author: SCHOTT, Judge.

text:
    BLAISE PARKING AND ENTERPRISES CORPORATION v. PROJECT SQUARE 221.
    No. 12336.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.

      Charles E. McHale, Jr., Charles J. Rivet, New Orleans, for plaintiff-appellee.
    A. Morgan Brian, Jr., and James A. Burton, Simon, Peragine, Smith & Redfearn, New Orleans, for defendant-appellant.
    Before SCHOTT, GARRISON and KLEES, JJ.
   SCHOTT, Judge.

This case is a sequel to Blaise Parking & Enterprise Corporation v. Project, 349 So.2d 387 (La.App. 4th Cir. 1977) writs refused 351 So.2d 178. Having obtained a final declaratory judgment that Project had violated the terms of a lease agreement between the parties, Blaise instituted this action to collect the damages it sustained because of Project’s past breaches and attorney fees it incurred. The trial judge awarded Blaise $37,048.06 for damages and $41,209.00 attorney fees. The issues on this appeal are 1) whether a party to a lease who has obtained a declaratory judgment decreeing that the other party has been violating the lease may recover attorney fees incurred in bringing the original action; 2) whether a party may obtain a judgment for damages sustained from acts of the othér party found to be violations of the lease in the declaratory judgment; 3) whether evidence to some extent based on speculation is adequate to support some amount of damages; and 4) whether the award for damages, though considerably less than the amount estimated by an economist, was within the discretion of the trial court.

As can be seen in our previous decision, this case involves the lease of a ten level parking garage in a fifty story office building owned by Project in New Orleans. Blaise as lessee was to operate and manage the garage, but Project had the option to lease back parking spaces which it would make available to its tenants on a monthly contract basis. Project ultimately leased back its full quota of spaces, all but 22 of 781 spaces in the garage, but early on problems developed between the parties including the question of “oversell.”

This problem stems from the acknowledged fact that while there are a given number of contract parkers in a garage such as this there is never a time when 100% of the space sold to contract parkers is actually used by them. The dispute between the parties was over which could “oversell” the garage. Project brought the dispute to a head when it insisted that Blaise issue to it 53 magnetic cards for entry to and exit from the garage over above the 531 contracts it had, at that time, opted to lease back from Blaise. We previously held that Blaise was entitled to the oversell and Project was not entitled to the extra cards.

Additionally, Project had taken other action which we previously held was in violation of the lease by failing to provide Blaise with the names and addresses of its contract parkers and by painting green and installing signs in an area of the garage in an effort to reserve that area for a special class of contract parkers.

Finally, in the previous case, we reversed Blaise’s right to have the trial court fix reasonable attorney fees upon Blaise filing a petition for further declaratory relief under LSA C.C.P. Art. 1878.

Project specifies error in the trial court’s awarding Blaise attorney fees based on the prior declaratory judgment action as well as the present action; dismissing Project’s alternative claim for an offset of its own attorney fees in the sum of $7,000.00, and dismissing Project’s exception of no cause of action to Blaise’s claim for damages based on Project’s breach of contract. Project also contends that the damages awarded were not supported by the evidence.

ATTORNEY FEES

The contract between the parties provides as follows:

“IN THE EVENT OF DEFAULT by LESSOR or LESSEE pursuant to the terms and provisions of this lease, including the non-payment of any rental, CONTRACT PARKING RENT or otherwise, due by one to the other, the defaulting party shall be responsible to the other for reasonable attorneys’ fees in the event such default is not cured within the grace periods herein provided and in the event of any default, other than a default which can be cured by the payment of money, which cannot by its nature be cured within the grace period of thirty (30) days hereinabove provided, such grace period shall be extended provided the obligated party commences to cure such default within said thirty (30) day period and diligently proceeds to its curing thereafter without interruption.”

Project first argues that this language does not contemplate attorney fees for type of breaches it committed because the paragraph is located in a part of the lease whose attention is primarily devoted to Project’s obligations to pay rent and other charges and to provide insurance coverage. This argument lacks merit. The quoted provision is at the end of a three page section entitled “Default” and was obviously intended as a catch-all for any default.

Project next argues that an award of attorney fees for services performed prior to the declaratory judgment becoming final is inconsistent with the pleadings Blaise filed for declaratory judgment and is inimical to the purpose of a declaratory judgment action. As to the pleadings in the first action, Project’s position has some validity. Blaise did not allege that Project was in default but couched its allegations in such terms as “controversies have arisen between the parties;” their “inability . . . to resolve ... differences relative to the interpretation of the contracts;” Project’s threats “to place [Blaise] in default under the lease contracts;” and a particularization of acts which Project claims to have the right to do and which Blaise has protested.

However, the judgment of the trial court in the previous case as well as this court’s previous decision show that the issues of default were tried and led to the conclusion that Project had no right to paint the green spaces, refuse to supply Blaise with the names and addresses of contract parkers and have extra magnetic cards. Regardless of the pleadings the issue of Project’s default was tried pursuant to C.C.P. Art. 1154.

The record shows that Blaise repeatedly warned Project that it was in default as required by the quoted default clause from the lease. Early on Blaise demanded the names and addresses of contract parkers as a tool to deal with the problem of multiple egress (to be discussed in detail hereafter). When Project demanded the 53 extra cards, Blaise issued them under protest with the warning that this would cause Blaise to sustain losses. As soon as Blaise discovered that Project had painted and marked off the green area it notified Project of the default and promised action to recover damages. Thus, under the terms of the lease Blaise was entitled to claim attorney fees.

Louisiana’s Declaratory Judgment Act found in C.C.P. Arts. 1871 et seq., sanctions an award for attorney fees. Art. 1872 which authorizes the winning party to seek “further relief” when appropriate. Project cites Burton v. Lumbermens Mutual Casualty Co., 152 So.2d 235 (La.App. 4th Cir. 1963), writs refused 244 La. 895, 154 So.2d 767 as authority for the proposition that attorney fees may not be awarded under these circumstances, but the case is clearly to the contrary. There, the court held that attorney fees incurred by Ohio Casualty Company in defending Lumbermens’ insured could not be awarded to Ohio in the original declaratory judgment suit brought by the insured pursuant to Art. 1871 against the two insurers but could be awarded in a subsequent action pursuant to Art. 1878.

While our previous decision did not discuss in detail the question of Blaise’s entitlement to attorney fees, a fair reading of the case shows that the court was convinced that Art. 1878 conferred on Blaise the right to seek attorney fees in the present case and did establish the law of the case in this regard.

Since the evidence supports the amount of the award of attorney fees to Blaise the only remaining questions on this issue are Blaise’s contention that its attorney fees-should be increased for the additional fees incurred on appeal and Project’s position that it is entitled to an offset of $7,000.00 for attorney fees it incurred.

As to Blaise’s position, it has merit. The award below was based on the time spent by the attorneys through the second trial. An increase of $2,500 is appropriate considering the complexity of the issues, the amount of money involved, and other pertinent factors.

Project’s argument for the offset is based on the proposition that it “won” in the previous case on a major point at issue when we held that Project was entitled to lease back 759 stalls rather than 532 as Blaise contended. Thus, says Project, it obtained declaratory relief on this point, and its plea for offsetting attorney fees is a claim for further relief under Art. 1878.

The fallacy here is that Blaise committed no default which would provide a basis for an award to Project for attorney fees. When Project exercised its option to take the remaining stalls after it had previously taken 531 Blaise acquiesced, although under protest. Project got the additional stalls and used them. Thus, the evidence does not support Project’s entitlement to attorney fees under the provisions of the lease.

ENTITLEMENT TO DAMAGES FOR BREACH OF CONTRACT BY VIRTUE OF DECLARATORY JUDGMENT DECREEING RIGHTS OF PARTIES UNDER CONTRACT

Project raised this issue with an exception of no cause of action. Its position is that Blaise, having obtained a declaratory judgment defining its rights under the lease, is not entitled to damages for Project’s breaches of contract occurring before the declaratory judgment became final. Project argues that such a procedure defeats one of the purposes of the declaratory judgment procedure, namely, adjudication of disputes without exposure to damages; and it promotes piecemeal litigation and a loss of judicial economy. Project recognizes that Blaise could have sought damages from the outset and obtained a judicial interpretation as an incident to the suit but contends that Blaise is somehow estopped from claiming damages having elected to seek declaratory relief. Project acknowledges that there is no authority in Louisiana for its position and simply argues that its view is the “better” one.

The starting point for our decision is the language of our Code of Civil Procedure establishing declaratory judgment procedure. Art. 1871 which sets out the scope of declaratory proceedings provides that “the existence of another adequate remedy does not preclude a judgment for declaratory relief” where appropriate. Thus, even though Blaise could have filed a damage suit originally it was not precluded from seeking declaratory relief. But, here, we have the other side of the coin with Project arguing monetary damages. Art. 1878 seems to supply the answer to this contention. It provides:

“Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application is considered sufficient, the court, on reasonable notice, shall require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith.”

Project argues that this article means that a party who has obtained a declaratory judgment may return to court to enforce the provisions of the judgment but that the article does not contemplate a suit for damages sustained by the plaintiff before he obtained a declaratory judgment that the acts causing the damage were illegal or improper. In the first place, the Burton case referred to above in connection with attorney fees implies otherwise when it says:

“While this judgment in determining which insurer is primarily liable, may later form the basis of an action to recover attorney’s fees, etc....” (emphasis supplied)

While Project cites no cases from other jurisdictions in support of its argument we are referred to Beacon Const. Co., Inc. v. Matco Electric Co., Inc., 521 F.2d 392 (2 Cir. 1975), Security Insurance Company of New Haven v. White, 236 F.2d 215 (10 Cir. 1956) and Atchison v. City of Englewood, 180 Colo. 407, 506 P.2d 140 (1973), which refute Project’s position. In the last case the court considered many of the same arguments advanced by Project here and concluded:

“We reaffirm the rule that a declaratory judgment is conclusive as to the question raised by the parties and passed upon by the court [citation omitted]. A declaratory judgment, however, does not constitute an absolute bar to subsequent proceedings where the parties are seeking other remedies, even though based upon claims which could have been asserted in the original action ...”

