Deltains & Realty Co. v. Fourth Nat. Bank Of Montgomery.
| Citation | 89 So. 817,127 Miss. 152 |
| Decision Date | 01 January 1920 |
| Docket Number | 21656 |
| Parties | Deltains & Realty Co. Et Al v. Fourth Nat. Bank Of Montgomery. |
| Court | United States State Supreme Court of Mississippi |
INTERPLEADER. Complainant attaching note held not entitled to be summoned in law action by note holder against maker.
Where the maker of a note payable to a nonresident is joined as a co-defendant with the nonresident in an attachment in chancery wherein the complainant seeks to subject the amount due by the maker of the note to the nonresident payee therein to the payment of a debt due the complainant by the nonresident, and the maker of the note is afterwards, and while the attachment in chancery is pending, sued in the circuit court on the note by the holder thereof, the complainant in the chancery suit has no such claim to the subject of the action at law as will authorize his being summoned at the instance of the defendant therein under the provisions of section 772, Code of 1906, Hemingway's Code, section 555, to contest with the plaintiff his right to the relief sought in the chancery suit.
Two suits by the Fourth National Bank of Montgomery against the Delta Insurance & Realty Company and Shelby S. Steele on notes. The actions were consolidated and Gwin & Mounger were made defendants. Judgment entered against the defendants without stay of execution, and the defendants appeal. Reversed, and judgment entered.
B. L Gwin, B. L. Mayes and W. G. Green, for appellants.
In the first part of its brief, appellee calls attention to the fact that there was never any plea in abatement filed in said cause by appellants Delta Insurance and Realty Agency and Shelby S. Steele, who are the garnishees in the suit pending in the chancery court of Leflore county, Mississippi, and further on, asks the question: "Why did not the appellants, The Delta Insurance and Realty Agency and Shelby S. Steele, plead in abatement in this case, the pending suit in the chancery court?"
Counsel for appellee evidently had not read the case of Y. & M V. R. R. Co. v. Fulton, 71 Miss. 385 cited and relied on by appellants, The Delta Insurance and Realty Agency, and Shelby S. Steele for a correction and modification of the judgment rendered against them in the circuit court, so as to provide for the stay of execution, for the court therein specifically held that the garnishment proceedings therein against defendant, the Y. & M. V. R. R. Co., could not be pleaded in abatement or bar of the suit of the creditor by defendant, but that the creditor should be allowed to proceed to judgment and the court in entering the judgment, should so frame the same as to protect the garnishee by providing for a stay of execution to an amount equal to that for which the defendant-garnishee was sought to be charged in the pending suit.
A plea in abatement by appellants The Delta Insurance and Realty Agency and Shelby S. Steele therefore, was not only necessary, but would have been improper and would very properly have been overruled by the circuit court, had it been interposed by said appellants.
Upon the failure of the circuit court to incorporate the saving clause in its judgment against them so as to provide for the stay of execution, appellants, The Delta Insurance and Realty Agency and Shelby S. Steele proceeded then in the only manner allowed them by the decision of the court in the case of Y. & M. V. R. R. v. Fulton, supra, in asking the court to modify and correct the judgment rendered against them so as to provide for the stay of execution.
Appellee bodily asserts, however, that the case of Y. & M. V. R. R. Co. v. Fulton, supra, "is not in point" for the reason that in said case, defendant was sued in Mississippi while the garnishment proceedings against it were pending in a court of Tennessee, over the same subject-matter and between the same parties. In the instant case, the suit is over the same subject-matter and between the same parties, the only phase of which wherein it can be differentiated from the facts of the Fulton case, supra, is that, instead of being a case where the garnishment proceedings against defendant were pending in a Tennessee court, upon which execution on a judgment rendered by a Mississippi court, was stayed, as in the Fulton case, supra, this is a case of which the garnishment proceedings are pending in a court of Mississippi, of concurrent statutory jurisdiction with another Mississippi court, the court in which the judgment was rendered.
On the contrary, therefore, the case cited is even more strongly in point, for if a Mississippi court erred in failing to incorporate in its judgment, a stay of execution until the defendant-garnishee should be discharged from liability under garnishment proceedings pending against him in a court of the state of Tennessee, then surely the circuit court of Leflore county erred in failing to incorporate in its judgment against appellants, The Delta Insurance and Realty Agency and Shelby S. Steele, a stay of execution until appellants should discharge from liability under the garnishment proceedings pending against them in the chancery court of Leflore county, Mississippi, which is not only a court of the same state, but a concurrent jurisdiction with said circuit court.
The numerous cases cited by appellee in support of its contention that it was the bona-fide holder, in due course, before maturity, for the three notes sued on herein, are not in point for the reason that they are mostly cases in which the notes are bearer notes and only the rights of the respective and successive holders are involved, and we respectfully submit that any presumption that night arise in favor of one party to a note as against another party to the note, as to the time of endorsement, where no such date appears in the endorsement, would not apply as against a third party, in whose favor a lien exists against the notes and the proceeds thereof by virtue of a writ of attachment and garnishment issued out of a Mississippi court of competent jurisdiction, and it, therefore, was incumbent upon appellee to prove that it acquired title to the notes in question (if it had any title at all), before maturity, which it totally failed to do, and therefore had no right to maintain this suit, particularly as against appellants Gwin and Mounger.
Section 2630, Hemingway's Code, provides that:
The three notes in controversy here were neither complete nor regular upon their faces, nor do the notes or the proof offered by appellee at the trial of the case, show that it became the holder before they were overdue, and we respectfully submit that appellee was without authority or right to maintain this suit on said notes against appellants Gwin & Mounge in whose favor there exists a lien against said notes and the proceeds thereof, and the judgment of the circuit court of Leflore county, in directing a verdict for appellee against appellants Gwin and Mounger, was error. Gardner, McBee & Gardner, for appellee.
By referring to the pleadings in this case, it will be seen that after suit was brought by appellee against appellants, that they filed their interpleader under section 2351 of the Code of 1906, sec. 1946, of Hemingway's Code in which appellants admit liability for the notes sued on, and in their plea set up the facts, that: "Before the notes herein sued on were placed with plaintiff's attorneys for collection, the said Gwin & Mounger, etc., filed their bill of complaint in the chancery court of Leflore county, against the said Alabama Fidelity Mortgage and Bond Co., etc alleging the indebtedness of the company to complainant in the sum of one thousand...
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