Cantrell v. Peugh

*26 Holden, P. J., delivered the opinion of the court. The appellee, "W. Gr. Peugh, sued the appellant Tom Cantrell in the justice court on a note for two hundred dollars, with a credit thereon of three dollars and eighty cents, making the principal and amount due one hundred ninety-six dollars and twenty cents, and obtained judgment. The note bore interest at the rate of eight per cent., and provided for reasonable attorney’s fees, “if the note was placed in the hands of an attorney for collection.” Cantrell appealed to the circuit court, and furnished bond in double the amount of the judgment with two sureties thereon. The note was filed with the justice of the peace for suit, but had not been placed in the hands of an attorney for collection, and no attorney was employed at the time the suit was filed to prosecute the suit for collection of the note. "When the case reached the circuit court, the appellant Cantrell moved the court to dismiss the case because: First. The justice of the peace had no jurisdiction, for the reason that the principal of the note, together with the interest and attorney’s fees provided, would amount to more than two hundred dollars. Second. The appellant Cantrell moved the court to stay the proceeding on the ground that he had filed a petition in bankruptcy, and had been adjudicated a bankrupt, and expected at some future time to file a motion for his discharge. The bankruptcy proceedings mentioned were properly presented to the judge of the circuit court, whereupon he overruled the motion and proceeded to trial, which resulted in a verdict against the appellant and his sureties for the amount sued for. *27 Third. The appellant Cantrell, defendant below, objected to going to trial because of the absence of two alleged material witnesses in his behalf, and made the proper showing. The court overruled this motion for a further delay of the case, all of which was objected to by the appellant. Therefore it will be seen that we have three points to decide, and shall immediately proceed to their determination. We think the trial judge was within his discretion in refusing to stay the proceedings in his court on account of the adjudication of bankruptcy of the appellant, because the Federal Bankruptcy Act (section 11a [USCA section 29], of the National Bankruptcy Act, p. 5) provides, in substance, and means, as we understand, that, after a petition is filed in bankruptcy, and before it is acted upon, the proceeding in the state court must be stayed until the petitioner is adjudicated a bankrupt or his petition dismissed; but it is within the discretion of the trial judge, after the petitioner is adjudged a bankrupt, to decide whether or not he will further delay the case in his court. 1. It seems also that, where the petitioner has been adjudged a bankrupt, and has afterwards filed his motion for a discharge, and these facts are brought to the attention of the trial judge of the state court, the proceeding in the state court will be stayed until his discharge. But it will be observed in the case before ns that the appellant Cantrell, according to his pleadings, had been adjudged a bankrupt; and therefore the trial judge could, in his discretion, proceed with the case, and did so properly. No move had been made under the Federal Bankruptcy Act for a final discharge at the time the trial judge of the state court decided to proceed with the appellant’s case; so it is plain to us that the action of the trial judge was not error. See Gilbert’s Collier on Bankruptcy (13th Addition 1923) pp. 397, 398. *28 We think the justice of the peace had jurisdiction in the case, because the test-as to his jurisdiction is whether or not the principal, exclusive of interest, damages, and costs, amounts to more than two hundred dollars. N. O. R. R. v. Evans, 49 Miss. 785; Jackson v. Whitfield, 51 Miss. 202. The note here involved was not placed in the hands of an attorney for collection; and the record discloses that no attorney appeared in the suit at the time it was filed, which is the time that fixes the principal amount sued for. It does not appear to us, as we understand the record, that any attorney’s fees were ever claimed in the case. Therefore the attorney’s fees cannot he included as a part of the principal of the demand in the case, and the court was correct in so holding. Parks v. Granger, 96 Miss. 503, 51 So. 716, 27 L. R. A. (N. S.) 157, Ann. Cas. 1912B, 232, not in point. 3. As to whether or not the court error in not granting a continuance, or in not passing the case on account of the absence of two of the appellant’s witnesses, we find, from the record, that the court was within its discretionary power in overruling this motion. If what these witnesses would have testified to, if present, was material in the case, which seems to he in some respects doubtful, still the record shows that the appellant was not diligent in having process issued and served at the time the case was set for trial in the circuit court. Therefore we think the circuit judge was right in refusing to delay the trial. In view of these -conclusions, the judgment of the lower court is affirmed. Affirmed.