Davis v. Natchez Hotel Co.

• Decision Date: 09 June 1930
• Docket Number: 28032
• Citation: 158 Miss. 43,128 So. 871
• Court: Mississippi Supreme Court
• Parties: DAVIS et al. v. NATCHEZ HOTEL CO

128 So. 871

158 Miss. 43

DAVIS et al. v. NATCHEZ HOTEL CO

No. 28032

Supreme Court of Mississippi

June 9, 1930

Division A

Suggestion of Error Overruled June 26, 1930.

APPEAL from chancery court of Adams county HON. R. W. CUTRER Chancellor.

Suit by the Natchez Hotel Company against Mrs. Lisa S. Davis and others to restrain the prosecution of a cause of action pending in the courts of Louisiana. A temporary injunction was granted, and from a decree overruling a motion to dissolve the injunction, defendants appeal. Affirmed in part and reversed in part, and remanded.

Decree affirmed in part, and reversed in part, and remanded.

Jno. D. Miller, of New Orleans, La., and Engle & Laub, of Natchez, for appellants.

A motion to dissolve an injunction should be sustained when the sworn answer is responsive and denies any equity or alleged equity of the bill, and the complainants fail to introduce any proof to controvert the answer or to sustain any allegation of his bill.

Davis v. Hart, 66 Miss. 642, 6 So. 318; Griffith's Chancery, sec. 453 and cases cited.

The court erred in permitting the appellee to amend the alleged bond for the injunction.

Tillman v. Heard, 95 Miss. 238, 48 So. 963.

Where, under proceedings in rem, the res has been seized, and is held under the process of one court, no other court can interfere, or take the thing, or dispose of it.

Lamorere v. Cox, 32 La. Ann. 246, 249; Loeb v. Fisher, 137 La. 132, 68 So. 383; Murphy v. Hofman Co., 211 U.S. 562, 20 S.Ct. 154, 53 L.Ed. 327.

Our courts should not be made the handmaids to vile attempts to defeat the lawful administration and legal distribution of property in a sister state. We should not interfere more than possible with the property of citizens of other states, or the jurisdiction of their courts.

Wingate v. Wheat, 6 La. Ann. 238, 241; Paradise v. Farmers Bank, 5 La. Ann. 710, 711.

Courts have no power to enjoin a creditor from suing his debtor merely because the suit is brought in a state other than the one where it was contracted and other than the one of the corporation domicile when it has an agent to represent it in the first state which is the domicile of the debtor.

Commercial Soap Works v. Lambert, 49 La. Ann. 549, 21 So. 639; Rising Sun v. Rising Sun, 28 La. Ann. 548; Borne v. Porter, 4 Rob. 57; Nolan v. Babin, 12 Rob. 531; Broot v. Eager, 28 La. Ann. 937; Hardin v. Mo. Pac. R. R., 105 So. 2; Folkes v. Central of Georgia R. R., 80 So. 458.

It is an established rule that ordinarily a court of equity in the exercise of its judicial discretion will not restrain the prosecution of a suit in another state unless a great equity is made out, requiring the interposition of the court to prevent a manifest wrong and injustice.

Amberson Hydraulic Construction Co. v. Northern Contracting Co., 140 Ga. 1, 78 S.E. 340, 47 L. R. A. (N. S.) 684; Carson v. Dunham, 149 Mass. 52, 20 N.E. 312, 3 L. R. A. 203; Guggenheim v. Wahl, 203 N.Y. 390, 96 N.E. 726; Ann. Cas. 1913B, 201.

Injunctions by the courts of the state will generally be confined to restraining the commencement of suits in another state and will not often be extended to cases in which suit has already been commenced.

10 Ann. Cases 28; American Express Co. v. Fox, Am. & Eng. Ann. Cases, 1918B, page 1148, 135 Tenn. 489, 187 S.W. 1117; Vehorn v. Foster (Mass.), 4 Allen 545; Cole v. Cunningham, 133 U.S. 107, 35 U.S. (L. Ed.) 538; Bigelaw v. Old Dominion Copper Min., etc., Co., 74 N.J.Eq. 457, 71 A. 153; Jones v. Hughes, 156 Iowa 684, 137 N.W. 1023, 42 L. R. A. (N. S.) 502.

Engle & Laub, of Natchez, for appellants.

The admission of evidence will not be reviewed where no objection was made below to its admission.

Kaufman & Sons v. Foster, 42 So. 667, 89 Miss. 388; Fox v. Baggett, 58 So. 481, 101 Miss. 519; Pearson v. Kendrick, 23 So. 290, 75 Miss. 416; Alabama & V. Ry. Co. v. Sparks, 16 So. 263, 71 Miss. 757; Mississippi Cent. R. R. Co. v. Hardy, 41 So. 505, 88 Miss. 732; Wagner v. Ellis, 37 So. 959, 85 Miss. 422; Mallery v. Walton, 81 So. 113, 119 Miss. 396.

