Equitable Life Assur. Soc. of United States v. Gex' Estate

Decision Date27 February 1939
Docket Number33566
Citation186 So. 659,184 Miss. 577
PartiesEQUITABLE LIFE ASSUR. SOC. OF UNITED STATES v. GEX' ESTATE et al
CourtMississippi Supreme Court

APPEAL from the chancery court of Hancock county HON. D. M. RUSSELL Chancellor.

Suit by the estate of Walter J. Gex, Sr., deceased, and others against Equitable Life Assurance Society of the United States of America and another, for a decree approving and validating a partition agreement and for a decree for amount of monthly installments of total and permanent disability benefits allegedly due under an assignment to attorneys of insured. From an adverse decree, the Equitable Life Assurance Society of the United States of America appeals. Reversed and remanded.

Reversed and remanded.

Watkins & Eager, of Jackson, for appellant.

Complainant is precluded from bringing this suit by virtue of the orders of the Civil District Court of Orleans Parish, Louisiana, and the stipulation keeping the the same in force, both as assignee, privy, attorney and by estoppel.

Davis v. Natchez Hotel Co., 158 Miss. 43, 128 So. 871; Fisher v. Pacific Mutual Life Ins. Co., 72 So. 846, 112 Miss 30; Lbr. Co. v. McGraw, 178 So. 377.

Any defense good as against the assignor at the time of the notice to the debtor of the assignment is equally good against the assignee.

6 C. J S. 1164; Farr v. Land Co., 188 F. 10; Fewell v. New Orleans, etc., R. R. Co., 144 Miss. 319, 109 So. 843; Kapelovitch v. White, 203 N.W. 134; Sections 505 and 506, Code of 1930.

The assignee is bound by every step taken or action had in regard to the suit in the Circuit Court of Hancock County, Mississippi, and the injunction proceedings in Louisiana and would have been so bound even had appellant had notice of the assignment, which is not true here, since complainants, her assignees, were as a matter of fact real parties to the suit in the circuit court as beneficiaries of part interest in the cause which was prosecuted in the name of the assignor pursuant to permission given by statute, i.e., the assignee was a party by representation.

Bates v. Berry, 219 P. 83; Becknal v. Becknal, 296 S.W. 916; 34 C. J., Judgments, pages 995, 996; Hauke v. Cooper, 108 F. 922; McClelland v. Rose, 247 F. 721; Peters v. Gallagher, 37 Mich. 407; Sayre v. Detroit, 171 N.W. 502; Section 505, Code of 1930; Section 717, Code of 1906; Solomon v. Baking Co., 174 Miss. 899, 166 So. 376; Utilities Co. v. Nunnally, 10 S.W.2d 391.

All proceedings in the suit in the Circuit Court of Hancock, Mississippi, including the pendency thereof, and the stipulation filed therein as well as injunctive proceedings aimed thereat, are binding upon complainants here as attorneys.

Bell v. George. 204 S.W. 516; Hardwood Co. v. West Lbr. Co., 248 F. 123.

Complainants are estopped from bringing this suit.

Cleveland v. Heidenheimer, 44 S.W. 551; 5 C. J. 966; 6 C. J. S. 1167; Oil Co. v. Mills Co., 241 S.W. 122; Rubin v. Leosatis, 166 A. 428.

A grant to an attorney of a portion of a fund which is to be recovered is not an assignment of a part of the cause of action but merely of the fund when and if collected and suit cannot be brought by the assignee upon such an assignment.

Cochran v. Henry, 65 So. 213; 6 C. J. S. 1140, 1142, 1055-6; 5 C. J. 845-6; Hofferberth v. Duckett, 162 N.Y.S. 166; Nichols v. Orr, 166 P. 561; Richard v. National Transportation Co., 285 N.Y.S. 870; Spellman v. Bankers Tr. Co., 6 F.2d 799.

The bill of complaint is demurrable in that the cause of action is split.

6 C. J. S., par. 126, pages 1180-1181; Fewell v. N. O. & N.E. R. Co., 144 Miss. 319, 109 So. 853; Pittman v. Chrisman, 59 Miss. 124.

The present suit must be abated because there is another prior suit pending.

Armstrong v. Phillips, 198 P. 499; 1 C. J. S., pages 739-740, 942 and 957; Miller v. Bode, 139 N.E. 456; State v. Large, 145 So. 346, 164 Miss. 318; Section 517, Code of 1930; U.S. v. Goodhues, 53 F.2d 696.

This suit cannot be brought in Hancock County, Mississippi.

Venue in Hancock County cannot be justified upon the ground that it is the county "where the plaintiff resides."

Burgin v. Smith, 141 So. 760; Griffith's Chancery Practice, section 151; Huff v. Murray, 158 So. 475; Oliver v. Logue, 50 Miss. 323; Sections 363, 474, 497 and 1565, Code of 1930.

This suit cannot be brought in Hancock County because service of process in this case could not be had upon the insurance commissioner so as to make the last sentence of Section 497 applicable.

Morris & Co. v. Skandinavia Ins. Co., 161 Miss. 411, 137 So. 110, 73 L.Ed. 762.

The venue here cannot be justified upon the ground that this is a matter in the estate of Walter J. Gex, deceased, in the Chancery Court of Hancock County, Mississippi.

Pate v. Taylor, 66 Miss. 97, 5 So. 515.

The attempt here to give territorial jurisdiction to the Chancery Court of Hancock County is a fraud upon the court.

Nicholson v. R. R. Co., 172 So. 306.

