.
XI.
The professional negligence of the Defendant, Ron C. Smith, in handling this legal matter entrusted to him consisted of:
(a)negligently failing to inspect and review the petitions filed in the Bankruptcy Court to determine that all creditors had been listed on the schedules;
(b) negligently allowing the bankruptcy petitions to be filed without listing the Mississippi Employment Security Commission as a priority claimant;
(c) negligently failing to amend the bankruptcy petitions to include the Mississippi Employment Security Commission as a priority claimant and failing to have the tax due the Mississippi Employment Security Commission paid out of thq. assets of the bankruptcy estate;
(d) negligently failing to advise the Plaintiffs that taxes incurred within three years immediately preceding the filing of bankruptcy were not dischargea-ble in bankruptcy proceedings;
(e) negligently failing to advise the Plaintiffs that post-petition interest and penalties associated with the tax debt were not dischargeable debts in the bankruptcy proceedings;
(f) negligently failing to review the proof of claims filed by creditors and especially the Internal Revenue Service and the Mississippi State Tax Commission to insure the proper proofs of claim were filed and that these creditors were paid in full;
(g) negligently failing to represent the Plaintiffs before the Bankruptcy Court and being ill-advised in his understanding of the Bankruptcy laws in this country;
(h) negligently failing to file correct proof of claim for the Mississippi State Tax Commission and insuring payment thereof;
(i) negligently failing to file a correct and complete proof of claim for the Internal Revenue Service and insuring payment thereof.

As a result of appellee’s alleged negligence, appellants sought damages for emotional anguish, suffering and distress, as well as damages incurred when other legal counsel was employed to reopen the bankruptcy proceedings.

We believe that appellants’ declaration in the instant case sounded in tort. Therefore, the six-year statute of limitations was the applicable statute of limitations governing the cause. Because the trial judge erroneously applied the three-year statute of limitations, the cause is reversed and remanded for a trial on the merits. In view of the ruling of the court on the statute of limitations, thereby causing a reversal of this cause, it is not necessary to, nor do we, reach the other assignments of error.

REVERSED AND REMANDED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and PRATHER, JJ., concur.

      . Appellee’s argument that the action was one based on an unwritten contract due to the fact that the contract was a necessary element to recovery could just as well be advanced in a medical malpractice claim which was previously governed by the six-year statute.


author: BROOM, Justice,

text:
    Fred POLK v. STATE of Mississippi.
    No. 53316.
    Supreme Court of Mississippi.
    Aug. 4, 1982.

      Harry L. Kelley, Wayne S. Burnett, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, BROOM and ROY NOBLE LEE, JJ.
   BROOM, Justice,

for the Court:

Murder is the offense for which appellant Fred Polk (defendant) was convicted at trial in the Circuit Court of Rankin County, the Honorable Alfred G. Nicols, Jr., circuit judge, presiding. The indictment charged that Polk murdered Constable Jerry L. McCrory at a time when the constable was engaged in the duties of his office. Mississippi Code Annotated § 97-3-19(2)(a) (Supp.1981). Verdict of the jury was that the defendant was guilty of murder (less than capital), whereupon he was sentenced to life imprisonment. Reversal is urged on the following arguments: (1) the jurors dispersed during the trial; (2) instruction D-7 was erroneously rejected; (3) “improper conduct by the district attorney”; and (4) the jury should have been restricted to finding the defendant “guilty of manslaughter or not guilty”. We affirm.

Justice Court Judge Cecil McCrory testified that he issued a warrant for the defendant’s arrest and handed it to Constable Jerry McCrory (the deceased) for him to go “pick Fred Polk up”. The judge then went and parked near Forshee’s Grocery Store, which was not far from defendant Polk’s place of residence. According to Judge McCrory, he saw the constable (who had the arrest warrant) walk toward Polk’s house — a shot was fired, after which the judge saw the uniformed constable fall. Other shots were then fired. Nowhere in the defendant’s testimony (wherein he admitted shooting the constable) did he say that the constable was shooting at him or had a gun or weapon in his hand.

The first argument made here is that the lower court erred in allowing the jury to go vote in municipal elections during the trial. In his brief, the defendant cites no testimony that the jury in fact actually was dispersed during the trial. Our examination of the record shows the following statement by the trial judge:

BY THE COURT:

Let the record show that we are now taking a recess until six o’clock, that the matter of the jury’s voting in the municipal elections in Brandon and Pearl that are being held today and perhaps other municipalities has been broached and that the defendants have agreed that they have no objection to the sequestered jury being allowed to accompany a bailiff to the voting place to be allowed to cast their vote.

