Edgewater Park Co. v. Standard Bond, Etc., Co

• Citation: 138 So. 811,162 Miss. 684
• Decision Date: 18 January 1932
• Docket Number: 29671
• Court: United States State Supreme Court of Mississippi
• Parties: EDGEWATER PARK Co. et al. v. STANDARD BOND, ETC., CO

138 So. 811

162 Miss. 684

EDGEWATER PARK Co. et al. v. STANDARD BOND, ETC., CO

No. 29671

Supreme Court of Mississippi

January 18, 1932

Division B

Suggestion Of Error Overruled February 15, 1932.

APPEAL from chancery court of Harrison county HON. D. M. RUSSELL Chancellor.

Suit by the Standard Bond, etc., Company against the Edgewater Park Company, and others. From the decree, defendants appeal. Affirmed.

Affirmed.

Gardner & Backstrom, of Gulfport, for appellants.

The record herein shows two final personal monetary judgments rendered by the same court, on the same indebtedness, in the same cause of action, against the same defendant. Both of these judgments cannot stand. One must be erroneous.

If the erroneous judgment is not canceled by this court on appeal it necessarily follows that the appellant will be forced to file an independent suit in the chancery court of Harrison county, Mississippi, to set aside and vacate one judgment or the other.

Prior to the enactment of section 466 of the Code of 1930 the chancery court, in foreclosure proceedings, could render no relief further than a foreclosure of the lien of the mortgage.

The mortgagee was then forced to sue in a court of law for the deficit remaining after the mortgaged property had been exhausted.

Stark v. Mercer, 3 How. 377; Dollohite v. Orne, 2 S. & M. 590; Tanner v. Hicks, 4 S. & M. 294; Mosby v. Wall, 23 Miss. 81, 55 Am. Dec. 71; Cobb v. Duke, 36 Miss. 60, 72 Am. Dec. 157.

Upon the enactment of section 466 of the present Code of 1930 the rule above set forth was modified by statute to the extent that a court of chancery was given the power and authority on motion of the complainant, to enter a personal judgment against the mortgagor for the deficit remaining after the mortgaged property had been exhausted, but this jurisdiction extended to the deficit only and still gave the court of chancery no jurisdiction to render a personal judgment against the mortgagor for the full amount of the mortgage indebtedness until after the mortgaged property had been exhausted. The court could not, as it did in the case at bar, enter a personal monetary judgment against the mortgage on the trial of the foreclosure issue.

The jurisdiction of the chancery court to render a personal monetary judgment against the mortgagor remained a question over which courts of chancery exercised jurisdiction as courts of special and limited jurisdiction until the Constitution of 1890 was adopted, and still remains a matter over which they exercise jurisdiction as courts of special and limited jurisdiction unless by that constitution they were given general jurisdiction over judgments in personam in foreclosure proceedings. We submit that the constitution did not give courts of chancery general jurisdiction over judgments in personam on indebtedness secured by mortgages and other liens.

If the lower court committed no error in the case at bar then section 466, Code of 1930, has no place in our statute laws and should be stricken down.

The case at bar is ruled by Continental Gin Company v. Mathers, 132 Miss. 821, 96 So. 744. The case at bar must be reversed or the Continental Gin Company case must needs be overruled.

On authority of section 466 of the Code of 1930 and the Continental Gin Company case, we submit that the lower court was in error when it rendered a final monetary personal judgment against the appellant in its decree of foreclosure dated March 21, 1931, and this case should now be reversed, and that personal judgment set aside, vacated and annulled.

Buntin & McIntosh, of Gulfport, for appellee.

Appellee in drawing its decree, that is the first decree signed by the chancellor in this matter, followed the exact form found in Griffith Chancery Practice as Form No. 28 on page 885, which is the form of decree that has been used in taking judgments in foreclosure matters more extensively in this state than any other form since this text was published, because Griffiths Chancery Practice is recognized as the best guide in Chancery Practice in the state of Mississippi.

The chancery court has authority to enter a personal monetary judgment on notes where jurisdiction of the court has been conferred by an equity issue presented along with the suit on the note.

It seems that our courts formerly held that courts of equity had no power or jurisdiction to settle issues between parties that were purely legal issues, although said issues arose in a cause wherein said court had jurisdiction because of certain equitable principles, holding that the limit of the equity court's jurisdiction was to settle the equitable principles involved therein, leaving litigants to their recourse at law for the legal questions. This rule and the reasons therefor is fully set forth in the following cases.

Stark v. Mercer, 3 How. 377; Dollohite v. Orne, 2 S. & M. 590; Tanner v. Hicks, 4 S. & M. 294; Mosby v. Wall, 23 Miss. 81, 55 Am. Dec. 71; Cobb v. Duke, 36 Miss. 60, 72 Am. Dec. 157.

Subsequent to said cases, however, section 1935 of the Code of 1880 was enacted, this being section 466 of our 1930 Code, and said section enabled complainants in chancery court following this section to foreclose upon their lien and after application of the proceeds of sale to the amount found due, to take a personal monetary judgment over for the balance. Following the enactment of this code section the courts held that personal judgment could be obtained in chancery provided this section was followed.

The Constitution of 1890 broadened jurisdiction of the chancery court.

Sections 160 and 161, Constitution of 1890.

Since the adoption of our Constitution of 1890 our courts have consistently held that where courts of equity have taken jurisdiction of a matter because of equitable principles involved, they have the general and inherent power to decide and grant relief on all issues presented to them, even though said issues be entirely legal ones, going so far as to hold that even though the equitable principles for which the court had taken jurisdiction have failed, the court still retains jurisdiction and settles all issues and grants relief on all matters involved, even though they be purely legal.

Griffith Mississippi Chancery Practice, page 31, section 28; Atkinson v. Felder, 78 Miss. 83, 29 So. 767; Baker v. Nichols, 111 Miss. 680, 72, So. 1; R. R. Co. v. McConnell, 127 Miss. 592, 90 So. 321; Vicksburg Co. v. Citizens Co., 79 Miss. 354, 30 So. 725; Robertson v. Krauss, 129 Miss. 310, 92 So. 74; Lumber Yard v. R. R. Co., 96 Miss. 116, 50 So. 445; Hale v. Bozeman, 60 Miss. 966.

To hold that a court of equity could not accept and take jurisdiction of and grant judgment in a suit on promissory notes wherein the bill, in addition to judgment on said notes, prayed for a special lien on certain property because of a mortgage covering said property securing said notes would certainly be holding that equity could not grant full relief on matters where it had properly taken jurisdiction.

It certainly cannot then be seriously argued that complete relief would have been granted complainants without granting them a personal monetary judgment under the first decree, especially in the face of such strenuous objection to such a personal judgment. If a judgment would not catch other properties, or would not embarrass defendant or in some way accrue to the benefit of complainant, then defendant could have had no reason for objecting to same, and if, on the other hand, it was going to catch other property or was going to embarrass defendant and accrue to the benefit of complainant, then complainant had a right to same and thus prevent the working upon them of fraud between the time of the first decree and the date set for confirmation of sale.

Griffith's Mississippi Chancery Practice, page 692, section 614.

The two decrees as drawn certainly do not constitute two final personal monetary judgments as to the defendant in the same cause of action, but on the other hand the second decree clearly shows on its face that the first decree or judgment whichever it be, is brought forward and credited with net proceeds of the sale, and clearly...