Project admits that its position is to some extent dependent on the principle of collateral estopped, but that principle was effectively abrogated in Louisiana in Welch v. Crown Zellerbach Corporation, 359 So.2d 154 (La.1978).

This question is analagous to the one addressed in Giron v. Housing Auth. of City of Opelousas, 393 So.2d 1267 (La.1981) in which the court held that a plaintiff who sues for specific enforcement of a contract is not prohibited from amending his petition to sue for damages for defendant’s breach. The court held that there is no requirement that a plaintiff choose irrevocably between remedies and that “the common law election of remedies is inconsistent with the modern procedural concepts embodied in our present Code of Civil Procedure ...”

Project’s position is an application of the election of remedies doctrine. It would have us hold that Blaise’s failure to seek damages initially and its seeking only a declaratory judgment (with reservation of its right to seek damages later) constituted an irrevocable election of remedies. We conclude, as we did in the previous case, that Project’s position is without merit and that Blaise had a cause of action for damages even though it earlier sought only a declaratory judgment and even though such damages were sustained before the declaratory judgment became final.

DAMAGES

In the previous case before us the court reached the following conclusions:

1. Blaise was entitled to the names and addresses of Project’s contract par-kers.
2. Project was not entitled to 53 extra magnetic cards.
3. Project was not entitled to paint the walls of an area to reserve for classes of contract parkers.
4. Blaise had the right to the exclusive management of the garage (except for the top two floors) without interference from Project.

In the present case the trial court made the following awards in accordance with the above conclusions:

1. For abuses by Project’s contract parkers of magnetic cards in their possession. $9,000.00
2. For Project’s having been issued 53 extra magnetic cards. $20,000.00
3. For Project’s wrongful painting of 30 green spaces on the sixth parking level. $7,000.00
4. General damages for Project’s interference with Blaise’s management (trespass). $1,000.00

Project contends that these awards are unsupported by the evidence while Blaise contends that it is entitled to an increase to the following amounts:

Item 1 $47,238.00
Item 2 106,692.75
Item 3 10,553.25
Item 4 20,000.00

Blaise’s evidence consisted of the testimony of its president, Edward J. Soniat, its general manager Bilbert J. Boasso, and an economist, Dr. William Barnett. Project produced as witnesses one of its senior executives, Joseph J. Ranna, and its building manager, Thomas Thornell.

Dr. Barnett produced an extensive and complex set of computations which he felt was the only practical approach to estimate the economic losses sustained by Blaise as a result of Project’s violations of the contract. In the previous case, it was established that Blaise and not Project had the right to “oversell: the garage. This means that while Project had received 759 of the 781 parking accommodations available in the garage Blaise could rent to transient par-kers those spaces not being used by the contract parkers at any time. However, since every contract parker had an absolute right to a parking place at all times, it was Blaise’s obligation to limit transient parking to an appropriate number of spaces out of the 759 spaces contracted for.

According to a parking garage expert who testified in the previous case, an operator like Blaise could anticipate that the number of spaces used by contract parkers at any time would be at least 85% so that the operator could never rent more than 15% of the number of parking contracts represented by magnetic cards issued by Blaise to Project and to use his judgment in limiting the number to less than 15% as conditions dictated.

Thus, Barnett’s basic assumption was that of 781 accommodations available in the garage, 150 would be subtracted, because of an arrangement between Project and Shell Oil Company whereby the latter had the exclusive right to the top two floors (this has never been disputed and is not an issue in the case) and 85% of the difference would be further subtracted in order to yield the number of accommodations which should have been available to Blaise for transient parking.

Under the lease between Blaise and Project (discussed in some detail in the previous case before us) Project leased back from Blaise 531 stalls from March 1, 1973, to February 17, 1975, an additional 90 or 621 from February 18 to March 19, 1975, and an additional 138 or 759 (the maximum available) from March 20, 1975. Thus, the number of accommodations which should have been available to Blaise was reduced as Project leased back additional spaces.

Next, Dr. Barnett computed the number of accommodations actually available to Blaise as a result of Project’s violations of the lease beginning with the supposed misuse by contract parkers of magnetic cards issued to them by Project. An understanding of this aspect of the computations required an understanding of some basic facts.

Project had the exclusive right to sell contract parking, i.e., the privilege of parking in the garage, at all times and on an in and out basis, for a monthly consideration. As Project leased back from Blaise spaces for contract parking, Blaise issued to Project that number of magnetic cards which Project in turn would assign as the contracts were sold. These cards were numbered by Blaise and were used to enter and exit from the garage in lanes specified for contract parkers. When inserted at the exit a card’s number was registered in a computer. A transient parker used a different lane to enter the garage so that he would pull a ticket from a “spitter” and would surrender his ticket to and pay a collector upon exiting. Thus, in theory, every ticket pulled to enter would be returned when the parker exited.

However, almost at the inception, Blaise began to experience “lost” tickets, i.e., tickets pulled but never returned. Boasso counted almost 19,000 lost tickets from March 1, 1973, to December 31, 1977, starting with a daily average of 15.59 and reaching 31.18 in December, 1977. It is Project’s theory that these lost tickets were attributable to schemes between contract parkers and parkers who pulled tickets upon entering and borrowed magnetic cards to exit, thus avoiding payment and leaving the tickets unaccounted for.

Dr. Barnett accepted and espoused this theory and deducted the number of lost tickets from the number of parking accommodations which should have been available to Blaise in arriving at the actual number of accommodations available to Blaise.

The next item considered by Dr. Barnett is arriving at the actual number of accommodations available to Blaise as opposed to what should have been available except for Project’s misconduct was the issuance of 53 extra magnetic cards by Blaise to Project.

This aspect of the case dates from December 18, 1974, when the extra cards were issued. Previously, Project had gotten 531 cards from Blaise and on November 11, 1974, Project demanded an additional 53 for the express purpose of keeping the 531 stalls filled, thereby deriving the benefit of oversell as to the spaces sold to contract parkers. Blaise issued them on December 18 under protest, and this court, in the previous case, held that Project was not entitled to the 53 cards since Blaise alone was entitled to oversell the garage.

When Barnett computed the accommodations which should have been available to Blaise he deducted from the total number of spaces in the garage 85% of the legitimately and properly issued cards from Blaise to Project. Now, beginning on December 18 the actual number available to Blaise would be further reduced by 85% or 53 or 45.05.

The last element considered by Barnett in arriving at the actual number of accommodations available to Blaise was Project’s marking off with green paint some 30 spaces with the notice that the space was available only to contract parkers with green decals on their windshields. By way of explanation, Project had conceived of the idea selling contracts at different rates and reserving more desirable areas in the garage for those willing to pay higher prices. In implementing this program it marked off 30 spaces with green paint on the 6th parking level. In the previous case before us the court held that Project had thereby interfered with Blaise’s right to manage the garage in violation of the contract.

It is Blaise’s theory that a transient par-ker looking for a space in the garage would pass up these painted spaces altogether so that the spaces were lost to Blaise as potential for oversell. Barnett figures that whereas Project would ordinarily be entitled to a deduction of 85% if the 30 spaces to arrive at the number of accommodations which should have been available to Blaise, it was now being deprived of an additional 4.5 spaces (15% X 30) and he deducted this to arrive at actual number of accommodations available to Blaise.

The foregoing explanation of the approach taken by Barnett to the three disputed areas is almost sufficient to enable us to reach the issues raised by the parties but fails to include one further point raised in connection with Dr. Barnett’s computation. In order to arrive at a dollar loss to Blaise Barnett divided the entire period of time when the violations occurred into nine periods in which all conditions were constant, including the existence of the violations and rates being charged for transient parking. For each period Barnett divided 88% of the total revenue earned by Blaise from transient parking at the garage by the number of daily accommodations actually available to Blaise during the period. This was in turn broken down for each class of violation by Project for each of the nine periods and totaled to the amount Blaise now claims.

Project argues that Blaise fell short of carrying its burden to prove the loss of profits from Project’s breach of contract with reasonable certainty and without speculation and conjecture as discussed in Recherche, Inc. v. Jewelry Jungle, Inc., 377 So.2d 1329 (La.App. 1st Cir. 1979). Based on this proposition Project would have this court simply deprive Blaise of any recovery. On the other hand, Blaise argues that Dr. Barnett was the only expert called, his factual assumptions were supported by the evidence and his conclusions were reasonable so the trial court erred in failing to grant recovery for the amounts Barnett computed as Blaise’s losses.

As discussed below, Barnett’s assumed facts were not proved with legal certainty and were to some extent based on speculation. The evidence furnished the trial court with a basis for concluding that Blaise sustained some loss but not for the amounts Blaise claimed. The trial court was confronted with a myriad of possibilities which emerged from disputed facts, unclear inferences and conflicting theories. He was in the same position as the trial Judge in Lou-Con, Inc. v. Gulf Building Services, Inc., 287 So.2d 192 (La.App. 4th Cir. 1974), writs refused 290 So.2d 899 and 901, where we observed:

“The difficulty of arriving at Lou-Con’s loss in this case graphically demonstrates the reason for our jurisprudence to the effect that the trial judge must be accorded some discretion in making an award such as this one. . . No matter what figure has been arrived at by the trial judge either side could contend that there was some speculation involved, but we are not persuaded that the trial judge’s award in this case is based substantially on speculation but rather on a sound exercise of his discretion in a reasonable manner.

