Carter v. Kimbrough

• Decision Date: 26 April 1920
• Docket Number: 20961
• Court: Mississippi Supreme Court
• Parties: CARTER et al. v. KIMBROUGH et al

84 So. 251

122 Miss. 543

CARTER et al. v. KIMBROUGH et al

No. 20961

Supreme Court of Mississippi

April 26, 1920

March 1920

1 EQUITY. Dismissal of bill as to certain persons and claims final, where no further proceedings contemplated; "final decree."

A decree of a court of equity is final which dismisses the bill as to certain persons and claims, where the decree recites that it is final as to those persons and claims, and when there is no further hearing or proceedings contemplated being taken as to such claims or persons, even though the decree is not final as to other claims in the bill, and when further proceedings are to be taken as to some of the defendants.

2. EQUITY. After term court of equity cannot set aside decree when matter completely disposed of.

It is well settled that a court of equity has no power after the expiration of the term at which the decree is rendered to set it aside when the matter adjudged is completely disposed of. Such decree can only be corrected by an appeal, or, in proper case, by a bill of review. Sagory v. Bayless, 13 Smedes & M. 153. Shirley v. Conway, 44 Miss. 434; Lane v. Wheless, 46 Miss. 666, cited.

3 EQUITY. Supplemental bill cannot be filed after dismissal of bill: requisites of supplemental bill stated.

In order to file a supplemental bill, it must be shown that the matter relied on as supplemental has arisen since the commencement of the original suit; or that the facts have become known to the complainants in such way that he could use them, since the cause has passed the stage at which it might have applied for leave to amend; or that they have been prevented by inadvertence, mistake, or other cause specifically shown, from availing themselves of the matter at the proper stage of the case; and must be confined to such matter. It cannot be filed after the dismissal of the bill.

4 EQUITY. Bill of revivor must be against personal representative of deceased defendant.

In order to bind the estate of a deceased defendant, the bill of revivor must be filed against the executor or administrator. It is not sufficient to make his heirs defendants.

5 EQUITY. Bill combining separable subjects and demanding different relief against defendants without community of interest is "multifarious."

While it is difficult to lay down any universal rule as to what constitutes multifariousness in equity pleadings, it is clear that, where a bill combines separable subjects, demands different modes of relief against defendants not having a community of interest in all or any of the subjects, and against whom the complainant does not assert a common right, it is "multifarious," and a demurrer to it should be sustained. Roberts v. Starke, 47 Miss. 257; Darcey v. Lake, 46 Miss. 109, and other cases. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

APPEAL from the chancery court of Lafayette county, HON. JAS. G. MCGOWEN, Chancellor.

Bill by R. C. Carter and others, as stockholders or depositors in the Merchants & Farmers Bank of Oxford, Miss., against Duke M. Kimbrough and others, as directors, etc., to recover money lost through their negligence resulting in the bank's insolvency. Final decree dismissing the bill as to certain claims and certain parties, and thereafter the complainants filed a bill of revivor and supplement against the original defendants or their representatives, new parties, the receivers, the United States Fidelity & Guaranty Company of Baltimore, Md., and others. On demurrers by separate groups of defendants the bill of supplement and revivor was dismissed, and complainants R. C. Carter and others appeal. Affirmed.

The appellants, R. C. Carter and numerous other persons, being depositors, and some of them stockholders, of the Merchants & Farmers Bank of Oxford, Miss., filed a bill in the chancery court against Duke M. Kimbrough, W. D. Porter, W. L. Goodwin, E. O. Davidson, G. W. Buffaloe, Sr., E. D. Beanland, J. M. Matthews, Miss Maud Heard, executrix of S. H. Plant, deceased, Bradley Kimbrough, Mrs. P. H. Wright, Jr., and Mrs. John W. McCall, for the recovery of money lost as alleged through the negligence and misconduct of the directors of the said Merchants & Farmers Bank, in which they declared that loans to various parties set out in the bill were negligently made by the board of directors, resulting in the insolvency of the bank and loss to the depositors and stockholders of the various sums set forth in the bill.

They alleged that the said bank was created and organized March 25, 1889, under and by virtue of the laws of the state, to carry on a general banking business, and soon thereafter began the banking business, and continued in said business until after January 8, 1914, when it suspended on account of insolvency, and was placed in the hands of receivers by order of the chancery court; that complaints were all depositors in said bank at the time of its suspension, and that some of them were stockholders; that the bank was created with an authorized capital of one thousand dollars; that the bank began business with fifty thousand dollars capital, which was afterwards increased in 1903 by the issue of fifteen thousand dollars and in 1911 by an issue of ten thousand dollars, but that two thousand nine hundred and fifty dollars of the last increase was never disposed of, and at the time of the suspension of the bank it had an outstanding capital stock of sixty-five thousand dollars.

Complainants aver:

That during all the years from January 1, 1903, to January, 8, 1914, when the said Merchants & Farmers Bank finally suspended, its officers and directors were as follows: First, during the years 1903-1904, B. T. Kimbrough, president; W. D. Porter, cashier; directors, B. T. Kimbrough, H. Whollenben, S. H. Plant, B. P. Gray, Winter Lewis, W. D. Porter, G. W. Buffaloe. During the year 1905, the directors were Kimbrough, Plant, Buffaloe, Gray, Porter, and Davidson; Kimbrough, president; Porter, cashier. During the year 1906 B. T. Kimbrough departed this life in May and the defendant Duke M. Kimbrough was elected a director in his stead; Porter acted as president. During the years 1907 and 1908 Plant, Buffaloe, Davidson, Porter, Lewis, Goodwin, and D. M. Kimbrough were directors; Porter, president; and J. F. Matthews, cashier. During the years 1909 to 1913, inclusive, and up to and including the 8th day of January, 1914, said Plant, Buffaloe, Davidson, Porter, Goodwin, Beanland, and D. M. Kimbrough were directors; W. D. Porter, president; J. F. Matthews, cashier.

That on the 8th day of January, 1914, a resolution was passed suspending the operation of the bank as a going concern, and that it liquidate its business, and that application be made to the chancery court for the appointment of a receiver, and a petition was presented, without notice, to the chancellor, and a receiver appointed, which is alleged to have been void.

That on the 9th day of January, 1914 R. L. Tomlinson, D. L. Ross, and S.W. Wardlaw filed a petition against the Merchants & Farmers Bank, indorsed, "Creditors' bill for appointment of receivers," and on the same day the bank answered, admitting insolvency and waiving process, and the defendants E. O. Davidson and J. F. Matthews were appointed receivers and took possession of all the books, records, assets, etc., except those debts, credits, and assets sued for by the complainants which had never been taken possession of or demanded or sued for by the said receivers. That at the time the receivers were appointed the bills receivable of the bank amounted to two hundred thirty-seven thousand nine hundred and seventy dollars and twenty-six cents, and over drafts twenty-three thousand three hundred and eighty-eight dollars and eighty-one cents, making an aggregate of two hundred sixty-one thousand three hundred fifty-nine dollars and seven cents, and cash in its vaults amounting to eight hundred ninety-eight dollars and seven cents. That the bank owed individual time deposits to the amount of forty-six thousand seven dollars and eighty-eight cents, and demand deposits to the amount of one hundred forty-eight thousand three hundred ninety-one dollars and nineteen cents, making an aggregate of one hundred ninety-four thousand, three hundred ninety-nine dollars and seven cents due the depositors.

That the receivers have collected one hundred thirty-five thousand dollars on bills receivable, and on overdrafts seventeen thousand dollars, making an aggregate of one hundred fifty-two thousand dollars. That the receivers have paid out of said collections, upon the order of the court, a sum equal to seventy per centum of the indebtedness of the bank to its depositors, but that no payment had been made upon the interest on either time or demand deposits.

Complainants show that they have never made a request of receivers to bring any suit for the demands, debts, liabilities, and claims herein sued upon, because one of the receivers was a director at the time of the suspension, and it would be idle and useless to make such request.

It was further alleged that the business of the bank was conducted upon sound business principles from the time it opened until 1903, when it entered upon an unsafe, negligent, and reckless business career, which was steadily pursued until it resulted in the insolvency of the bank. The bill then particularizes the loans, the various amounts, and to the various persons alleged to have been negligently and recklessly made.

The answer denied all of the allegations of negligence and recklessness, admitting the loans set out, but contended that they were made with due care and prudence.

Much testimony was taken and the chancellor found on the hearing against the complainants as to all loans whatever made prior...