Craig v. Gaddis

• Decision Date: 19 November 1934
• Docket Number: 31373
• Citation: 157 So. 684,171 Miss. 379
• Court: Mississippi Supreme Court
• Parties: CRAIG v. GADDIS

157 So. 684

171 Miss. 379

CRAIG v. GADDIS

No. 31373

Supreme Court of Mississippi

November 19, 1934

Division B

Suggestion Of Error Overruled December 17, 1934.

APPEAL from the chancery court of Scott county HON. A. B. AMIS, SR. Chancellor.

Bill by Owen Craig against T. B. Gaddis. From a decree, complainant appeals. Affirmed.

Affirmed.

Eastland, Eastland & Ormond, and O. B. Triplett, Jr., all of Forest, for appellant.

The contest did deny the facts alleged in appellee's answer and appellant should have been allowed to present his proof in support thereof.

Merchants, etc., Bank v. Toomer Lbr. Co., 76 So. 565, 115 Miss. 647; Walker Bros. v. Daggett, 76 So. 659, 115 Miss. 657; Aetna Ins. Co. v. Robertson, 88 So. 890, 126 Miss. 387; Waite, Law of Sales, pp. 57, 163; Plattsburg Bank v. Brainerd, 28 F. 917; Johnson v. Tabor, 57 So. 365, 101 Miss. 78; Evans Terry Co. v. Liberty Mills, 89 So. 809, 127 Miss. 120; Barton v. Kane, 17 Wis. 38; Diversy v. Kellog, 44 Ill. 114; Pierson v. Crooks, 115 Miss. 539; Skinner v. Griffin, 80 Wash. 291, 141 P. 693.

The contest was filed timely.

The charges in the contest were not matters which had been decreed upon by the lower court and were not res adjudicata.

34 C. J., sec. 1312, p. 902; McCollum v. Dillard, 119 So. 180, 152 Miss. 260.

The fourth ground assigned in appellee's motion is foreign to the issues. The bank of Morton was not a necessary party. It was the debt due by appellee that appellant attached and it was all attachable.

Aetna Ins. Co. v. Robertson, 88 So. 890, 126 Miss. 387.

The fifth ground, charging that appellant made an immaterial and irrelevant averment in this contest, would not warrant the ruling of the lower court.

Jones v. Jones, 55 So. 361, 99 Miss. 600; U. S. F. & G. Co. v. Parsons, 112 So. 469, 147 Miss. 335.

Nichols & Huff, of Forest, for appellees.

The import of appellee's answer to the writ of garnishment is that within the time covered by his answer he owed the principal defendant nothing; and had no effects of the principal defendant in his hands or under his control.

In the transaction related in this record appellee never received anything which belonged to the shipper, the principal defendant, the receipt of which bound appellee to pay the shipper any sum. There was no "cover" unto appellee of anything for which the shipper might have right of "recovery."

Mills v. Scott, 99 U.S. 29, 25 L.Ed. 294; 7 R. C. L. 744, sec. 4.

If goods are delivered to a carrier by the owner or by a person whose act in conveying the title to them to a purchaser for value in good faith would bind the owner and an order bill is issued for them, they cannot thereafter, while in the possession of the carrier, be attached by garnishment or otherwise or be levied upon under an execution unless the bill be first surrendered to the carrier or its negotiation enjoined. The carrier shall in no such case be compelled to deliver the actual possession of the goods until the bill is surrendered to him or impounded by the court.

August 29, 1916, chapters 415, 23, 28 and 31, 39 Stat. 543.

The holding of the court below merely gave force to the statute.

Our court had upheld this salutory statute.

First National Bank of Ripley, Tenn. v. Tchula Commercial Co. et al., 95 So. 742, 132 Miss. 58; McDill v. Interstate National Bank, 101 So. 793.

Argued orally by O. B. Triplett, Jr., for appellant, and by J. Knox Huff, for appellee.

OPINION

Anderson, J.

This is a foreign attachment in chancery. Appellant filed his bill in the chancery court of Scott county against the Yukon Mill & Grain Company, an Oklahoma corporation doing business at Yukon, in that state, and appellee, a merchant in Scott county, Mississippi, by which he sought to establish a claim for damages against the mill company for an alleged tort, and to subject to the payment of his claim an indebtedness which he averred appellee was due the mill company for the purchase price of a carload of flour. The cause was tried on the pleadings and resulted in a decree in favor of appellee. From that decree appellant prosecutes this appeal.

In July, 1933, appellee ordered, in writing, a carload of flour from the Yukon Mill & Grain Company. The order was accepted and the flour shipped on the 7th of that month. The mill company asked for and received from the initial railroad a shipper's order notify bill of lading. It thereupon drew a draft on appellee for the purchase price of the flour with the bill of lading attached and placed the same in a Yukon bank for collection. In the process of collection, the draft and bill reached the bank of Morton, in this state. On July 11, 1933, the flour had reached Morton, but was still in possession of the delivering railroad. On that day the bill in this case was filed, and process was served on appellee. On the 17th of the same month the bank of Morton presented to appellee for payment the draft with the shipper's order bill attached. Appellee thereupon paid the draft, took up the bill, presented it to the railroad, and received the flour.

The question is whether or not, under those facts, there was an indebtedness existing between appellee and the mill company, in the meaning of section 173, Code of 1930, which is in this language: "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 nonresident, absent or absconding debtor. The court shall give a decree in personam against such nonresident, absent or absconding debtor if summons has been personally served upon him, or if he has entered an appearance."

Before disposing of the question, we think it well to refer to the procedure adopted in this case....