As to the damage Blaise claims for multiple egress as evidenced by lost tickets, the trial judge was doubtless influenced by these and perhaps other factors: Just because a magnetic card was used more than once in a day and tickets pulled upon entering were not returned, it does not follow that the cardholders engaged in any wrongdoing. A cardholder could have left his card home in the morning and faced with the choice of getting out of his car and having a hassle with the attendant, he simply pulled a ticket and borrowed a co-worker’s card to get out. Barnett’s theory that this wouldn’t happen often because the average parker would realize he was causing some inconvenience for Blaise constitutes rank speculation. Equally plausible is the theory that the average parker in those circumstances would feel that Blaise was paid for his space and he owed Blaise nothing. This could easily account for a significant number of the lost tickets considering that there were hundreds of contract par-kers working in the same building. Surely it was not unusual on each day for a handful of contract parkers out of the hundreds involved to have left cards in other suits, purses, or automobiles or misplaced or forgot them.

Another point the trial judge may have considered is that the remedy suggested by Blaise and requested of Project would not have solved the problem. It is inconceivable that Blaise’s attendants, even if provided with the names and .addresses of contract parkers, could have somehow prevented the multiple use of cards during the peak exiting hours when hundreds of cars were passing through. The evidence seems clear that Blaise did not and could not correct this problem after they were supplied with the list, and, not until a sophistocated “anti-passback” machine was installed, was the problem solved. This machine did not go on the market until 1978.

Finally, the trial judge must have been impressed with the testimony of Project’s witnesses that they got no more than twelve specific complaints about a situation Blaise claims happened 18,700 times.

Project owed Blaise some duty to cooperate and we previously held that this included supplying the list. With the list Blaise could probably have done something to minimize the losses from multiple egress. The trial judge’s award of $9,000 out of the $47,238 claimed by Blaise was within his sound discretion.

As to Blaise’s claim based on the issuance of the 53 extra cards to Project, the figure claimed by Blaise depends on the theory that Blaise necessarily set aside 85% of the 53, or 45.05 spaces for Project’s contract cards which they would otherwise have sold to transient parkers. While we are convinced that Blaise lost something in this connection, we are not persuaded that the trial judge erred in allowing only $20,000 in damages instead of the $106,692.75 claimed by Blaise.

Blaise’s figure depends on the assumption that its personnel consistently set aside for contract parkers 85% of the number of contract cards outstanding. While Mr. Soniat instructed • Mr. Boasso to do this, a fair reading of the latter’s testimony convinces us that, in his day to day management of the garage, he was more concerned with conditions as they actually were when he decided that he could not take on any more transient parkers. In other words, Mr. So-niat’s 85% maximum was simply not workable for an experienced garage operator trying to get the most out of the lot financially-

Additionally, Barnett speculated when he assumed that if Blaise was able to fill a certain percentage of spaces while setting aside the 45.05 spaces for Project, the same percentage of occupancy would have prevailed had Blaise been able to sell the 45.05 spaces to transients.

Finally, Ranna and Thornell testified that they often found the garage filled to the extent that only twelve spots were open which would tend to prove that Boasso did not consistently regard the 45.05 spaces as set aside for contract parkers.

The last question is whether the trial judge abused his discretion in awarding Blaise only $7,000 of the $10,553.25 Blaise claimed in connection with Project’s wrongful painting of green spaces. We note at the outset that Blaise recovered a greater percentage of the amount claimed for this item than for the others indicating that he was more convinced of the validity of Barnett’s assumption in this regard.

It seems clear that many potential transient parkers would have been discouraged from parking in these spaces which were ostensibly reserved for contract parkers so Blaise undoubtedly lost revenue as a result. On the other hand, Ranna and Thornell both testified that they saw some ticketed cars (transients) in the spaces on many occasions which effectively rebutted the theory that Blaise’s potential was completely lost in this area.

Finally, Barnett admitted that the only way he could have arrived at an accurate percentage of total revenues attributable to week or work day parking was to make a detailed study of parking revenue during each hour of every day. However, he said that such a study would have been so costly as to be economically unfeasible. Instead, he estimated that Blaise’s day time working day revenues amounted to 88%. Perhaps the trial judge was not convinced that this percentage was entirely realistic and exercised his discretion in fixing a lower percentage which was reflected in each of his awards. Once again, we cannot conclude that this was an abuse of his discretion.

Project also complains that the award to Blaise of $1,000 for general damages for trespass was unsupported by the evidence. While Barnett did not include in his report any reference outside of the three areas discussed, there was evidence that Project did, over this four year period, infringe upon Blaise’s prerogatives in the garage by distributing leaflets to parkers and establishing a monitoring system. Since Project had no right to engage in such activities they constituted trespassing. When all of the testimony is considered, Blaise suffered some loss for which it is entitled to some compensation. The trial judge’s award of $1,000 was minimal and was an exercise of sound discretion considering that the damage could not be assessed with any degree of accuracy.

CONCLUSION

Accordingly, the judgment appealed from is affirmed, but amended to increase the attorney fees to $43,709.00.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: KLEES, Judge.

license: Public Domain

text:
    Joe E. BARNES v. COMBINED INSURANCE COMPANY OF AMERICA.
    No. 12256.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.
    E. Phelps Gay, Christovich & Kearney, New Orleans, for defendant-appellee.
    Marvin C. Grodsky, New Orleans, for plaintiff-appellant.
    Before SCHOTT, GARRISON and KLEES, JJ.
   KLEES, Judge.

Mr. Joe E. Barnes, plaintiff-appellant, was injured on April 18, 1979 at work. He was later hospitalized at Mercy Hospital in New Orleans from September 30, 1979 to October 12, 1979.

Mr. Barnes proceeded to file a claim for insurance benefits with the defendant insurer but his claim was denied because his hospital confinement did not occur within 90 days of the date of the accident.

After the plaintiff filed suit seeking hospitalization benefits and penalties pursuant to R.S. 22:657 the defendant moved for a Summary judgment. The judgment was rendered in favor of the defendant on September 9, 1980.

Soon thereafter, on September 12, 1980, the plaintiff moved for a new trial and the motion was heard on September 24, 1980. Two days later the plaintiff filed an amending and supplemental petition seeking leave of court to amend and transfer jurisdiction of the case to the Civil District Court in and for the Parish of Orleans. The trial court granted leave of court to amend the suit and transferred the jurisdiction of the ease to the Civil District Court on September 29, 1980. However, on October 8, 1980, the trial court signed an order dismissing the plaintiff’s motion for a new trial and declared his order of September 29, 1980 to be null and void.

The plaintiff’s appeal is based upon the following allegations: (1) that the order of September 29, 1980 divested the court of jurisdiction and with that in mind, the court did not have the authority to sign the order of October 8, 1980 which denied the motion for a new trial and declared the order of September 29, 1980 null and void; (2) that the summary judgment was improperly granted; and (3) that the trial judge abused his discretion when he failed to grant plaintiff’s motion for a new trial.

Did the order of September 29, 1980 divest the trial court of jurisdiction? A similar issue was presented in Hayes v. Muller, 248 La. 934, 183 So.2d 310 (1966). There, as in the present case, the plaintiff’s suit was dismissed and the plaintiff thereafter filed in the district court in the same dismissed proceeding, a pleading styled as a supplemental and amending petition. In reversing the trial judge’s granting of leave to file the amending petition the court stated,

“It is well recognized, of course, in the jurisprudence, and specifically provided by Article 892 of the Code of Civil Procedure, that a petition may set forth two or more causes of action in the alternative, ‘. . . even though the legal or factual bases thereof may be inconsistent or mutually exclusive... ’ And it is also per-missable under Article 1151 C.C.P. for a plaintiff to amend his petition without leave of court at any time before the answer thereto is served. But these provisions presuppose that, when an alternative pleading or an amendment to a petition is filed, there is an original petition or a main demand in esse at the time the alternative demand is proffered or when the amendment is made. Here, there was no petition for plaintiffs to amend and no suit in which an alternative demand could be made. For that suit had previously been dismissed; the judgment had become final and the main demand was no longer extant so that the subsequent demand could not proeedurally become an alternative demand.”

The reasoning of the court in Hayes is applicable to the present suit. Here, the trial court erred when it granted leave to amend the suit since the original petition was dismissed. We can find no error in the trial court’s order of October 8, 1980 declaring its own order of September 29, 1980 null and void.

Was summary judgment properly granted? Our Supreme Court in Thornhill v. Black, Sivalls & Bryson, Inc., 394 So.2d 1189 (La.1981) recognized what was required to successfully obtain a summary judgment:

“[2] It is well settled that a motion for summary judgment should be granted, if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978); Andrew Development Corp. v. West Esplanade Corp., 347 So.2d 210 (La.1977); Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977); Stallings v. W. H. Kennedy & Son, Inc., 332 So.2d 787 (La.1976). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, supra, Andrew Development Corp. v. West Esplanade Corp., supra; Morgan v. Matlack, Inc., supra; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of summary judgment and in favor of a trial on the merits to resolve disputed facts. Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, supra; Andrew Development Corp. v. West Esplanade Corp., supra, Morgan v. Matlack, Inc., supra, Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).”

The pertinent provisions of the policy in question are as follows:

PART I ACCIDENT HOSPITAL INDEMNITY-ANY ACCIDENT
If such Injuries shall be sustained by the Insured, and the Insured shall be continuously confined as a resident in-patient within a hospital, the Company will pay, beginning with the first day of confinement, when such confinement occurs within ninety days of the date of the accident, an indemnity up to the lifetime of the Insured at the rate of $30.00 a day. $900.00 per month and Such Injuries are effected in any accident:
By being struck or knocked down or run over; or
While driving or riding in any automobile, bus, taxicab, or truck; or
While flying or riding in any aircraft; or
By drowning; or
In case of fire or smoke inhalation; or
While hunting, fishing or in any sports activity; or
While at home, at work, at play, or in any other activity whatsoever.
ACCUMULATION: The monthly hospital indemnity benefit stated above will be increased- five percent each six months the policy is in force up to a total maximum increase of fifty percent to a rate of $45.00 a day, or $1,350.00 per month.
PART II CONVALESCENT CARE BENEFIT ANY ACCIDENT
If, following a period of hospitalization for which benefits are payable under Part I, the Insured shall be unable to perform each and every duty of his business or occupation, then the Company will pay the Insured for non-hospital convalescence due to Such Injuries not to exceed the number of days of such period of hospitalization an indemnity at the rate of $15.00 a day.$450.00 per month.
PART III OPTIONAL MEDICAL BENEFIT ANY ACCIDENT
If Such Injuries shall be sustained by the Insured and shall within ninety days from the date of the accident causing Such Injuries, necessitate any hospital, medical or surgical expense at a hospital, doctor’s office, clinic or elsewhere, and the Insured makes no other claim on account of Such Injuries for which indemnity is payable under any other part of this policy, the Company will pay for such expense actually incurred by the Insured an aggregate sum not to exceed a maximum of $20.00.

The plaintiff argues that the terms of the policy are ambiguous and should therefore be interpreted against the insurer. In addition the plaintiff claims that the 90 day provision in the policy is contra bonus mores.

The defendant, on the other hand, avers that the terms of the policy are clear and unambiguous and that the 90 day provision is not against public policy. In support of its position the defendant.cites Fontenot v. New York Life Ins. Co., 357 So.2d 1185 (La.App. 3rd Cir. 1978), writ denied, 359 So.2d 622 (La.1978) and Pierrotti v. Life Insurance Co. of Southwest, 295 So.2d 826 (La.App. 3rd Cir. 1974).

In Pierrotti, the plaintiff was not confined to a hospital during the period 90 days following the date his insurance coverage was terminated as required under the terms of the policy to provide for an extension of benefits. After reading the policy the Court found the terms to be clear and unambiguous and accordingly they were entitled to be given the effect of the law.

In Fontenot v. New York Life Ins. Co. of Southwest, supra, the court was confronted with the task of determining whether a condition in a policy which required the death of the insured to occur within 90 days of the accident was against public policy. After a thorough analysis of the Louisiana Law and the laws of the other jurisdiction, the court concluded that such conditions are not contra conus mores.

In the present case, we find the terms of the policy to be quite clear and easily understood by the ordinary layman. As did the trial, judge, we can find no dispute of material fact. As the appellant was not confined to a hospital within 90 days of the accident as required by the policy he was not entitled to the benefits he sought under the policy.

Appellant additionally contends that the sample copy of the insurance policy and the other exhibits attached to the motion for summary judgment were not proper evidence to be considered by the court on a motion for summary judgment. We find that his argument lacks merits as he failed to object to the attachments either in his memorandum in opposition to the motion or at the hearing of the motion. Le Blanc v. Landry, 371 So.2d 1276 (La.App. 3rd Cir. 1979). The fact that the insurance policy is an uncertified copy is not fatal to the judgment. Lala v. Schoen Life Ins. Co., 342 So.2d 1283 (La.App. 4th Cir. 1977).

Did the trial judge abuse his discretion in failing to grant plaintiff’s motion for new trial? We have carefully reviewed the entire record in this matter and can find no abuse by the trial court in denying plaintiff’s motion for a new trial.

Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.


author: DAN M. LEE, Justice,

text:
    Martha Moore BONDS v. George Mitchell BONDS and Life & Casualty Insurance Company.
    No. 53000.
    Supreme Court of Mississippi.
    Jan. 27, 1982.
    Nora J. Hall, Roy O. Parker & Associates, Tupelo, for appellant.
    Finch & Finch, J. Barry Finch, Iuka, Hugh N. Clayton, New Albany, for appel-lees.
    Before PATTERSON, C. J.. and BROOM and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of Tishomingo County wherein Martha Moore Bonds, complainant/appellant, caused a writ of garnishment to issue against Life & Casualty Insurance Company, who admitted indebtedness to George Mitchell Bonds, defendant/appellee, in the amount of $10,477.28, being the cash value of three separate insurance policies issued to George Bonds. The writ of garnishment was quashed by the chancellor who opined that the cash values of the policies were exempt under Mississippi Code Annotated section 85-3-11 (1972). Aggrieved of this finding, Martha Bonds appeals and we reverse.

On May 24, 1977, George Mitchell Bonds was held in willful contempt of the Chancery Court of Tishomingo County for nonpayment of child support and alimony. A judgment was rendered against him in the amount of $21,006.84, in favor of Martha Moore Bonds, his former wife, for child support and alimony.

In an effort to satisfy a portion of the judgment, Martha Bonds subsequently caused a writ of garnishment to issue against Life & Casualty Insurance Company of Tennessee. Life & Casualty answered the writ, admitting it was indebted to George Bonds for the cash value of three policies issued to Bonds, being: (1) No. 853594 with a cash value of $3,509.45; (2) No. 878333 with a cash value of $3,737.60; and (3) No. 1164454 with a cash value of $3,230.23.

In an attempt to quash the writ, George Bonds asserted the cash surrender value of the life insurance policies was exempt pursuant to Mississippi Code Annotated section 85-3-11 (1972). Martha Bonds answered the assertion to the right of exemption, stating that Section 85-3-11 was inapplicable due to the fact that appellee had the right to change the beneficiary at any time. In fact, George Bonds had exercised his right to change beneficiaries several times.

The chancellor found Section 85-3-11 controlling, so he granted Bonds’ motion to quash the writ and entered a final decree to that effect. Did the chancellor err in quashing the writ of garnishment?

Mississippi Code Annotated section 85-3-11 (1972) provides:

The proceeds of a life insurance policy up to and including the sum of fifty thousand dollars ($50,000.00), including cash surrender and loan values, shall inure to the party or parties named as the beneficiaries thereof, free from all liability for the debts of the person whose life was insured, even though such person paid the premium thereon. In addition to the above exempted amount, all proceeds including cash surrender and loan values, of a policy of life insurance owned by or assigned to another, shall inure to the beneficiary or beneficiaries named therein, subject to terms of any assignment, free from all liability for debts of the person whose life was insured, (emphasis added.)

Appellant contends this statute is inapplicable to the present case due to the fact that appellee reserved the right to change the beneficiary in each policy; therefore, the beneficiary’s interest would not vest until the death of the insured.

This question was well settled by this Court in American Life Insurance Company v. Hauer, 218 Miss. 560, 67 So.2d 523 (1953), the Court stating:

It seems to be settled beyond peradventure that the beneficiary in an insurance policy, where the right to change is reserved, has no vested interest therein until the death of the insured. Lamar Life Insurance Company v. Moody, 122 Miss. 99, 84 So. 135; Bank of Belzoni v. Hodges, 132 Miss. 238, 96 So. 97; Faulkner v. Faulkner, 192 Miss. 358, 5 So.2d 421. (218 Miss. at 565, 67 So.2d at 525) (emphasis added.)

This principle of law applied to this ease simply means the cash surrender value is still controlled or owned by Bonds until his death and does not answer the question presented here which is, does Section 85-3-11 exempt the cash surrender value from an action to garnish these funds to partially satisfy a decree for child support and alimony?

This precise question has not been dealt with to our knowledge in this state; however, this Court in Dreyfus v. Barton, 98 Miss. 758, 54 So. 254 (1910), interpreted what is now Mississippi Code Annotated section 85-3-13 (1972), not the exemption statute involved here, exempting certain proceeds of life insurance policies, made payable to the estate or administrator:

The object of this statute is to secure to the insured a policy, not to exceed three thousand dollars, from liability to any creditor for any debt. This statute exempts the whole proceeds, or any part of it, whether the value accrues during the life or after the death of the insured. The cash surrender value of the policy is just as much “proceeds” of the policy, within the meaning of the statute, as would be the full amount after the death of the insured. In other words, when the person insured dies, the proceeds of the policy are exempt; while he lives, if the policy acquires a cash surrender value, this cash surrender value is “proceeds” within the meaning of the statute, and exempt so long as the value in either case does not exceed three thousand dollars. Any other construction of the statute would impair, if it did not destroy in some cases, the object of the statute.
* * * * * *
The law recognizes this, and also recognizes the fact that in the main the insurance policy is procured for the benefit of dependents, and undertakes to secure it to them, rather than to creditors. Persons insure, frequently, for the very purpose of building up an estate which cannot be taken for the purpose of paying their debts, and frequently these policies of insurance furnish the only protection to the family of the insured against poverty and want. (98 Miss. at 768, 769, 54 So. at 255) (emphasis added.)

Dreyfus, supra, involved the ordinary contractual obligation by which creditors and debtors are created, not child support and alimony payments that are involved here.

This Court has distinguished the ordinary creditor and debtor relationship from child support and alimony judgments for exemption purposes as early as 1932 in the case of Hollis v. Bryan, 166 Miss. 874, 143 So. 687 (1932), interpreting exemptions under a federal act for world war veterans pertaining to child support and alimony, wherein this Court said in part:

However, we think the court was in error in holding that the money due the wife under a decree as alimony was a debt and that the appellant was a creditor, within the meaning of the federal statute. In Fanchier v. Gammill, 155 Miss. 316, 124 So. 365, we held that the obligation of a husband to support his wife is not merely a contractual obligation, but is founded, in part, upon public policy; that it is a public duty established by law, and not a debt within the sense of that term, or in the sense of the Constitution prohibiting imprisonment for debt; . . . We are of the opinion that the term “creditors” used in the federal act has reference to an ordinary contractual obligation by which creditors and debtors are created, and that a wife is not a creditor within the meaning of the statute; and that, therefore, a demand for alimony does not come within the terms of the statute exempting soldiers’ compensation from the claims of creditors. (166 Miss. at 880, 143 So. at 688, 689) (emphasis added!)

