State v. Fitzgerald , 76 Miss. 502 ( 1898 )

Woods, C. J.,

delivered the opinion of the court.

Cyrus, one of the original defendants, interposed the plea of the general issue at the October term, 1897, of the circuit court, and while this plea remained, and without any suggestion of the death of Cyrus, or any revivor against his representatives, at the succeeding term Fitzgerald, as administrator of Cyrus, filed his plea in abatement, on the ground that the land commissioner had no authority to institute the suit. To this plea in abatement the plaintiff demurred and the demurrer was by the court overruled. The parties then went to a jury on the plea in abatement, and under instruction from the court returned a verdict on that plea in favor of the defendant, and thereupon the suit was by the court dismissed.

Before this, however, an order had been entered dismissing the suit as to the Yazoo. & Mississippi Yalley Bailroad Company, one of the defendants. A motion was thereafter promptly made by counsel for plaintiff to set aside this order of dismissal, for the reason, as stated in the motion, that this order had been made in the absence of plaintiff’s counsel, and without his knowledge or consent. This motion was never acted upon, so far as the record discloses.

The second error assigned goes to the alleged action of the trial court in not sustaining the motion to strike from the files the plea in bar and the plea in abatement; but no such motion appears in the transcript, nor, of course, any action, of the court upon it.

The record is most imperfect and unsatisfactory, but some of the errors complained of aie manifest.

The plea in abatement was improperly filed while the plea in bar remained undisposed of. But if the same had been properly filed and a trial properly had on it, the action of the court in instructing the jury to find on that issue for the defendant was incorrect. The lands from which the cross-ties had been cut bad, long before the suit was instituted, been forfeited to the state for nonpayment of taxes, and title was vested in the state, and the land commissioner was authorized to institute suits of this character. While the commissioner has charge of the sixteenth section lands as such for supervisory purposes only, it is clear that after such lands had been sold or leased to citizens and have become subject to taxation, if they are forfeited for nonpayment of taxes to the state, after the time allowed by law for redemption shall' have expired, it is the duty of the commissioner to protect them as any other lands belonging to or under the control of the state. Moreover, if other lands had been selected for school purposes in lieu of this sixteenth section, it was never part of the lands dedicated as a sixteenth section to school purposes, and was always subject to sale for nonpayment of taxes; and these questions were for determination on a trial on the merits, on proper pleadings. See §§ 2565,. 2566, 2589 and 2590.

Reversed and remanded.