Territorial jurisdiction cannot be sustained upon the ground that appellant had an agent upon whom process could be served in Hancock County.

Firemen's Fund Ins. Co. v. Cole, 169 Miss. 634, 152 So. 872; Fidelity & Cas. Co. v. Cross, 127 Miss. 31, 89 So. 780; Great Southern Life Ins. Co. v. Gremillion, 145 Miss. 314, 107 So. 770; Great Southern Life Ins. Co. v. Gilmer, 146 Miss. 22, 111 So. 741; National Surety Co. v. Board of Supervisors, 120 Miss. 706, 83 So. 8; Saxony Mills v. Waggoner, 94 Miss. 73, 47 So. 899.

Walter J. Gex, Jr., of Bay St. Louis, and Green, Green & Jackson, for appellees.

This court will keep in mind that citizens, especially Mississippi citizens, acquiring in good faith a property interest in a transitory cause of action, may, consistently with Mississippi's policy, assert those rights in Missisippi's courts.

New Orleans, etc., R. v. Wallace, 50 Miss. 244; Pullman Co. v. Lawrence, 74 Miss. 800, 22 So. 53; Vicksburg, etc., R. Co. v. Forcheimer, 113 Miss. 531, 74 So. 419; Sections 4165 and 4166, Code of 1930; Railroad Co. v. Poole, 72 Miss. 487, 16, So. 753.

Neither the orders of the Civil District Court nor the stipulation in Hancock Circuit Court in Cause No. 2303 affect any other suit or the assertion of any other cause of action.

Missouri Pac. Ry. Co. v. Harden, 158 La. 889, 105 So. 2; Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 169 Miss. 196, 150 So. 205, 292 U.S. 143, 78 L.Ed. 1178, 92 A.L.R. 928; Protective Life Ins. Co. v. Lamarque, 177 So. 18; U.S. F. & G. Co. v. Yost, 183 So. 260; New Orleans Brewing Co. v. Cahall, 188 La. 749, 178 So. 339; Southern Pacific Co. v. Baum, 38 P.2d 1103; Lindsey v. Wabash Ry. Co., 61 S.W.2d 369; New York C. & St. L. R. Co. v. Meek, 1 N.E.2d 611; Kern v. Cleveland, C. C. & St. L. R. Co., 204 Ind. 595, 185 N.E. 446; State ex rel. v. Nortoni, 85 A.L.R. 1345, 331 Mo. 764, 55 S.W.2d 272.

There is presently vested in the Estate of Walter Gex and in Walter Gex, Jr., past due installments for disability benefits and future installments yet to accrue during the life of Mrs. Gillin; likewise the future installments due Mrs. Gillin, and the Mississippi Coast is substantially a part of Louisiana and there is no legal right in this nonresident insurance company to compel the appellees to submit to the jurisdiction of the Louisiana Courts, to employ Louisiana counsel, to qualify as a Succession in Louisiana, if it be essential, and to do those other things that are requisite, nor did the injunction or the stipulation so do.

14 R. C. L. 417, sections 119, 121.

Neither Gex, Sr., his estate, Walter Gex, Jr., nor the policies are presently within the jurisdiction of the Louisiana court, and jurisdiction over the person and things conditions the validity of a judgment.

Pennoyer v. Neff, 95 U.S. 714.

Appellant contends: Any defense good as against the assignor at the time of the notice to the debtor of the assignment is equally good against the assignee. Where to, we answer: Properly limited and circumscribed, this is a correct principle of law, but here wholly inapplicable.

Armfield v. Nash, 31 Miss. 361; Williams v. Luckett, 77 Miss. 394, 26 So. 967; Thorne v. True-Hixon Lbr. Co., 167 Miss. 266, 148 So. 388; Homochitto Development Co. v. Jones, 154 So. 720, 170 Miss. 125; Adams v. Yazoo, etc., Co., 24 So. 200, 77 Miss. 194, 60 L.R.A. 33.

The assignee of any chose in action may sue for and recover on the same in his own name, if the assignment be in writing.

McInnis v. Rather, 111 Miss. 55, 71 So. 264.

It is true that as the statute now stands, an assignee is not a necessary party, but on the other hand, the assignee may, if it elects, so sue.

Hauke v. Cooper, 108 F. 922; Bates v. Berry, 219 P. 83; 34 C. J. 995, 996; Sayre v. Detroit, 171 N.W. 502; Peters v. Gallagher, 37 Mich. 407; Becknal v. Becknal, 296 S.W. 916; Utilities Co. v. Nunnally, 10 S.W.2d 391; McClelland v. Rose, 247 F. 721.

There is no injunction, has never been and can never be one in Louisiana prohibiting Gex & Gex from asserting that to them validly assigned and by them presently owned in the State of Mississippi.

That vested in the Estate of Walter Gex and in Walter Gex, Jr., is a present right to specific past due installments, with a right to receive future installments designated when and as they accrue.

An assignment of a sum of money due or to become due will pass to the assignee only so much as a construction of the instrument shows was intended to pass.

Peck-Hammond Co. v. Williams, 27 So. 995, 77 Miss. 824; Whitney v. Cowan, 55 Miss. 643.

Gex & Gex are the assignees and entitled to have to them paid the specific amounts declared to be to them due.

Field v. Ware, 28 Miss. 56; Ross v. Merrimack Veneer Co., 92 So. 823, 129 Miss. 693; Pass v. McRea, 36 Miss 143; Hutchinson v. Simon, 57...

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