Bradford v. Creekmore

• Decision Date: 22 March 1926
• Docket Number: 25369
• Citation: 142 Miss. 565,107 So. 524
• Court: Mississippi Supreme Court
• Parties: BRADFORD et al. v. CREEKMORE et al. [*]

107 So. 524

142 Miss. 565

BRADFORD et al. v. CREEKMORE et al. ^[*]

No. 25369

Supreme Court of Mississippi

March 22, 1926

(In Banc.)

INJUNCTION. Where drainage district was started but not organized, and preliminary expenses were incurred, on failure of sheriff to answer or defend suit to enjoin him from collecting acreage tax, refusal to permit certificate holders to litigate issues involved, in his name, on giving bond to indemnify, him against liability was error (Laws Miss. 1912, chapter 197; Const. U.S. Amend. 14; Const. Miss, section 112).

Where a drainage district was started under chapter 197, Laws of 1912, but never organized, and preliminary expenses incurred and an acreage tax levied against the lands embraced in the proposed drainage district, and a bill was filed against the sheriff to enjoin the collection of such taxes, and the sheriff fails to answer or defend said suit, it was error to refuse to permit certificate holders to litigate the issues involved in the name of the sheriff, on giving bond to indemnify the sheriff against liabilities, in the said suit.

HON. N R. SLEDGE, Chancellor.

APPEAL from chancery court of Calhoun county, HON. N. R. SLEDGE Chancellor.

Suit by Dr. R. A. Creekmore and others against the sheriff and others, holders of certificates of indebtedness, for an injunction against the sheriff alone. A preliminary injunction was issued against the sheriff alone, and the bill on motion of complainants was dismissed as against the other defendants without prejudice. From a final decree making the injunction perpetual, based on a decree pro confesso against the sheriff, N.W. Bradford and others appeal. Reversed and remanded.

Judgment reversed and cause remanded.

McLean & McLean and N.W. Bradford, for appellants.

The bill made Hawkins, the tax collector, a party and also made all the owners of the certificates of indebtedness parties, setting up various and sundry reasons why the "whole proceedings were void," said bill prayed that all the defendants answer the bill, and prayed for an injunction against all the defendants to the bill.

When the court convened and the defendants were ready to proceed with their motion to dissolve the injunction, the complainants in the original bill made a motion to be allowed to dismiss without prejudice their bill as to all of the defendants except Hawkins, the tax collector. This motion was objected to by the defendants as to dismissing the bill without prejudice; they were willing, of course, that the complainants be allowed to dismiss their bill, but contended that since certain rights had accrued to defendants, the court should not dismiss the bill without prejudice.

The court, however, allowed the complainants in the original bill to dismiss the same without prejudice, refused to allow defendants anything at all, even the damages which they sustained upon the suing out of the injunction, and even dismissed the cross-bill of the defendants. In addition to this, the court gave the complainants a decree pro confesso as against Hawkins, the tax collector, and then entered a decree making the injunction perpetual as against the tax collector.

Counsel for the complainants in the court below took the position that the holders of the certificate of indebtedness were not necessary parties, that they had no interest in this litigation, had no right to answer the bill, but that the only party who had a right to answer the bill and litigate the questions presented was the tax collector and that since he had failed to answer the bill, a decree pro confesso should be entered against him and that he be perpetually enjoined from selling the lands. Strange to say the chancellor sustained this position. We have here a decree entered against an unnecessary party as binding upon the real parties with whom the complainants declined to litigate.

We had supposed until the court made its rulings that nothing is better settled in all equity pleadings and proceedings than that the parties who hold the real interests were absolutely necessary parties to all proceedings affecting their interests, and that a decree rendered in a suit in which they were not parties was a nullity.

According to the great weight of authority in America and in England the officer holding the writ of authority is not even a proper party. 32 C. J., p. 298, sec. 499; Hoover v. Young, L. R. A. 1915F 1120 and notes, 68 So. 769, 3 L. R. A. (N. S.) 257 and notes.