Objections to admission of evidence must be specific and no objection to sworn answer as evidence was made.

Bessler Movable Stairway Co. v. Bank of Leaksville, 106 So. 445, 140 Miss. 537.

The bill shows conclusively that the appellant, A. V. Davis, has filed no suit against the appellee, Natchez Hotel Company, and there is no allegation that your appellant intended to file any suit. Upon these facts court should have dissolved the injunction as against A. V. Davis.

Kennedy & Geisenberger, of Natchez, for appellee.

Where a complainant in his bill waives an answer under oath, the answer, whether sworn to or not, is not evidence for the defendant, and the sworn bill and answer in such case simply present issues of fact for the determination of the court. Neither party could rely on his pleading as evidence. On the hearing of a motion to dissolve, the burden of proof is on the movant to establish the grounds for dissolution.

Ricketts v. Ricketts, 119 So. 164.

A bond may be amended to show that parties signing did so as sureties.

Section 1022, Code 1906, section 778, Hemingway's Code 1927; Union Indemnity Co. v. Acme Metal Works, 117 So. 251; U. S. F. & G. Co. v. Adams, 105 Miss. 675.

While there is some authority to the contrary, when the suit was previously commenced in the court of a sister state the better rule is that, whether suit was or was not first commenced in the court of another state, a court of chancery of the sister state, upon a proper cause being shown, has authority to restrain persons within its jurisdiction from proceedings in suits in the courts of other states, and it is altogether immaterial that the property in controversy, whether real or personal is beyond the territorial jurisdiction of the court. The courts do not in such cases, pretend to direct or control the foreign court but the decree acts solely upon the party and is not an interference with the proceedings of the courts of a sister state.

32 C. J., pages 115 and 117; Hadden v. Yale, 12 So. 633; Cole v. Cunningham, 133 U.S. 107, 10 S.Ct. 269.

The rule is well established that a citizen of one state may be enjoined from prosecuting an action against another citizen of the same state in a foreign jurisdiction for the purpose of evading the law of his own state and this rule applies, although the suit enjoined has been commenced in another state before the injunction issues.

Fisher v. Pacific Mut. Life Ins. Co., 112 Miss. 30, 72 So. 846; Weaver v. Alabama-Great Southern Ry. Co., 76 So. 364.

OPINION

Cook, J.

This is an appeal from a decree of the chancery court of Adams county overruling a motion to dissolve an injunction previously granted restraining the prosecution of a certain cause of action pending in the courts of the state of Louisiana.

The bill of complaint upon which the temporary injunction was issued was filed by the Natchez Hotel Company, a Mississippi corporation domiciled at and doing business in the city of Natchez, Mississippi, against Mrs. Lisa S. Davis and her husband, A. V. Davis, resident citizens of Adams county, Mississippi, Britton & Koontz National Bank, domiciled at and doing business in Natchez, Mississippi, and a large number of fire insurance companies alleged to be doing business in the county of Adams in the state of Mississippi, and to be subject to process therein. The bill of complaint alleged that the appellee, Natchez Hotel Company, was engaged in the hotel business in the city of Natchez, and is the owner of a hotel building in said city, on which there is an indebtedness in the form of a bond issue secured by a mortgage thereon; that in accordance with the provisions of said mortgage the appellee obtained fire insurance in the several defendant insurance companies, each of said policies containing a mortgage clause making the loss, if any, payable to the Britton & Koontz National Bank, as trustee, for the benefit of the bondholders; that the appellant, A. V. Davis, was one of the original incorporators of the Natchez Hotel Company, and was secretary and treasurer of the said corporation, and as such attested the mortgage securing said bonds, and was also a stockholder, director, or partner in an insurance agency at Natchez, and caused the fire insurance contracts to be placed with said defendant insurance companies through the said insurance agency.

The bill further averred that in 1927, while the appellant, A. V. Davis, was a stockholder therein, the appellee was largely indebted to various parties, and was unable to pay such indebtedness; that without any action on the part of appellee, its stockholders, including A. V. Davis, agreed among themselves to each put up a certain percentage of the par value of their stock for the purpose of protecting the stock and paying off the outstanding indebtedness owing by the appellee, and thereby giving some value to the stock; that thereupon the appellant, A. V. Davis, upon a pledge of sixty shares of stock of the appellee company, borrowed three thousand eight hundred eighty-five dollars, his pro rata share of the indebtedness of the appellee company, and paid said sum on said indebtedness.

It was further averred that thereafter the Natchez Hotel Company property was damaged by fire, and the loss was adjusted by each of the fire insurance companies acknowledging liability for a stated sum, which amounts were payable to the Britton &amp Koontz National Bank, trustee, under the provisions of the mortgage and the policies of insurance; that the appellee company, being without funds to immediately repair the damage to its property, borrowed from the Britton & Koontz National Bank the money necessary to make such repairs, upon an agreement...