To the same effect is Stirgus v. Stirgus, 172 Miss. 337, 160 So. 285 (1935), wherein this Court stated:

The obligation of a husband to support his wife is not a debt in the sense of this statute, but is an obligation growing out of the marriage status and public policy, and may be coerced by imprisonment as well as judgment and execution.. . . (172 Miss. at 341, 160 So. at 286)

A more recent case of this Court distinguishing alimony and child support from the usual creditor/debtor relationship as it applies to exemption statutes is Felder v. Felder’s Estate, 195 Miss. 326, 13 So.2d 823 (1943), which states in part:

The claim for alimony is not sued on as a debt to be put in the form of a judgment in the ordinary sense but rather a legal means of enforcing the husband’s obligation to his wife and children; a duty in which not only the actual beneficiaries thereof, but the public as well, are interested. It is imposed upon him by virtue of the marriage relation, for reasons of public policy, and not as a debt resulting from some business transaction or other contractual obligation. Nor is it a debt in the sense that the husband may obtain a discharge in bankruptcy for liability on account thereof. In other words, the obligation is deemed by the law to be one of a higher degree than the ordinary contractual obligation into which the exemption laws may be presumed to have been written as a part of the undertaking whereby liability for a simple contract debt is incurred, . . . (195 Miss. at 338, 339, 13 So.2d at 828) (emphasis added.)

We therefore hold that Section 85-3-11 is not applicable to this case of child support and alimony.

While it has been said many times by this Court that exemption statutes are to be liberally construed to effectuate their purposes, Dreyfus, supra, United States Fid. & Guar. Co. v. Holt, 148 Miss. 885, 114 So. 818 (1927), even this liberal interpretation must yield when the subject of the garnishment is for child support and alimony which have been specifically excluded from the general exemption statute, the only statute that could apply in this case, which is Section 85-3-1 and provides in part:

The following property shall be exempt from seizure under execution or attachment, to-wit:
(k) All property, real, personal and mixed, for the collection or enforcement of any order or judgment, in whole or in part, issued by any court for civil or criminal contempt of said court; expressly excepted herefrom are such orders or judgments for the payment of alimony, separate maintenance and child support actions, (emphasis added).

The exclusion of alimony, separate maintenance and child support from the exemption statute was apparently brought about by this Court’s decisions in Hollis, Stirgus and Felder, supra, distinguishing alimony and child support from the usual and ordinary creditor and debtor relationship.

Perhaps it can be said that the public policy for alimony is not as strong now in the light of E.R.A., working wives and career women, as it was in 1932, 1935 and 1943 when the Hollis, Stirgus, and Felder, supra, decisions were written, but we hasten to point out that the amended general exemption statute, Section 85-3-1, supra, was effective from and after passage June 15, 1966. Furthermore, public policy with reference to child support has not diminished.

This Court holds that the learned chancellor erred in holding appellee was exempt under Section 85-3-11, supra, and sustaining appellee’s motion to quash garnishment. The order sustaining the motion to quash is reversed and judgment is rendered here against the garnishee defendant in the sums of $3,509.45 on Policy No. 853594, $3,737.60 on Policy No. 878333 and $3,230.23 on Policy No. 1164454. All costs are assessed to appellee George Mitchell Bonds.

REVERSED AND JUDGMENT HERE FOR APPELLANT.

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


text:
    Martha Moore BONDS v. George Mitchell BONDS and Arthur Bonds.
    No. 53007.
    Supreme Court of Mississippi.
    Feb. 10, 1982.
    Roy 0. Parker & Associates, Nora J. Hall, Tupelo, for appellant.
    Finch & Finch, J. Barry Finch, Iuka, for appellees.
   Appeal from Chancery Court, Tishomingo County; James E. Bost, Chancellor.

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

AFFIRMED.


text:
    James ANDREWS, Z. B. Fry, Tommy Akers, Carl Kelly and John Ferguson, Supervisors of Warren County, Mississippi, Paul Barrett, Sheriff, Otto Brannan, Justice of the Peace District # 5 v. WASTE CONTROL, INC.
    No. 53225.
    Supreme Court of Mississippi.
    Feb. 3, 1982.

      Ellis, Braddock & Bost, Gerald E. Braddock, Vicksburg, for appellants.
    Varner & Parker, R. E. Parker, Jr., David M. Sessums, Vicksburg, for appellee.
    Before PATTERSON, C. J., and BROOM and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of Warren County wherein the Warren County Board of Supervisors, Paul Barrett, the Sheriff of Warren County, and Otto Brannan, respondents/appellants, were enjoined from enforcing a resolution passed on September 7,1976, which restricted maximum weight of vehicles traveling on Halls Ferry Road, Warren County, Mississippi, to 30,000 pounds. The chancellor found the resolution and ordinance arbitrary and unreasonable in that the board of supervisors failed to follow the statutory guidelines of Mississippi Code Annotated section 65-7-45 (1972) as to both load limits and tire widths. Aggrieved of these findings, appellants prosecuted this appeal with supersedeas and assign the following errors:

1. The lower court erred in overruling appellants’ demurrers.

2. The lower court erred in overruling appellants’ motion at the conclusion of ap-pellee’s case to exclude the evidence of ap-pellee and dismiss appellee’s bill and enter judgment for appellants.

3. The decree of the lower court ordering the issuance of a prohibitory injunction was contrary to the law and evidence and the decree of the lower court was an abuse of discretion and manifest error.

4. The lower court erred in refusing to sustain appellants’ pleas in bar.

5. The lower court erred in finding the ordinance of the Board of Supervisors of Warren County, Mississippi, was enacted without authority of law, and in decreeing that a prohibitory injunction issue.

Waste Control, Inc. (appellee) is in the business of hauling and disposing of waste products from various commercial and industrial establishments in Warren County. Since 1975 Waste has been hauling refuse for U. S. Rubber and depositing it on the private property owned by Herbert A. Dow-ney, who is also the president of Waste Control, Inc., which property is located at the south end of Halls Ferry Road. The refuse is transported in an 18-wheeled vehicle weighing approximately 30,000 pounds empty and 57,000 pounds fully loaded.

On September 7, 1976, the board adopted a resolution imposing a 30,000-pound weight limit to prevent damage and protect Halls Ferry Road. Although Jimmy Andrews, a member of the board of supervisors and one of the appellants here, did not personally know whether any tests were conducted, he asserted that the weight restriction was based on recommendation from an engineer. Andrews could not relate a similar road to Halls Ferry with 30,000-pound weight limit and admitted it was the only road in the county with a 30,000-pound limit except for 20,000-pound limits over certain bridges in the county.

Waste received citations for exceeding the weight limit on Halls Ferry Road on September 22, 1976, January 11, 1981, and January 21, 1981. Witnesses asserted that others traversed Halls Ferry Road frequently exceeding the weight restriction and without receiving citations. In any event, Waste has continued to use the road without regard to the 30,000-pound weight limit in hauling refuse from the plant operated by U. S. Rubber.

At the conclusion of the hearing, the chancellor found the weight restriction arbitrary and unreasonable in that the board failed to follow the statutory guidelines of Mississippi Code Annotated section 65-7-45 (1972) and “further, that the resolution in question deals with the singular issue of weight limits, whereas Section 65-7-51 specifies that the authority delegated by the legislature to the prospective boards of supervisors deals with, not the singular power to limit weights, but the combination of tire widths and weights, and the regulation in question therefore, does not come within the purported authority granted by the , legislature in that it tends to limit maximum weights only.”

The first assignment of error is that the court erred in overruling appellants’ demurrers. There were seven demurrers filed, one for each of the members of the board of supervisors and one for the sheriff and the justice court judge. These demurrers were identical as to their grounds, as follows: “Petitioner’s petition for injunction states no cause of action against the respondent and there is no equity on the face of the petition, and the petition for injunction of petitioner, Waste Control, Inc., should be dismissed with prejudice at the cost of the petitioner, Waste Control, Inc.” The learned chancellor overruled these demurrers and this Court is unable to find error thereasto because the rule is that all things pled in the petition must be taken as true and the sole question is, does the petition allege a cause of action? We cannot say that the petition, if taken as true, did not allege a cause of action. Ward v. Merchants & Farmers Bank, 394 So.2d 1374 (Miss.1981); Downs v. Corder, 377 So.2d 603 (Miss.1979); Ervin v. United States Fidelity & Guaranty, 365 So.2d 1208 (Miss.1978); and Robinson v. Martel Enterprises, Inc., 337 So.2d 698 (Miss.1976).

Perhaps it would be more concise for this Court to consider assignments of error No. 1 and No. 4 together because they raise jurisdictional questions. No. 1 states that there is no equity on the face of the petition, and Assignment No. 4 says, the court erred in refusing to sustain appellants’ pleas in bar. The first plea in bar was that the chancery court had no jurisdiction. The very able brief of appellants presents the question of jurisdiction of the chancery court in actions which should be confined to the law ■ courts, particularly the criminal courts. The question of jurisdiction of the chancery court to enjoin the board of supervisors from enforcing what is contended to be an invalid ordinance or resolution of the board, and further to enjoin the sheriff and the justice court judge from issuing citations and imposing a criminal penalty, is very well argued in appellants’ brief. Jurisdiction, being a threshold question, will be disposed of first.

The jurisdiction of the chancery court to enjoin the prosecution of criminal law violations is not to be favored and generally the chancery court, a court of equity, should be encouraged to refrain from exercising jurisdiction in such cases. The appellee was given three tickets in violation of the ordinance limiting the weight to 30,000 pounds, one in 1976 and two in 1981. The question here is whether the weight limitation diminishes or deprives appellee of the use of a public road and effectively denies appellee the full use, benefit and enjoyment of his privately-owned real estate used to dump refuse from U. S. Rubber Company under a contractual agreement so as to bring this case within those holding the chancery court has jurisdiction.

It is contended by the appellants that the facts in this case are so similar to those in Pleasants v. Smith, 90 Miss. 440, 43 So. 475 (1907), that it is on all fours with the case at bar. Pleasants dealt with the use of a megaphone on the streets of Clarksdale calling attention to the wares of a merchant wherein it was contended that the loud and unusual noises were in violation of the ordinance of Clarksdale prohibiting a willful disturbance of the peace and quiet of said town. This Court affirmed the chancellor, who denied the injunction on jurisdictional grounds, in an opinion by Chief Justice Whitfield, as follows:

The chancery court had no jurisdiction whatever in this cause. There are no property rights involved, in any proper sense of the word “property.” The constitutionality of the ordinance, if it is assailed, can be determined in the law court. Whether, if constitutional, the appellant is guilty or not, is a question exclusively of criminal jurisdiction, with which equity has nothing to do. The case is wholly unlike Quintini v. Board of Mayor and Marshal of Bay St. Louis, 64 Miss. 483, 1 South., 625, 60 Am.Rep., 62 for there property rights in real estate were directly involved. The case falls squarely within the case of Crighton v. Dahmer, 70 Miss. 602, 13 South., 237, reported in 35 Am.St.Rep., 666, with notes. And see, same case and notes, 21 L.R.A., 84. The general principle insisted upon by the learned counsel for the appellant may be conceded — the principle announced in the case of Quintini v. Bay St. Louis, supra; but in no possible legal view can the appellant be said to have involved here any proper (sic) rights, or to be subjected to any irreparable damage.
(90 Miss. at 449-50, 43 So. at 476)

In Crighton v. Dahmer, 70 Miss. 602, 13 So. 237 (1893), this Court stated:

There are many cases to be found, proceeding upon an obvious and clear distinction, in which courts of equity have enjoined acts affecting property rights, notwithstanding the fact that such acts might also be ground for indictment. To this class are to be assigned the cases of Emperor of Austria v. Day, 3 DeGex, F. & J., 217; Spinning Co. v. Riley, L.R., 6 Eq., 551. In the latter case the chancellor said: “The truth, I apprehend, is that the court will interfere to prevent acts amounting to crime, if they do not stop at crime, but also go to the destruction or deterioration of the value of property.” ...
(70 Miss. at 607, 13 So. at 238)

Concluding in Crighton, supra, this Court stated in affirming the chancellor:

There are a few cases in which the enforcement of void municipal ordinances, the execution of which directly affected property rights, have been enjoined, and criminal prosecutions before the municipal authorities restrained. City of Atlanta v. Gate City Gas-light Co., 71 Ga., 106; Shinkle v. City of Covington, 83 Ky., 420. But, with the exception of Bottling Co. v. Welch and Lottery Co. v. Fitzpatrick, we have found no decisions of any court that a bill in equity may be exhibited for the single purpose of enjoining criminal prosecutions, and against these decisions stand the unbroken line of decisions of all courts of authority.
(70 Miss. at 608, 13 So. at 238) (emphasis added.)

The relief sought in the petition for injunction of appellee in no wise restricts itself to the enjoining of criminal prosecution but to the contrary, in paragraph VI, that the said ordinance has been unconstitutionally and “illegally enforced solely against the petitioner herein invidiously discriminating against petitioner,” denies Waste utilization of the private landfill available to petitioner, denies the use of a portion of Halls Ferry Road from the intersection of Good-rum Road to the terminus of Halls Ferry Road which is approximately 2.8 miles in distance, which must be utilized by Waste to transport and deposit the waste products which it has contracted to remove.

In Paragraph XI appellee alleged deprivation of the use of Halls Ferry Road for ingress and egress to the public landfill operated by Warren County Board of Supervisors. The petition further charges that appellee’s land would be landlocked, would destroy its business and unless enjoined will cause irreparable damage and destruction of said business. Therefore, the case sub judice falls in a category or class of cases that this Court spoke to in Knight v. Johns, 161 Miss. 519, 137 So. 509 (1931), in which the City of Clarksdale adopted an ordinance forbidding barbershops to be open before 7:30 in the forenoon, and/or to remain open for business after the hour of 6:30 in the afternoon, wherein the chancellor granted an injunction. In Knight the Court said:

One of the appellant’s contentions is that an injunction will not lie to restrain prosecutions for the commission of crime.
An injunction will not ordinarily lie to restrain prosecutions for the commission of crime, but will lie in that “class of cases wherein the exercise of property rights is sought to be interfered with by repeated prosecutions under a void ordinance or statute.” Edwards v. DeVance, 138 Miss. 580, 103 So. 194, 195; Fitzhugh v. City of Jackson, 132 Miss. 585, 97 So. 190, 33 A.L.R. 279; Quintini v. Bay St. Louis, 64 Miss. 483, 1 So. 625, 60 Am.Rep. 62, Johnson v. Philadelphia, 94 Miss. 34, 47 So. 526, 19 L.R.A. (N.S.) 637, 19 Ann. Cas. 103.
(161 Miss. at 525-26, 137 So. at 510)
The court below committed no error in enjoining the appellant from continuing to arrest the appellee for violation of the ordinance; ...
(161 Miss. at 527, 137 So. at 510)

This Court likewise adhered to the same reasoning in the zoning case of Brooks v. City of Jackson, 211 Miss. 246, 51 So.2d 274 (1951).

The case sub judice involves an alleged discrimination of use of Halls Ferry Road, rights to use the property to the maximum benefit of the owner and other so-called rights. This Court believes that it cannot therefore fit the facts of this case into the rule of law announced by Pleasants, supra, and Crighton, supra, which in effect hold that the injunction sought must have been for the single purpose of enjoining criminal prosecutions. We do not reach a decision specifically' defining what are property rights as they relate to the use of Halls Ferry Road because it is not necessary in this case.

The next assignments of error are Nos. 2 and 5 which will be treated together for they are relating to the same subject and are treated by the appellants and the appellee in their briefs as Proposition II. Assignment of error No. 2 provides:

The lower court erred in overruling appellants’ motion at the conclusion of appellee’s case to exclude the evidence of appellee and dismiss appellee’s bill and enter judgment for appellants.

Assignment of error No. 5 provides:

The lower court erred in finding the ordinance of the Board of Supervisors of Warren County, Mississippi was enacted without authority of law, and in decreeing that a prohibitory injunction issue.

The learned chancellor entered his decree which stated in part as follows:

That the resolution passed by the Warren County Board of Supervisors dated September 10, 1976, limiting the maximum weight of vehicles traveling on Halls Ferry Road in Warren County, Mississippi is arbitrary and unreasonable in that Defendants did not follow the provisions of § 65-7 — 45 of the Mississippi Code Annotated (1972), and further, that the resolution in question deals with the singular issue of weight limits, whereas § 65-7-51 of the Mississippi Code Annotated (1972) specifies that the authority delegated by the legislature to the prospective Boards of Supervisors deals with, not the singular power to limit weights, but the combination of tire widths and weights, and the regulation in question therefore, does not come within the purported authority granted by the legislature in that it attempts to limit maximum weights only.

The boards of supervisors of the several counties have full jurisdiction over roads within their counties, except where the legislature designated certain highways as state highways. Mississippi Constitution, Article 6, section 170 (1890) provides:

Each county shall be divided into five districts, a resident freeholder of each district shall be selected, in the manner prescribed by law, and the five so chosen shall constitute the board of supervisors of the county, a majority of whom may transact business. The board of supervisors shall have full' jurisdiction over roads, ferries, and bridges, to be exercised in accordance with such regulations as the legislature may prescribe, and perform such other duties as may be required by law; provided, however, that the legislature may have the power to designate certain highways as “state highways,” and place such highways under the control and supervision of the state highway commission, for construction and maintenance. The clerk of the chancery court shall be the clerk of the board of supervisors, (emphasis added.)

See also Mississippi Code Annotated section 19-3-41 (1972).

This grant of jurisdiction must be exercised in accordance with such regulations as the legislature may prescribe, the board of supervisors having no authority other than that delegated to it by the legislature. H. K. Porter Co., Inc. v. Board of Supervisors of Jackson County, 324 So.2d 746 (Miss.1975).

The controversy in the present case evolves around the construction of Sections 65-7 — 13 and 65-7-45. The board contends it has authority to restrict weight loads on county roads by virtue of Section 65-7 — 43, without regard to tire width as prescribed by Section 65-7 — 45.

Section 65-7 — 43 was enacted in 1906 and provides:

The board of supervisors of any county may declare what is or may be an unusual or uncommon load or weight to be conveyed on or over the roads, bridges, or approaches of any bridges in the county, shall have power to protect their roads and bridges from any unusual or uncommon use where the same is likely to injure or impair their usefulness as public highways, and may recover damages for injuries, (emphasis added.)

In 1918 the legislature passed what is now Sections 65-7 — 45 through 67-7-51, inclusive. The act was entitled:

AN ACT to prevent damage to the public roads and bridges by overloaded vehicles, and to authorize the board of supervisors of the various counties in the state to regulate traffic thereon, and prescribing penalties for violation, etc.

Section 65-7 — 45 provides:

The board of supervisors of any county in this state may, at the discretion of such board, by order spread on its minutes, regulate the width of tires and maximum load of any vehicle using the public roads and bridges of such county, or any section or length of any public road, or any particular bridge in such county; but such order shall, before being in full force and effect, be first published in a newspaper published in the county for three consecutive weeks, whereupon such resolution shall be in force and effect, (emphasis added.)

This statute is written in the conjunctive rather than disjunctive; therefore, the phrases concerning the tire width and maximum load must be construed jointly, relating to each other. Myrtle v. St. Louis-San Francisco Ry Co., 239 Miss. 110, 121 So.2d 717 (1960). Moreover, this Court has generally stated the several boards of supervisors are held to the strictest limitations of their powers. Adams v. Bank, 103 Miss. 744, 60 So. 770 (1912). They can do valid acts only consistent with such regulations as the legislature may prescribe. H. K. Porter Co., Inc. v. Bd. of Supervisors of Jackson County, supra.

While Section 65-7-45 provides for publication of the order, Section 65-7-43 does not; however, the board in the present case published its resolution in the manner prescribed by Section 65-7 — 45. Section 65-7-47 merely prescribes the penalty for violation and is styled “Penalty for violating load and tire regulations.” Section 65-7-49 provides for the posting of notices where such regulations have been imposed. Section 65-7-51 provides that the form of such notice be in both tire width and pounds, and follows:

The notice provided in section 65-7-49 shall be substantially as follows: Notice.
Maximum load, including vehicle, permitted on the road or bridge—
On tires two inches in width or less_lbs.
On tires two to three inches in width_lbs.
On tires three to four inches in width_lbs.
On tires four to six inches in width_lbs.
On tires six to ten inches in width_lbs.
On tires over ten inches in width_lbs.

When different code sections deal with the same subject matter, these sections are to be construed and interpreted not only so they harmonize with each other but also where they fit into the general and dominant policy of the particular system of which they are part. Ashcraft v. Board of Supervisors of Hinds County, 204 Miss. 65, 36 So.2d 820 (1948). Courts may also consider the several acts of the legislature touching the subject matter in order to ascertain the legislative intent in the several acts. McAfee v. Southern R. Co., 36 Miss. 669 (1859). In McCrory v. State, 210 So.2d 877 (Miss.1968), this Court stated:

It is a fundamental rule of statute construction that when two statutes encompass the same subject matter, one being general and the other specific, the latter will control. 1 Sutherland, Statutory Construction § 2022 (3rd ed. 1943).
(210 So.2d at 877-78)

Based on the foregoing, this Court believes that Sections 65-7 — 43 and 65-7-45 must be read together with the latter controlling in more particular terms. Therefore, the chancellor was correct in enjoining enforcement of the board’s resolution since the weight restriction was imposed without regard to tire width as required by Section 65-7-45. However, nothing contained herein should be construed to limit the board’s power to regulate weight limitations over roads within its jurisdiction provided the language of the statute is strictly complied with as to both width of tires and maximum load.

There still remains Assignment of Error No. 3 which is, the decree of the lower court ordering the issuance of a prohibitory injunction was contrary to the law and evidence and the decree of the lower court was an abuse of discretion and manifest error. We cannot say from this record that there was manifest error which would be required for us to reverse the chancellor. Cases are legion that a chancery judge is the trier of the facts and this Court cannot reverse unless there is manifest error. Wilson v. Planters Bank of Tunica, 383 So.2d 1089 (Miss.1980); O. J. Stanton & Co. v. Mississippi State Hwy. Com’n, 370 So.2d 909 (Miss.1979).

For the foregoing reasons the decree of the Chancery Court of Warren County should be and the same is hereby affirmed without prejudice as to appellants’ right to pass a new resolution encompassing both width of tires and maximum load.

AFFIRMED.

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


text:
    NATIONWIDE LIFE INSURANCE CO. v. Ernestine GOLDEN.
    No. 53045.
    Supreme Court of Mississippi.
    Feb. 10, 1982.
    T. Kenneth Watts, Kathryn G. Watts, Meridian, for appellant.
    Leon Mangum, Decatur, for appellee.
   Appeal from Circuit Court, Newton County; Marcus D. Gordon, Judge.

Before PATTERSON, C. J., and BROOM and DAN LEE, JJ.

AFFIRMED.


text:
    Billy Joe PRICE v. Patricia Lynn PRICE.
    No. 53259.
    Supreme Court of Mississippi.
    Feb. 10, 1982.
    Laurel G. Weir, Thomas L. Booker, Jr., Philadelphia, for appellant.
    James W. Amos, Hernando, for appellee.
   Appeal from Chancery Court, DeSoto County; Dennis M. Baker, Chancellor.

Before BROOM, BOWLING and DAN M. LEE, JJ.

AFFIRMED.


text:
    Dell Denise House McMILLIAN (McCall) v. Ronald O’Neal McMILLIAN.
    No. 53196.
    Supreme Court of Mississippi.
    Feb. 10, 1982.
    Keith Starrett, Magnolia, for appellant:
    Harry L. Kelley, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Joe G- Moss, Chancellor.

Before SMITH, P.J., ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED.


text:
    George C. REED v. Ruby Jewell REED.
    No. 53197.
    Supreme Court of Mississippi.
    Feb. 10, 1982.
    Brown, Tillman & Rutherford, Winn Davis Brown, Jr., Southaven, Ricco Gatti, Memphis, Tenn., for appellant.
    James F. Schaeffer, Memphis, Tenn., for appellee.
   Appeal from Chancery Court, DeSoto County; L. E. Hannaford, Chancellor.

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

AFFIRMED.


author: ROY NOBLE LEE, Justice,

text:
    In the Matter of the ESTATE OF Mrs. Eunie Elkins MILLER, Deceased, Mrs. Lena Bell Miller Watson, Administratrix v. Frank MILLER.
    No. 53008.
    Supreme Court of Mississippi.
    Feb. 10, 1982.
    Thomas A. Coleman, Ackerman, for appellant.
    Coleman, Coleman & Coleman, Lee S. Coleman, West Point, for appellee.
   ROY NOBLE LEE, Justice,

for the Court:

Mrs. Lena Bell Miller Watson, adminis-tratrix of the estate of Mrs. Eunie Elkins Miller, her deceased mother, and Mrs. Lena Bell Miller Watson, individually, filed suit in the Chancery Court of Choctaw County, Honorable Edward C. Prisock, presiding, to adjudicate herself to be the sole and only heir at law of Mrs. Eunie Elkins Miller and to confirm in herself title to certain lands in which she and her mother had total interest. At trial, the chancellor found that Frank Miller was the sole and only heir at law of J. D. Miller, his deceased father; that Frank Miller inherited an interest in the estate of Mrs. Eunie Elkins Miller, deceased, through J. D. Miller, her deceased son; and that Mrs. Watson and Frank Miller each owned an undivided interest in the subject property.

The assignments of error present the following questions for this Court: (1) Did the lower court err in holding that Frank Miller was the sole and only heir at law of J. D. Miller, deceased, and consequently, was entitled to an interest in the estate of Mrs. Eunie Elkins Miller, deceased; and (2) did the lower court err in failing to hold that Mrs. Lena Bell Miller Watson was the sole and only heir at law of Mrs. Eunie Elkins Miller, deceased, and entitled to the entire estate.

PLEADINGS

Appellant instituted the suit by an instrument referred to as a petition for the appointment of an administratrix, therein praying for the adjudication of petitioner as sole and only heir at law of Mrs. Eunie Elkins Miller and the confirmation of petitioner’s title to certain land as the sole and only heir at law of Mrs. Eunie Elkins Miller, deceased. The petition charged that J. D. Miller was appellant’s brother; that he had never married; that he had never fathered any children out of wedlock; and that he had died intestate on January 31, 1963, survived by his sole heirs at law, Mrs. Eunie Elkins Miller, his mother, and Mrs. Lena Bell Miller Watson, the appellant. The petition further charged that Frank Miller, the appellee, in 1973 claimed to be the illegitimate son of J. D. Miller, deceased. Appellant prayed that the court determine, adjudicate and decree that J. D. Miller died intestate without having fathered any children, legitimate or otherwise; that she be declared the sole heir at law of her mother, Mrs. Eunie Elkins Miller, deceased; and that her title to certain lands in Choctaw County, derived in part from Mrs. Eunie Elkins Miller and J. D. Miller, both deceased, be confirmed in her as their sole and only heir at law.

The appellee answered the petition, denying all averments therein insofar as they disputed any interest of appellee in the estate and land involved. He further averred that he was the only child and sole heir at law of J. D. Miller, his father, and that he was vested with an undivided one-half interest in the land, subject of the suit, through his father, J. D. Miller. In addition, appellee filed a cross-petition to remove cloud and quiet title to his alleged interest in the said lands. Therein he again charged that he was the son and sole heir at law of J. D. Miller, who died intestate, and that he and appellant were the sole heirs at law of Mrs. Eunie Elkins Miller, the deceased intestate.

Appellant answered the cross-petition, therein denying that appellee had any rights whatsoever in the lands involved and that appellee was the son and heir at law of J. D. Miller, deceased. As matters of affirmative defense, appellant pled Section 15-1-7, Miss.Code Ann. (1972), being the ten-year adverse possession statute, and averred that appellee was barred under the statute from claiming an interest in the land and estate. She also set up the defense of laches, contending that appellee waited more than 17 years in which to present a claim to said land and to assert that he was the sole child and heir at law of J. D. Miller, deceased.

In his pleadings, appellee did not claim that he was entitled to inherit from J. D. Miller, deceased, as his illegitimate son, nor did he attack the constitutionality of MCA § 91-1-15 (1972), providing for descent among illegitimates, upon equal protection grounds as discriminating against illegiti-mates. While the appellant did plead the adverse possession statute, Section 15-1-7, Miss.Code Ann. (1972), as a bar to the claim of appellee, she did not plead the six-year general statute of limitations contained in Section 15-1-49, Miss.Code Ann. (1972). The parties, in their pleadings, should have hit the issues of illegitimacy, unconstitutionality and statute of limitations head on like two wild rams during the mating season. Instead, they danced, bobbed and weaved like boxers in the ring, skirting those questions.

FACTS

Appellant’s evidence was to the effect that J. D. Miller never married and that he had no children, legitimate or illegitimate. However, the evidence was overwhelming that Frank Miller, the appellee, was born October 2, 1939, and that his father was J. D. Miller, who was nineteen years of age, and his mother was Ethel Lee Sanders, who was sixteen years of age, at the time of his birth, and that they were unmarried. Subsequently, Ethel Lee Sanders was married to Grover Coleman on July 23, 1944, and he supported Frank Miller thereafter. Frank Miller became twenty-one years of age on October 2, 1960. J. D. Miller died on January 31, 1963. The suit sub judice was filed July 28, 1980, a period of approximately eighteen years having elapsed after Frank Miller had attained his majority.

DECREE

After the parties rested, the court held that it had been established by clear and convincing proof that Frank Miller was the sole and only heir at law of J. D. Miller. At that time, the following colloquy transpired between the chancellor and the attorney representing appellant:

BY MR. THOMAS COLEMAN:
Well, may I ask the relationship of that decision to Section 91-1-15 of the Code which provides that illegitimates may inherit only from their mother?
BY THE COURT:
The Court has held that is unconstitutional.
BY MR. THOMAS COLEMAN:
Your honor, there has been no request on the part of Mr. Miller that the Court hold the section unconstitutional, and I know of no decision in the Supreme Court of Mississippi so holding it unconstitutional. Our position would be that not bringing it up, he has waived whatever right he would have to attack the constitutionality of it.
BY THE COURT:
I do not know whether this answers your question or not, Mr. Coleman, but the Court holds that Section 91-1-15 is unconstitutional by virtue of the holding of the U.S. Supreme Court in Trimble v. Gordon.

