Dunagin v. First Nat. Bank of Laurel

• Citation: 118 Miss. 809,80 So. 276
• Decision Date: 06 January 1919
• Docket Number: 20500
• Court: Mississippi Supreme Court
• Parties: DUNAGIN v. FIRST NATIONAL BANK OF LAUREL

80 So. 276

118 Miss. 809

DUNAGIN v. FIRST NATIONAL BANK OF LAUREL

No. 20500

Supreme Court of Mississippi

January 6, 1919

Division B

APPEAL from the circuit court of Jones county, HON. PAUL B. JOHNSON Judge.

Suit by the First National Bank of Laurel against Mrs. M. L. Dunagin. From an order transferring the case from the circuit court to the chancery court, defendant appeals.

The facts are fully stated in the opinion of the court.

Motion sustained, and appeal dismissed.

Robert L. Bullard, for appellant.

There will be no dispute as to the preliminary propositions, to wit: (1) By the Constitution the circuit court has exclusive jurisdiction of all matters not conferred on some other tribunal. (sec. 156). (2) The chancery court has exclusive jurisdiction of all matters of equity, etc. (Section 159). (3) Either court has authority to transfer a case brought in it of which it has no jurisdiction to the other court, it having jurisdiction. (Section 157-161). (4) Concurrent jurisdiction is conferred on both courts of suits on bonds of certain fiduciaries and officers, and of matters involving examination of complicated mutual accounts. With these exceptions, the jurisdiction of both courts is exclusive in its particular sphere.

These four propositions are established by the Constitution and are so fundamental and familiar that they will not be here quoted, except the last which is directly involved here.

No court can confer its authority to try a cause of which it has exclusive jurisdiction on any other court.

The circuit court has exclusive jurisdiction of all actions of assumpsit on promissory notes, this being one of the original common-law actions, that is, of all exceeding two hundred dollars in amount.

There is but one kind of suit which the circuit court has the power to transfer to the chancery court, where it has concurrent jurisdiction with that court. That is provided for in the section of the Constitution referred to in proposition (4) above, which is as follows: "The chancery court shall have jurisdiction, concurrent with the circuit court of suits involving inquiry into mutual accounts; but if the plaintiff brings his suit in the circuit court, that court may, on application of defendant, transfer the cause to the chancery court, if it appear that the accounts to be investigated are mutual and complicated."

Section 556 of the Code of 1906, being merely declaratory of this but incumbers the Code with useless space, as it does not and cannot, add to or take aught from it. Therefore, if the plaintiff hopes to find any authority of law for the act of the lower court, it must be sought in this section 161 of the Constitution.

Now, if before section 161 was made part of the Constitution, the circuit court has authority to transfer a cause of which both courts had concurrent jurisdiction, the last clause of that section was useless and is meaningless. The last clause of that section was added in order to confer on the circuit court a power it otherwise would not have had, and it therefore prescribes the only instance and means by which such cause could be transferred to the chancery court. Then to be thus transferrable, the suit must involve inquiry into complicated mutual accounts; and then the transfer can be made only on the application of the defendant.

Now, when the motion was made by the plaintiff to transfer this case no inquiry into anything was involved. There was no issue in the case even authorizing the empanelling of a jury. The plaintiff had made no reply to either of the defendant's special pleas, and the defendant was entitled to a judgment on the face of the record. It cannot be presumed here that it had any reply it could make, since it was its legal duty to reply and it did not, and we submit that the defendant is entitled in this court to the same judgment on the record that she was entitled to in the lower court.

But let us suppose that the plaintiff had joined issue on the pleas in the lower court, still the case would not fall within the requirement of section 161 of the Constitution. It would not involve accounts, but promissory notes. One of the pleas set up that the notes were given for a pretended balance the Dunagin-Whitaker Company owed the bank; that for years, the Dunagin-Whitaker Company had been a larger borrower of money from the bank but had paid to the bank all that it owed, therefore there was no consideration for the notes. If this had been denied, what would have been the issue? Simply this--did the Dunagin-Whitaker Company owe the bank at the time the notes were made? Mrs. Dunagin had no account against the bank and the bank had none against her. The issue would not have made necessary the examination of any account whatever, and no mutual accounts between the plaintiff and the defendant could have been examined, because none existed.

It would have been no business of the plaintiff how Mrs. Dunagin would have proved the issue, had it seen fit to reply to her plea. There are many ways in which she might have proved it. She could have proved it by the admission of the plaintiff, if such admission existed. She could have proven it by employees of the bank having knowledge of the facts; she could have proven it by the officers of the Dunagin-Whitaker Company, or it might be that she could prove it by the books of the Dunagin-Whitaker Company, or by the books of the bank, if such books were kept. It may have been easy; it may have been difficult; it may have been impossible to prove; but the burden to prove it being hers, if they had made the issue, it was none of the plaintiff's business how she expected to make the proof or whether she proved it at all.

The plaintiff has four promissory notes against the defendant. It wants to sue her on them and deny her the right the Constitution gives her to have the matter passed on by a jury. It files the suit in the circuit court, where, even it will admit, it must be filed, and then moves to transfer its own suit to the chancery court. If it could do this, it could have brought the suit in the chancery court to begin with. No one can bring his adversary to the court of his own choosing and then, when be becomes dissatisfied with his own choice, make his adversary go with him to some other tribunal. Under one condition only may his adversary do it,--that is when the suit he has brought involves complicated mutual accounts between them, and even then, if the defendant prefers, he may stay in the court of law to which the plaintiff invited him.

But there is no such issue in this case to try. There is no issue...