Opinion
No. 32391.
January 11, 1937.
JUDGMENT.
Judgment of court that it was without jurisdiction of cause held res judicata of other pleas to its jurisdiction then filed.
APPEAL from the chancery court of Prentiss county. HON. JAS. A. FINLEY, Chancellor.
Jas. A. Cunningham, of Booneville, for appellant.
Our courts have made it clear that a cause must first be tried on its merits and that the sustaining of a plea to the jurisdiction cannot be set up as an estoppel against the litigants in a subsequent suit.
Parsons-May-Oberschmidt Co. v. Furr, 70 So. 895; 34 C.J., page 795, sec. 1214, pages 774 and 775, sections 1193 and 1194, and page 781, sec. 1200.
In order for an adjudication to constitute an estoppel there must be: (1) identity in the thing sued for; (2) identity in the cause of action; (3) identity of persons and parties to the action; (4) identity of the quality in the person for or against whom the claim is made.
Jones v. George, 89 So. 281; Creegan v. Hyman, 43 So. 954.
The legislative purpose in granting immunity to sheriffs and constables from being sued in circuit courts was to lessen the danger of their being called out of their jurisdictions at times when the people might suffer from lack of police power and law enforcement, and it was founded upon a preservation of public rights, but the Legislature never put it in the letter of the law that deputies should so be held immune, for the reason that every sheriff has the body of the county out of which to select deputies, general deputies and special deputies, and the fact that a deputy might have to go to court cannot in any way affect the public safety in the enjoyment of proper police protection.
Arnett v. Smith, 145 So. 638. Fred B. Smith, of Ripley, for appellee.
The action of the court in sustaining similar pleas to a former identical suit, between the same real parties, was res adjudicata on the issue of jurisdiction in this cause.
Robertson v. H. Weston Lbr. Co., 124 Miss. 606, 87 So. 120; Blackbourn v. Senatobia Educational Assn., 74 Miss. 852, 21 So. 798; 34 C.J. 743, 763, 779, 795, 868, 873 and 874; Adams v. Y. M.V.R. Co., 77 Miss. 194, 24 So. 200, 60 L.R.A. 33, 180 U.S. 1, 45 L.Ed. 395.
W.L. Elledge, of Fulton, for appellees.
Green, Green Jackson, of Jackson, amicus curiae.
The judgment of the court below rendered in September, 1935, holding that it was without jurisdiction of this cause may not be res judicata as to whether the appellee is now a public officer within the meaning of section 495, Code of 1930, but it is res judicata of the other pleas to its jurisdiction then filed, and the court below committed no error in so holding.
Affirmed.