Canal Bank & Trust Co. v. Brewer

Citation147 Miss. 885,113 So. 522
Decision Date06 June 1927
Docket Number26527,26344
PartiesCanal Bank & Trust Co. Et Al. v. Brewer Et Al.[*]
CourtUnited States State Supreme Court of Mississippi

113 So. 522

147 Miss. 885

Canal Bank & Trust Co. Et Al.
v.
Brewer Et Al.[*]

No.s 26344, 26527

Supreme Court of Mississippi

June 6, 1927


(two cases). (In Banc,)

1. INJUNCTION. Preliminary injunction against assignments of notes by insolvent held properly dissolved as to assignment to attorneys for legal services and retained as to assignment to daughter.

Preliminary injunction, in suit to set aside alleged fraudulent assignments by insolvent of notes, of one-half interest therein to attorneys in consideration for legal services in recovering possession [147 Miss. 886] of notes, and one-half interest to daughter for a recited consideration of cancellation of debt to her and assumption of debt due by assignor to his wife, held properly dissolved as respected assignment to attorneys, and retained as to assignment to daughter. (Affirmed by divided court.)

2. APPEAL AND ERROR. Case cannot be remanded without decision for hearing newly-discovered evidence.

Case cannot be remanded from supreme court without decision for hearing by chancellor of newly-discovered evidence which was unknown at time case was tried in lower court.

3. JUDGES. Motion in vacation to dissolve preliminary injunction granted by special judge under agreement of attorneys held improperly presented to chancellor of another district (Hemingway's Code, sections 716, 718, 262; Constitution 1890, section 165)

Where member of the bar in accordance with agreement of attorneys as authorized by Constitution 1890, section 165 (Hemingway's Code, section 716 [Code 1906, section 996]), was appointed to preside in place of regular judge, who was disqualified, and injunction was issued therein, a motion to dissolve such injunction in vacation was improperly presented to chancellor of another district after certification of regular chancellor's disqualification under Hemingway's Code, section 718 (Code 1906, section 998 [Ann. Code 1892, section 922]), since section 262 (Code 1906, section 506), expressly providing that chancellor may with consent of parties or solicitors try causes and deliver opinions and sign decrees in vacation, is not limited to regular chancellors.On motion to correct decree. Motion overruled. For former opinion, see 113 So. 552.

1. COSTS. Five per cent damages on unsuccessful appeal is in nature of compensation to successful appellee for expenses incurred (Hemingway's Code 1927, section 3407) Allowance of 5 per cent damages under Code 1906, section 4926 (Hemingway's Code 1927, section 3407), in case of unsuccessful appeal, is in the nature of compensation to the successful appellee for expenses incurred by him through wrongful appeal by his adversary. 2. COSTS. Law allowing damages on unsuccessful appeal must be strictly construed against claim of successful party (Hemingway's Code 1927, section 3407). [147 Miss. 887] Code 1906, section 4926 (Hemingway's Code 1927, section 3407), allowing 5 per cent, damages in case of unsuccessful appeal, must be strictly construed against the claim of the successful party. 3. STATUTES. Chief aim of courts in construing statute should be to reach Legislature's real intention; construction Winging about unthought-of and unjust results will be avoided if possible. In construing a statute, chief aim of courts should be to reach real intention of the Legislature, and construction which will bring about manifestly unthought-of and unjust results will be avoided if possible, and, if necessary to avoid such results, courts will widen or narrow letter of statute. 4. COSTS. Lam authorizing damages on unsuccessful appeal field inapplicable to appeal from interlocutory decree (Hemingway's Code 1927, sections 9, 3407). Code 1906, section 4926 (Hemingway's Code 1927, section 3407), providing for 5 per cent damages in case of unsuccessful appeal, held applicable only to final decrees and not to appeals from interlocutory decrees under Laws 1924, chapter 151, section 17 (Hemingway's Code 1927, section 9), requiring joint action of court and appellant.

HON. S. I. OSBORN, Special Chancellor, and HON. N. R. SLEDGE, Chancellor.

Suit by the Canal Bank & Trust Company and another against Earl Brewer and others. From decrees dissolving preliminary injunctions granted therein, complainants separately appeal, and defendants cross-appeal. Affirmed as to one appeal, and reversed as to other, and case remanded.

See, also, 112 So. 394. [147 Miss. 888]

Maynard, FitzGerald & Venable, for appellants.

I. Jurisdiction of Judge Sledge. In our opinion the stipulation of counsel and the appointment of him by the governor constituted Judge Sam I. Osborne the sole and exclusive power to hear and determine Cause No. 3851 in all of its branches and no earthly power could remove him from that position other than impeachment.

Kelly v. Kiershy, 79 Miss. 168, has absolutely no bearing on whether or not Judge SLEDGE could exercise jurisdiction herein. As stated by Judge MoGowen in Cashin v. Murphy, 138 Miss. 853, "Sections 995, 996, 998, Code of 1906 (Hemingway's Code, sections 715, 716 and 718) contain and comprise all the law of Mississippi on the subject of the disqualification of a judge and aside from the statement contained in the Constitution were under the common law." See, also, McCloud v. McCloud, 88 Miss. 729.

It is our first contention that no chancellor can act out of his own district in vacation, and can act out of his own district in term time only by virtue of section 717, Hemingway 's Code (Code of Mississippi, section 996). This is plainly announced in Adams v. Kyzer, 61 Miss. 407.