The Court decreed that appellant and appellee were the sole heirs at law of Eunie Elkins Miller, deceased intestate, and that each was vested with an undivided one-half interest in the lands involved in the suit. The court also decreed:

6. Title 91, Chapter 1, Section 15 of the Mississippi Code of 1972 is unconstitutional to the extent that it precludes an illegitimate child from inheriting by intestate distribution from the child’s father unless the father subsequently married the child’s mother and then acknowledges the child as his own. Said statute is an unconstitutional denial of equal protection required by the Fourteenth Amendment of the United States Constitution. Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977).

The record does not reflect any mention of the unconstitutionality of Section 91-1-15, supra, until the chancellor held the section unconstitutional at the conclusion of the evidence, upon the authority of Trimble, supra.

Trimble involved the constitutionality of the Illinois Probate Act which allows illegitimate children to inherit by intestate succession only from their mothers, which statute is similar to that of Mississippi. Under the laws of both states, legitimate children are allowed to inherit by intestate succession from both their mothers and their fathers. The United States Supreme Court held that the statutory discrimination against illegitimate children is unconstitutional.

As stated, the record reflects that the constitutional question was not raised by the pleadings, or during the trial of the case below, and the learned chancellor, on his own motion, seized upon and declared the statute, Section 91-1-15 (1972), unconstitutional. In State v. The Cabana Terrace, 247 Miss. 26, 153 So.2d 257 (1963), the court, quoting from Pacific States Box & Basket Co. v. White, 296 U.S. 176, 56 S.Ct. 159, 80 L.Ed. 138 (1935), said:

It is well-settled that the constitutionality of a statute will not be considered unless the point is specially pleaded. 247 Miss. at 37, 153 So.2d at 260.

See also Stewart v. City of Pascagoula, 206 So.2d 325 (Miss.1968); Comfort v. Landrum, 52 So.2d 658 (Miss.1951); Adams v. Board of Supervisors of Union County, 177 Miss. 403, 170 So. 684 (1936).

We are of the opinion that the constitutionality of the statute was not properly before the lower court and that the court erred in declaring the statute unconstitutional of its own volition.

Appellant contends that the claim asserted by appellee was barred by the ten-year statute of limitations, Section 15-1-7, Miss.Code Ann. (1972), which was pled. However, the general limitation statute of six years, Section 15-1-49 (1972), was not pled but appellant argues that the question was sufficiently raised by pleading Section 15-1-7. The proof is insufficient to establish the bar provided by Section 15-1-7.

In Knight v. Moore, 396 So.2d 31 (Miss.1981), Knight was in a mental hospital and wholly incompetent. His illegitimate daughter, Katie Ruth Moore, who had reached her majority approximately eighteen years prior to suit, filed a bill of complaint to establish that she was the illegitimate daughter of Knight and to establish her heirship from him. The evidence was practically uncontradicted that she was the illegitimate child of Knight and that, for a period of 18 years from the time she attained her majority, all of the facts and circumstances relied upon to establish heir-ship were thoroughly known to her. The suit was defended by the guardian of Walter Knight, who failed to raise the bar of the six-year statute of limitations, Section 15-1-49, Miss.Code Ann. (1972). Even though the statute was not pled, this Court raised the statute in his behalf, since Knight was wholly insane, and held that the claim of Katie Ruth Moore was barred six years after she had attained her majority.

In Bridgforth v. Payne, 62 Miss. 777 (1885), the appellant pled the bar of the six-year statute of limitations when he should have pled another statute of seven years. The Court stated:

The appellant having relied upon a statute not applicable, cannot invoke the protection of another not pleaded. A party who pleads or replies to a statute of limitations not appropriate to the action must abide the result. Boyd v. Barrenger, 23 Miss. 269; Trustees v. Gilman, 55 Miss. 148. 62 Miss. at 780.

The above statement of the law is a viable principle today.

Upon the record before this Court, we are of the opinion that the judgment of the lower court should be, and is reversed, and the case is remanded for a new trial on the merits.

REVERSED AND REMANDED FOR A NEW TRIAL ON THE MERITS.

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

      . Arthur Miller died intestate August 14, 1960, leaving as his heirs at law his widow, Mrs. Eunie Elkins Miller, and his children, Mrs. Lena Bell Miller Watson and J. D. Miller.

      . Miss.Code Ann. § 91-1-15 (1972), was amended by Laws, 1981, Chapter 529, and became effective after July 1, 1981.

      . The following cases have upheld the constitutionality of the state laws involved: Allen v. Harvey, Tenn., 568 S.W.2d 829 (1978); Everage v. Gibson, Ala., 372 So.2d 829 (1979); and Lalli v. Lalli, 439 U.S. 259, 58 L.Ed.2d 503, 99 S.Ct. 518 (1978).

      . Knight v. Moore was decided after the lower court heard and decided the case sub judice.


text:
    Otha Lee ROBINSON v. STATE of Mississippi.
    No. 53279 & Misc. 1237.
    Supreme Court of Mississippi.
    Feb. 10, 1982.
    Otha Lee Robinson, pro se.
    Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and ROY NOBLE LEE and BOWLING, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Otha Lee Robinson was tried at the November term, 1980, in the Circuit Court of Lowndes County, Mississippi, found guilty of murder, and sentenced to life imprisonment in the state penitentiary. No appeal was taken from that conviction and sentence. Robinson was represented by a court-appointed attorney.

On May 18, 1981, Robinson filed an instrument in the Circuit Court of Lowndes County, designated as “Notice of Appeal,” and on May 19,1981, he filed an instrument entitled “Petition for a Writ of Error Cor-am Nobis.” These instruments were prepared and filed pro se, were roughly drawn, and not in proper form. , The Lowndes County Circuit Court heard the matters on May 29, 1981, and entered orders denying the petition for writ of error coram nobis on the ground that it was without merit, and overruling the motion for out-of-time appeal on the ground that the evidence was overwhelming as to the defendant’s guilt and that the motion was frivolous. Although there is no record here of an eviden-tiary hearing, the lower court correctly denied the petition for writ of error coram nobis because the relief sought could not be granted under that instrument, even if it had been in proper form. The motion for an out-of-time appeal was properly overruled for the reason that a petition (motion) for an out-of-time appeal must be presented initially to the Mississippi Supreme Court for action. Jones v. State, 346 So.2d 376 (Miss.1977). Therefore, we affirm the lower court in Cause No. 53,279.

On August 26, 1981, Robinson filed a pro se petition with this Court for an out-of-time appeal, which appears on the docket as Miscellaneous No. 1237. The petition was passed for consideration along with Cause No. 53,279. Robinson avers that after sentence was passed upon him on November 13, 1980, he made known to the trial judge that he desired an appeal to the Mississippi Supreme Court; that he was told to talk with his court-appointed attorney; and that said attorney advised Robinson and his family that he could not appeal the conviction. The petition is supported by the affidavits of Hattie V. Robinson, Margaret Robinson, and Llease Robinson, relatives of Otha Lee Robinson, which set out that Otha Lee Robinson’s court-appointed attorney stated in their presence that he could not appeal the conviction and sentence and, because of that advice, no appeal was taken on behalf of Robinson.

In Jones v. State, 355 So.2d 89, 91 (Miss.1978), this Court said:

An accused is not only entitled to counsel at trial, but he is entitled to counsel on appeal from a conviction on the merits. If he is an indigent and unable to afford an attorney, then he is entitled to a court-appointed attorney at trial and on appeal. On the other hand, if he is able to afford an attorney at trial but subsequently is reduced to the status of an indigent, then he is entitled to have a court-appointed attorney to represent him on appeal.
If the allegations of appellant’s petition and the affidavits attached thereto are correct, then he has been denied, through no fault of his own, equal protection of the law in that he has been denied the right to have his conviction reviewed on appeal.
Therefore, the Clerk of this Court is directed to send a copy of Jones’ petition for appeal to the Circuit Court of Madison County, Mississippi, to be filed therein. The trial court shall afford petitioner an opportunity for a hearing within a reasonable time to which the defendant may summons witnesses as in other cases. The purpose of the hearing shall be to determine whether petitioner is an indigent and whether his trial attorney denied him his right to perfect an appeal within the time prescribed by statute through misrepresentation to the petitioner regarding his right to a court-appointed attorney on appeal. If the court finds that the petitioner has not sustained his allegations by a preponderance of the evidence, the court shall order the petition dismissed. An appeal may be had from that order. On the other hand, if the lower court finds that the allegations of the petition have been sustained by a preponderance of the evidence and the petitioner is indigent and has no retained counsel, then the court shall appoint an attorney to represent petitioner on appeal. The court-appointed attorney shall then take all necessary steps prescribed by statute to perfect an appeal from the original judgment of conviction within the time allowed by law, such time to run from the date of the court’s order appointing such attorney.
A copy of the petition for appeal together with this order shall be sent by the Clerk of this Court to the district attorney and circuit judge, or senior circuit judge, if more than one, where petitioner was convicted.

The clerk of this Court is directed to send copies of the petition for appeal filed here, together with this opinion and order, to the appropriate circuit judge, district attorney, and circuit clerk for an evidentiary hearing as outlined in Jones v. State, supra. Robinson having suggested his indigency and requested the court to appoint an attorney for him, the trial judge should conduct an evidentiary hearing to determine whether or not Robinson is in fact indigent and, if so, appoint an attorney to represent him.

AFFIRMED AS TO CAUSE NO. 53,279; PETITION FOR APPEAL IN MISC. NO. 1237 REMANDED TO THE LOWER COURT FOR HEARING,

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