Nowhere in the record have we found any testimony, or affidavit, or fact-finding that the jury actually dispersed. At most is a statement from the judge in the case that he and the lawyers had agreed that the “sequestered jury” might go to the voting places accompanied by a bailiff. The judge’s statement indicates an agreement that the jurors could go vote, but that they in fact dispersed or voted is not established in the record. No improper association of a juror with another person or misconduct is charged or suggested by the defendant. Jury dispersal was merely raised by the bare allegation in the defendant’s unsworn motion for a new trial. We are unable to find (and none has been cited to us) evidence in the record supporting the motion. Absent any proof of actual dispersal and absent any proof to support the motion, reversible error has not been established in this regard. Upon the state of the record, the cited cases of Cox v. State, 365 So.2d 627 (Miss.1978), and Weaver v. State, 272 So.2d 636 (Miss.1973), do not apply.

Secondly, defendant Polk argues that his requested jury instruction D-7 on self-defense was erroneously denied by the trial court. We note that the defendant was granted instruction D-2, which liberally directed the jurors to

[P]ut themselves in the Defendant’s place, and then judge whether the danger was apparent, or should have been considered apparent by a person of ordinary caution and prudence in like condition, and that the danger need not have been real, present or urgent at the very moment of the killing, but only apparently so, ...

Also instruction D-4 was given, authorizing the jurors to determine whether the killing was done under circumstances wrongfully provoked by some “overt act, conduct, or behavior of the deceased...” This instruction told the jury that “a motion, a gesture, conduct, or demonstration, or anything else” might evidence to the defendant the design of the deceased to take the life of the defendant. Instruction S-5 granted at the request of the state was also a self-defense instruction given to the jury. When all of these instructions are considered together, we are unable to say that the jurors were not adequately instructed on self-defense ¿£nd, accordingly, this argument lacks merit.

The third argument made by defendant is his contention that the lower court should have granted him a mistrial “due to improper conduct of the district attorney.” We have looked at the instances of alleged prosecutorial misconduct and do not find them to be serious enough to warrant reversal. In the most serious instances, the trial judge sustained defense objections and properly admonished the jurors. Evidence of the defendant’s guilt is so overwhelming that a fair-minded jury could hardly have reached a verdict against the defendant less severe than that which was reached. He was being tried for the death penalty but the jurors found him guilty of murder less than capital murder. It is not likely that he was actually prejudiced by the improper actions of the district attorney, and the argument on this point is not persuasive.

Last argument is that the lower court erred in not instructing the jury to restrict its verdict and find the defendant “guilty of manslaughter or not guilty.” We find no merit to this argument because the record presents a case of overwhelming proof of the defendant’s guilt. When Constable McCrory was shot, he was dressed in his uniform and killed by a shotgun blast admittedly fired by the defendant from inside the defendant’s residence. The record shows testimony of the defendant’s son who stated that his father stated he shot the constable and intended to do so. At the time he was shot, Constable McCrory was attempting to serve an arrest warrant and no reason was shown that would justify the defendant’s shooting him. Upon the facts presented, it was for the jury to resolve the issue of whether the defendant was guilty of murder, manslaughter, or no crime. The jurors found him guilty of murder upon testimony which adequately supported the verdict, and reversible error has not been established.

AFFIRMED.

PATTERSON, C. J., SUGG and WALKER, P. JJ., and ROY NOBLE LEE, BOWLING, HAWKINS and PRATHER, JJ., concur.

DAN M. LEE, J., takes no part.


text:
    John L. HOWARD v. STATE of Mississippi.
    No. 53733.
    Supreme Court of Mississippi.
    Aug. 4, 1982.

      Burén T. Batson, Jr., Lexington, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

In the Circuit Court of Holmes County, John L. Howard was convicted of statutory rape under the provisions of Miss.Code Ann. § 97-3-67 (Supp.1980), and sentenced to five years in the penitentiary.

The evidence presented consisted of testimony of Patricia Ann Garrette, prosecutrix, that some time in October, 1980, Howard, her uncle, came to her family’s house when she was alone, pushed her onto a bed, removed her clothes, and had sexual intercourse with her. Prosecutrix testified that when her family returned home she did not reveal what had transpired out of fear. A month later, prosecutrix told Howard her belief that she was pregnant whereupon, according to her, Howard said, “You better not tell anybody, you know, because that will make you look stupid, your uncle doing that to you”, and “Well, if you think you are pregnant, you should go out and get you a boy or something, you know.”

Further testimony consisted of statements by prosecutrix and her mother that Howard told his mother, prosecutrix’ grandmother, of the pregnancy at a time when she had told no one other than Howard. Prosecutrix’ mother testified that her son told her he overheard Howard tell prosecu-trix to go out with other boys. Lastly, prosecutrix testified a child was born to her on June 13, 1981.

In order to affirm the conviction for statutory rape, Miss.Code Ann. § 97-3-69 (1972), requires that the testimony of the prosecutrix must be corroborated by other evidence.

