Berry v. Dampier
| Decision Date | 16 April 1923 |
| Docket Number | 23183 |
| Citation | 95 So. 744,131 Miss. 893 |
| Court | Mississippi Supreme Court |
| Parties | Berry Et Al. v. Dampier Et Al. |
January 1920
APPEAL AND ERROR. Where stenographer's notes of evidence not sent up, or stricken, presumption that evidence supported chancellor's decree.
The presumption that the evidence supported the decree of the chancellor will prevail, where the stenographer's notes of the evidence are not sent up as a part of the record or have been stricken from the record.
HON. D M. RUSSELL, Chancellor.
Suit by John D. Dampier and others against A. C. Berry and others. From a decree for plaintiffs, defendants appeal. Affirmed.
Livingston & Milloy, for appellant.
We regret exceedingly that the stenographer has failed and neglected to file his notes taken on the hearing of this cause, and while we are, for that reason, unable to argue the evidence adduced on the hearing, yet we are permitted to submit this cause on the pleadings of the appellees and on these there is no escape for appellees as to the fact that the claims which they asked the court to adjudicate are barred and precluded by law and that the court erred in rendering a decree in this cause giving the appellees any relief whatever. We submit that if the law means anything the court below was utterly without power to grant any relief whatever, because there was no question of the expenses of collection before the court in any way. There was no claim or dispute as to the expenses incurred in the collection of the assets on the part of the liquidating agent, but the contention of appellees is and was that the court should allow their claims and thereby prefer them to the stockholders. This the court was without power to do. And the court having allowed claims that the petition itself showed were barred, is such error as this court will review and reverse. Magee & Gibson, for appellees.
The decree of the chancellor in this case is presumed to be correct. There appears in the record no evidence upon which the decree was based and the presumption is that the chancellor had before him at the time he made the decree evidence warranting the conclusion which he reached. As a matter of fact the decree recites that the cause was filed for the purpose of obtaining directions of the court for the distribution of the funds on hand, and it also recites that appellees at the request of stockholders had paid this money with the understanding and agreement that they were to be repaid out of any funds on hand, etc. The chancellor had the minutes of the stockholders' meeting before him upon this question and these minutes preclude appellants from making any complaint now as to the distribution of the funds. It would be manifestly unfair and inequitable for the stockholders to say to appellees that if they would put up additional money they should be repaid this money as a preference claim, and then be allowed to repudiate the agreement as shown by the minutes of stockholders' meeting. In other words, the appellants could not be so allowed to take advantage of their own wrongs.
Undoubtedly the chancery court had jurisdiction of this cause. We take it that the cause was and is peculiarly within the jurisdiction of this court. We submit that the decree upon its face recites all the necessary jurisdictional facts, and shows on its face that it is manifestly right, just and equitable. As said before the chancellor had all the evidence both oral and documentary (the minutes of the stockholders and minutes generally of the bank) before him when he passed upon the case, and his finding is presumed to be correct.
The appellees filed a petition in the chancery court of Lawrence county, Miss., averring, in substance, that -they were directors of the Hebron Bank, a banking corporation formerly domiciled at New Hebron, Miss.; that on the 25th day of October, 1918, the said bank went into liquidation and was taken over and administered by the Banking Department of the State of Mississippi; that after all the debts and obligations of the bank, which were required by law to be paid by and through the state banking department, had been paid and satisfied, said banking department called a meeting of the stockholders of the bank and turned over to them the remaining assets of the bank as required by law; that at this meeting the stockholders elected the petitioners, appellees as' liquidating agents of said bank; that as such liquidating agents they had collected out of these assets the sum of about one thousand eight hundred dollars. The petition further averred that the said bank was in a failing...
To continue reading
Request your trial