Associates Discount Corp. v. Clark, 41804

• Decision Date: 10 April 1961
• Docket Number: No. 41804,41804
• Citation: 128 So.2d 535,240 Miss. 723
• Parties: ASSOCIATES DISCOUNT CORPORATION v. Burton E. CLARK et al.
• Court: Mississippi Supreme Court

Page 535

128 So.2d 535

240 Miss. 723

ASSOCIATES DISCOUNT CORPORATION v. Burton E. CLARK et al.

No. 41804.

Supreme Court of Mississippi.

April 10, 1961.

Overstreet, Kuykendall, Perry & Phillips, Thomas W. Crockett, Jr., Jackson, for appellant.

Daniel, Coker & Horton, F. F. Lotterhos, Jr., Jackson, for appellees.

JONES, Justice.

This case was appealed from the Chancery Court of the First Judicial District of Hinds County. In May 1959, Clark was injured as a result of an automobile collision, he colliding with a car owned and driven by W. C. Bowen. In June of that same year, Bowen being a nonresident, Clark filed suit in the chancery court under our statute authorizing attachments in chancery against nonresidents, seeking to recover damages for such injuries. The company having possession of the car of Bowen, which had been damaged in said collision, was made a party, as was Emmco Insurance Company, which company held the collision insurance on Bowen's car. Associates Discount Corporation filed an intervention petition alleging it held a chattel mortgage (which was not recorded in Mississippi) executed under the laws of the State of Louisiana on the car which had been attached, and that as mortgagee it was entitled to the proceeds of the insurance on said car by reason of the mortgage clause in the policy, and that it was also entitled to enforce its mortgage lien against the car.

Before the final hearing, the insurance company paid the insurance money amounting to $1,250.67 to the chancery clerk awaiting final disposition by the court. By agreement, the automobile was sold and the proceeds of such sale amounting to $625 was also held by the clerk of the court for final determination. On the final hearing, Clark recovered a judgment against Bowen for the sum of $15,000. There is no appeal by Bowen and that issue is not before us.

In the final decree the lower court directed the payment of the proceeds of the sale of the car as well as the proceeds of the insurance to Clark and dismissed the claim of Associates Discount Corporation thereto, from which order the said Associates Discount Corporation appeals.

There are two questions involved: (a) Does the word 'creditor' in Section 870 of the Mississippi Code of 1942 include such a claimant as Clark? (b) Do the proceeds of the collision insurance follow the car, and as between Clark and Associates Discount Corporation, which would be entitled to receive same? Our statute governing attachments in chancery are Sections 2729 and 2730, Mississippi Code of 1942, and read as follows:

'Section 2729: Non-residents--absent or absconding debtors. The chancery court shall have jurisdiction of attachment suits based upon demands founded upon any indebtedness, whether the same be legal or equitable, or for the recovery of damages for the breach of any contract, express or implied, or arising ex delicto against any nonresident, absent or absconding debtor, who has lands and tenements within this state, or against any such debtor and persons in this state who have in their hands effects of, or are indebted to, such non-resident, absent or absconding debtor. The court shall give a decree in personam against such non-resident, absent or absconding debtor if summons has been personally served upon him, or if he has entered an appearance.'

'Section 2730. Attachments against non-residents--how effects or indebtedness bound. When a bill shall be filed for an attachment of the effects of a non-resident, absent or absconding debtor in the hands of persons in this state, or of the indebtedness of the defendant in this state to such non-resident, absent or absconding debtor, it shall be sufficient to bind such effects or indebtedness, that the summons for the defendant resident in this state shall have stated in or endorsed upon it the nature and object of the suit, and that it is to subject the effects in the hands of the resident defendant, and the indebtedness of such defendant to the non-resident, absent or absconding debtor, to the demand of the complainant; or, instead of such statement on the summons, a copy of the bill may be served with the summons, and shall bind the...