The degree of corroboration is set forth in Yancy v. State, 202 Miss. 662, 668, 32 So.2d 151, 152 (1947), as follows, “corroboration must be, not merely of incidental details, but of the commission of the prohibited act.”

Gillis v. State, 152 Miss. 551, 120 So. 455 (1929), involved a conviction of statutory rape upon facts similar to this case. In Gillis, the prosecutrix, when in travail, told her father that appellant was the father of her child, her father testified that appellant was the only boy she had ever been alone with, and a child was born to the prosecu-trix. In holding that the evidence failed to corroborate the prosecutrix on the main element of the crime, the court in Gillis quoted Hollins v. State, 128 Miss. 119, 90 So. 630 (1922), “The secret part of the crime— that element which, in the nature of things, in a great majority of cases, no one else than the guilty parties would know anything about — is the element as to which she must be corroborated.... ” 152 Miss, at 554, 120 So. at 456.

As in Gillis, the birth of the child undoubtedly corroborates sexual intercourse by the prosecutrix with someone. It fails, however, to establish that the defendant was the person with whom she engaged in sexual intercourse. Moreover the other corroborating testimony, if such it was, by the prosecutrix and her mother, was self-serving, admittedly hearsay, and was denied by the appellant. The prosecutrix’ testimony being without corroboration was insufficient, in our opinion, to support the verdict.

REVERSED AND APPELLANT DISCHARGED.

SUGG and WALKER, P. JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


text:
    Ronald COGSDIL v. C. J. GAYFER’S and Liberty Mutual Ins. Co.
    No. 53285.
    Supreme Court of Mississippi.
    Aug. 4, 1982.
    Blackwell & Galloway, Ben Galloway, Gulfport, for appellant.
    Daniel, Coker, Horton & Bell, Donald V. Burch, Jackson, for appellees.
   Appeal from Circuit Court, Jackson County; Robert T. Mills, Judge.

Before SUGG, P. J., and HAWKINS and PRATHER, JJ.

AFFIRMED.


text:
    SHERIDAN, INC. v. Ray B. ENGLISH.
    No. 53337.
    Supreme Court of Mississippi.
    Aug. 4, 1982.
    M. Charles May, C. Eiland Harris, Jackson, for appellant.
    Teller, Chaney & Rector, M. James Chaney, Jr., Vicksburg, for appellee.
   Appeal from Circuit Court, Warren County; John E. Ellis, Judge.

Before SUGG, P. J., and HAWKINS and PRATHER, JJ.

AFFIRMED.


text:
    Nancy C. McCONNELL v. James E. McCONNELL, Jr.
    No. 53612.
    Supreme Court of Mississippi.
    Aug. 4, 1982.
    Graham, Segrest & Johnson, J. Tyson Graham, Columbus, for appellant.
    Gholson, Hicks & Nichols, Dewitt T. Hicks, Jr., Columbus, for appellee.
   Appeal from Chancery Court, Lowndes County; W. W. Brand, Jr., Chancellor.

Before SUGG, P. J., and HAWKINS and PRATHER, JJ.

AFFIRMED.


text:
    Essex McLENDON v. STATE of Mississippi.
    No. 53336.
    Supreme Court of Mississippi.
    Aug. 4, 1982.
    Varner & Parker, David M. Sessums, Vicksburg, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Warren County; John E. Ellis, Judge.

Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.

AFFIRMED.

PATTERSON, C. J., SUGG, P. J., and BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


text:
    Henry Kenward BARLOW v. STATE of Mississippi.
    No. 53683.
    Supreme Court of Mississippi.
    Aug. 4, 1982.
    Robert N. Brooks, Carthage, for appellant. )
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Leake County; Marcus D. Gordon, Judge.

Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.

AFFIRMED.


text:
    SUMNER & GREENER, et al. v. DUNN CONSTRUCTION CO.
    No. 53581.
    Supreme Court of Mississippi.
    Aug. 4, 1982.
    Thomas, Price, Alston, Jones & Davis, John A. Bethany, III, Charles R. Davis, Jackson, for appellants.
    Jones, Mockbee & Bass, David W. Mock-bee, Jackson, for appellee.
   Appeal from Circuit Court, Madison County; Alfred G. Nicols, Jr., Judge.

Before SUGG, P. J., and HAWKINS and PRATHER, JJ.

AFFIRMED.


text:
    WESTINGHOUSE ELECTRIC CORP. v. Bobby Gene JOHNSON.
    No. 53359.
    Supreme Court of Mississippi.
    Aug. 4, 1982.
    Wheeless, Beanland, Shappley & Bailess, William G. Beanland, Vicksburg, for appellant.
    Everette Verhine, Vicksburg, for appel-lee.
   Appeal from Circuit Court, Warren County; John Prewitt, Sr., Judge.

Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.

AFFIRMED.