Simmons v. Felder 1 Miss. Dec. 484

W. F. Simmons v. C. M. Felder.

Appeal — Error.

The appellate court will not assume matters of fact raised by counsel, which were not introduced in the court below.1

Two bales of cotton in the possession of 0. 0. Felder were levied on by the sheriff of Pike county under an execution against C. C. Felder in favor of appellant, and O'. M. Felder filed a claimant’s issue, and on trial before the justice court in Osyka,'Miss., the two *485bales of cotton were adjudged to tbe claimant. An appeal was prosecuted to the Circuit Court, and on the trial of the case it developed that the cotton in question was grown by the claimant and belonged to him individually, and that the farm upon which it was grown was located in the State of Louisiana. The cotton was hauled to Osyka upon the wagon of 0. 0. Felder, judgment debtor. The question of residence of the claimant was raised for the first time on appeal to the Supreme Court in the brief for appellant.

From a judgment for the claimant, plaintiff appeals.

Appealed from Circuit Court, Pike county, J. B. Chrisman, Ludge.

Affirmed,

March 2, 1885.

Attorneys for appellant, J. J. Stokes and J. 0. Lamkin.

Attorneys for appellee, 8. E. Packwood and J. B. Sternberger.

*486Brief of J. J. Stokes:

The facts which, are shown in evidence, and which are not disproved, i. 6. that claimant attempted to remove the cotton from the State, that the judgment debtor, in the presence of the claimant, asserted that the cotton belonged to James Morris and called upon Morris to claim it; that the judgment debtor insisted that the officer making the levy should mark the cotton with Morris’ name, the claimant being present, and the decidedly significant fact that no notice was given that this claimant here had any interest, and that no claim was made until two days after the seizure of the cot-don, are amply sufficient, we think, to prove fraud and collusion between the judgment debtor and this claimant, to defeat the levy and save the cotton for the former.

If it be true that this claimant grew the cotton with the consent of his father and mother, it is still liable to the execution for his father’s debt unless the claimant had been emancipated, be*487cause lie was a minor and subject to and supported by Ms father. Hamilton v. Booth, 55 Miss. 60.

If the claimant was emancipated, he must have been emancipated under the laws of Louisiana, being a resident of that State. No effort was made to prove that he had been emancipated. The laws of Louisiana require that in order to emancipate a minor, he must be of the full age of fifteen years, and that a declaration shall be made by the father or mother that he (or she) does emancipate the minor before a notary public in the presence of two witnesses. The mother to act only in case of the death of the father. Civil Code of La., art. 369.

It was attempted to show that the land on which the cotton was grown belonged to the claimant’s mother and that she allowed him to cultivate if for his own benefit. If that were so, it does not change the standing of claimant. He was not emancipated and under the laws of Louisiana all property, whether real or personal, is community property and all profits or revenue arising therefrom belong to the husband, and all debts created during the marriage must be acquitted out of the common fund. Civil Code of La., arts. 2369, 2370-2373.

Question oe Jurisdiction.

Brief of J. C. Lamkin:

The amount in controversy in this case is the value of two bales of cotton levied on by the constable — the question tried before the Circuit Court was not as to the amount of the execution, but whether or not two bales of cotton claimed by C. M. Beider could be subjected to the payment of the execution. While this is an appeal to the Circuit Court from a justice of the peace and the amount of the execution does not exceed the sum of $50, the amount of the execution was not in controversy, and the only thing in controversy was as to the ownership of two bales of cotton which is valued by the officer at $100. The cases of O’Leary v. Harris, 50 Miss. 13, and 51 Miss. 202, do not apply in this case; section 2354, Code of 1880, does not exclude this appeal.

It is evident from the testimony in the case that O. C. Beider used his son, the claimant, to perpetrate a fraud upon the plaintiff in execution. There is nothing to show that the son had been *488emancipated, and while a creditor cannot compel the son of his debtor to work for him, still, unless emancipated, the earnings of the son are liable for the father’s debts. 50 Miss. 60.

The judgment debtor and claimant lived in the State of Louisiana and there the mere fact of the father allowing his son to cultivate land, being part of the same land cultivated by the father, will not amount to emancipation. Civil Code of La., art. 369.

Clearly under the state of facts the court should have granted third instruction asked for by plaintiff, and should have refused the instructions asked for by the claimant.

The jury, under all the statements of the facts as shown in the record should have brought in a verdict for the plaintiff.

On Motion to Dismiss por Want op Jurisdiction.

Brief of Packwood & Sternberger:

This ease should be dismissed, as the “ amount in controversy ” (which means, we take it, the original judgment in the suit), does not exceed the sum of $50. Code, § 2354; 51 Miss. 202; 57 Miss. 826; 59 Miss. 362.

It may be contended that the amount in controversy, in the language of the statute, means the value of the cotton in this case, and not the amount of the original judgment. But, if this be the proper construction of this statute, and a rule of this kind were to obtain in cases involving the claimant’s issue, carried up to this court, the inevitable result would be that this court would be called upon to decide eases involving this issue where the original amount in controversy was any sum under $50, no matter how contemptible. As a matter of public policy can this court afford to give the statute such a construction ?

Aside from this, however, there is nothing in the record to show the value of the cotton. Por aught this court can know, at the time these two bales of cotton were seized they were not worth $50.

A father may partially or wholly emancipate his minor sons. Children cannot be compelled to work for the benefit of their father’s creditors. In other words, if the father i*etains the labor of his children for himself, its fruits are liable for his debts; but, if he do not retain their labor, then its fruits are not liable for his debts. Hamilton v. Booth, 55 Miss. 60.