Under the general rule all persons whose interests will necessarily be affected by the decree or without whose presence a complete settlement of the questions involved in the action could not be attained, are of course, properly joined as defendants, so also persons without whose joinder no effectual decree can be rendered in plaintiffs favor, are indispensable parties; since the court ought not to interfere at all except in a mode which would be effectual for the purpose of the decree. 20 R. C. L., pp. 667-8; 14 R. C. L., p. 327, sec. 28; Shields v. Barrow, 17 How. 130; and also 254 U.S. 65. L.Ed. 148; Lemon et al. v. Dun et al., 61 Miss. 210.

Our contention is this: The tax collector is clearly not a necessary party, but the bondholders or holders of the indebtedness were indispensable parties.

W. J. Evans and A. M. Carothers, for appellees.

This appeal deals simply with the matter of the restraint of the collection of the drainage tax levied under chapter 197, Laws of 1912, for the purpose of paying for preliminary expenses when the district was never organized.

The lands of the appellees in this case had been advertised for sale by S. T. Hawkins, sheriff and tax collector, for the collection of a tax of one dollar and thirteen cents per acre which had been levied thereon by the board of supervisors. In such a case who was the proper party, the indispensable party, to restrain by injunction from the sale of said lands? The sheriff and tax collector, of course; the man who was advertising the lands for sale and the man who, but for the restraining process and orders of the court, would proceed to sell same. Does any peculiar sanctity attach to the appellants in this case which does not attach to those interested in or concerned with the levying of, or the fruits of the collection of, any other taxes? Can it be said that in every suit to restrain the collection of taxes all those who might be affected by said tax, or who might be beneficiaries of the money to be derived from said tax, must be before the court in an injunction proceeding? To ask the question is to answer it. If this be true, the whole body politic would have to be hailed into court every time the collection of a tax was sought to be restrained.

The man who stood charged with the responsibility for the collection of this tax was the sheriff and tax collector, S. T. Hawkins, and every defense to the bill of injunction could have been interposed by the sheriff and tax collector. We call the court's attention to the fact that Hawkins, the sheriff and tax collector, was not only the necessary and, in fact, the indispensable party defendant to this suit, but he also had a very real interest in the outcome of the litigation, as the sale of these lands and the collection of these taxes meant quite a good deal to him in a financial way.

It was a vain and useless thing to litigate with the certificate-holders when the matter could be settled and the relief prayed for, obtained, in the issue drawn between the landholders on one side and the sheriff and tax collector on the other; and the relief as prayed and obtained in the instant proceedings was a restraint on the sheriff and tax collector from selling the land of the complaining parties.

The best authorities sustain our views that the proper and necessary party defendant is the officer charged with the duty of making sale of the land or with the execution of process. Anderson v. State et al., 23 Miss. 472; North v. Peters, 138 U.S. 271.

Counsel for appellants cite only a portion of 32 C. J., p. 298, section 479, but we refer the court to the whole section. In the cases cited in the footnotes in support of this text, after citing North v. Peters, 138 U. S. supra, and other cases, it is stated: (Note 47) "See Brooks v. Lewis, 13 N.J.Eq. 214. (On bills to restrain the execution of process, or the performance of official acts, the sheriff is made a party, as the design of the injunction is to restrain him from acting; but where no relief is prayed, and no decree asked against the officer, it is not necessary, nor usually expedient, for the sheriff to answer.)" (50) Robertson v. Tabscott, 81 Va. 533, 549. ("It is very difficult to perceive how the very object of the bill--the prevention of the sale of the property--could have been certainly attained without making, in such a case as this, the commissioner of sale a party.")

These authorities and the ones cited by appellants deal principally with judgment execution and process in the hands of sheriffs, and we think that they do not apply to the case at bar. As to restraining tax sales, the true rule is announced in High on Injunctions (4 Ed.), sec. 576. See also 37 Cyc., Taxation, pp. 1273-74; Jones v. Sligh, 75 Ga. 7; Cardwell Land Co. v. Smith, 146 N.C. 199, 59 S.E. 653.

The court will see from these authorities that the officer who is charged with making the tax sale is the necessary and indispensable party to the suit brought to restrain the tax sale and that other persons who are either directly or indirectly interested in the proceeds of the tax or for whose special benefit the tax was levied are only held to be proper parties and, therefore, are not necessary and indispensable parties by any means. We know of no decision by our own court that is directly in...