Our idea of the statute is based on the statment in the law, section 689, Code of 1906 (section 467, Hemingway's Code). If however, this court should differ with us and hold that under section 998, Code of 1906 (section 718, Hemingway's Code), upon the disqualification of the rightful judge of the Seventh chancery court district and a certification by him that the judge of the Third chancery court district, the Honorable N. R. Sledge had the right to come into the Seventh chancery district in vacation and hear a cause there, then, nevertheless, we still say without fear of contradiction that under the agreement, Exhibit A hereto, and the appointment by the governor, Exhibit B hereto, the Honorable Harvey McGehee had already been disqualified and that the Honorable Sam I. Osborne was the sole and exclusive presiding judge in [147 Miss. 889] Cause No. 3851 in the Seventh chancery court district of Mississippi.

But the appellees answer to this that under the decision of Kelly v. Kiersky, 79 Miss. 168, Judge Sam I. Osborne, being a special chancellor appointed by the governor, could not act in vacation. Our reply to this is: (1) That the appellees having agreed that Judge Osborne could try the case in vacation were in no position, without his certificate of disqualification, to ask any other chancellor to act, under the objection of appellants; and (2) Judge Sledge had no authority to act until it had been certified to him by Judge" Osborne that he, Judge Osborne, was disqualified.

The hearing before Judge N. It. Sledge was coram non judice, and this case should be reversed on that ground alone.

II. The liability of Brewer to the Canal Bank & Trust Company on the notes of Gidden & Townsend and McNally. The Canal Bank & Trust Company received these notes as collateral security for the five hundred thousand dollars owing to it by Mr. Holland. They were received for a present loan and in good faith, and the bank occupied then and now the position of bona-fide purchasers and holders for value. Jones on Collateral Security, section 89, page 105; Swift v. Tyson, 16 Pet. 1 (10 Ed.), page 865; Brooklyn, etc., R. R. Co. v. Nat'l Bank, 102 U.S. 14, 26 L.Ed. 61; Dix v. Tully, 14 La. Ann. 456; Smith v. Isaacs, 23 La. Ann. 454; La. State Bank v. Gaiennie, 21 La. Ann. 555; Gardner v. Maxwell, 27 La. Ann. 561; Steeg v. Godifer (La.), 102 So. 407; First Nat'l Bank v. McGrath, 111 Miss. 672; Joyce on Defences to Commercial Paper, section 561; Am. Nat'l Bank v. Hill, 169 N.C. 235, 85 S.E. 209; Jones on Collateral Security, section 104.

If the bank had failed to sue Brewer or to collect the Gidden & Townsend and McNally notes to the best of its ability, it would be liable to Holland for such failure. [147 Miss. 890]

Brewer's defenses are untenable and fallacious. He is estopped to set up that his endorsement was voluntary or for accommodation; and this cannot be true for the reason that Mr. Earl Brewer and Mr. Ed. Brewer endorsed these notes at the time of their taking by the bank. Benjamin Pearl v. Cartwright, 81 Miss. 300; Stubblefield v. Roper et at., 136 Miss. 831.

The other defense that Mr. Brewer makes to these notes is that the notes have been subordinated. This is no defense. This court has decided in Tarleton v. Bank of England, 23 Miss. 173, that although the proceeds of a mortgage should be distributed pro rata among all the notes secured by the mortgage, yet, nevertheless, the owner of all the notes may, if he so desires, subordinate certain ones of these notes to the payment of certain other ones of said notes and the maker or co-maker or endorser of all the notes cannot complain. See Goar v. McCanless, 60 Miss. 248; Pugh v. Hold, 27 Miss. 461, 468; Trustees v. Prentiss, 29 Miss. 46; Cheesborough v. Milliard, 1 John. Ch. 2, 412 (7 Am. Dec. 494); Union Bank of Maryland v. Edward, 1 Gill & J. 363; First Nat'l Bank v. Powell, 149 S.W. 1096; Barkwell v. Swann, 69 Miss. 907; Picard v. Shantz, 70 Miss. 381; Clopton v. Spratt, 52 Miss. 251; Chaffee v. Telliaferro, 58 Miss. 544; Payne v. Commercial Bank, 6 S. & M. 24.

All of the above cases have reference solely and entirely to a surety on the notes. In this case We insist that Mr. Brewer is not a surety, nor is his cousin, Mr. Ed. Brewer, surety; but they are both in equity and in law co-makers and under the decision of Tarleton v. Bank of England, 23...

To continue reading

Request your trial
3 cases
  • Mississippi Cent. R. Co. v. Roberts
    • United States
    • Mississippi Supreme Court
    • April 8, 1935
    ... ... Oil ... Co., [173 Miss. 490] 141 Miss. 356, 106 So. 449; ... Canal Bank & Trust Co. v. Brewer, 147 Miss. 885, 113 ... So. 522; Smith v ... ...
  • Canal Bank & Trust Co. v. Brewer
    • United States
    • Mississippi Supreme Court
    • June 6, 1927
  • Dinsmore v. J.H. Calvin Co.
    • United States
    • Alabama Supreme Court
    • June 9, 1927
    ... ... public policy, resting upon the principle of mutual trust and ... confidence implied in the marital contract. Laton v ... Balcom, ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT