Edward Bros. v. Bilbo
| Decision Date | 23 March 1925 |
| Docket Number | 24777 |
| Citation | 103 So. 209,138 Miss. 484 |
| Court | Mississippi Supreme Court |
| Parties | EDWARD BROS. v. BILBO. [*] |
1. EXECUTION. Not invalid though not indorsed that it was issued for use of surety who had paid the judgment.
Execution held not invalid so as to authorize injunction restraining sale thereunder where issued in the name of complainant in the decree as in any case is proper under Code 1906, section 3735 (Hemingway's Code, section 2911), though the decree had been paid by the surety of the principal defendant, and the execution had not been indorsed, as in such case provided, that it was issued for the use of the surety.
2 HOMESTEAD. Allotment held not void so as to authorize injunction against execution sale because of manner of selecting freeholders.
Under Code 1906, section 2152 (Hemingway's Code, section 1827) allotment of homestead out of premises, on which execution has been levied, is not void, so as to authorize injunction against execution sale, because on defendant's failing to select one of the three freeholders to make the allotment, the sheriff then required to select the three, selected as one of them the one who, on the original notice from the sheriff had been chosen by plaintiff in execution; but if such freeholder be not qualified or be prejudiced or acts unfairly defendant's remedy is under section 2155 (section 1830) by affidavit of incorrect allotment and hearing on return of the process.
3. EXECUTION. In absence of showing of insolvency of execution plaintiff defendant cannot offset unliquidated claim by injunction.
A claim of the principal defendant against the surety on his notes which might have been, but was not, litigated in the suit against both of them on the notes, resulting in decree for complainant, cannot, in the absence of a showing that the surety is insolvent, be used in an injunction suit to offset the amount of the decree in execution on the surety paying the decree and having execution issue for its use against the principal defendant.
HON. T P. DALE, Chancellor.
APPEAL from chancery court of Pearl River county, HON. T. P. DALE Chancellor.
Injunction suit by T. D. Bilbo against Edwards, Bros. and others. From an adverse decree the named defendant appeals. Reversed and remanded.
Decree reversed, and cause remanded.
J. E. Stockstill and W. W. Stockstill, for appellants.
It will be observed by the court that the allotment was made by appraisers, two of whom were selected by the sheriff and one by the judgment creditor, in the presence of the defendant in execution, who declined to select an appraiser to represent him in the proceedings. It seems to be the contention of the appellee, who was defendant in execution, that the failure of the sheriff, upon the refusal of said defendant to make a selection, to call a third man to act in lieu of the one selected by the plaintiff in execution, was fatal to the validity of the proceedings. Appellant contends, however, that this was at most a mere irregularity, which was waived by the defendant by his failure to contest the allotment in the manner provided by sections 2154, 2155, Code of 1906.
Irregularities may be waived by acquiescence in the appraisement and allotment, or by failure to question the competency of appraisers before they enter on their duty. 21 Cyc. 629; Burton v. Spiers, 87 N.C. 87; 30 Cyc. 254; 29 C. J. 974; Harris v. Bassford (Cal.), 78 P. 1038.
Allotment proceedings are generally held to be judicial and cannot be attacked collaterally, unless absolutely void, but objections thereto must be addressed to the court receiving the report, in this case the court to which the execution was returnable. 29 C. J. 977; Hughs v. Pritchard (N. C.), 68 S.E. 906; Marshburn v. Lashlie (N. C.), 29 S.E. 371; Lallement v. Detert (Mo.), 9 S.W. 568; Ferguson v. Ferguson (Miss), 5 So. 514.
This court in Catlett v. Drummond, 74 So. 323, held that the "provision of section 2724, Code of 1906, fixing the venue of actions before a justice of the peace against a freeholder or householder in the district of such freeholder's or householder's residence, confers 'a mere personal privilege, which may be waived by failure to claim it in the proper manner and at the proper time;' that is by objecting at the trial to the cause being proceeded with, and proving the existence of the facts upon which the claim must rest." See also, Cross v. Levy, 57 Miss. 634; Gum Carbo Co. v. New Orleans German Gazett, 90 Miss. 177, 43 So. 82.
II. Furthermore, we submit that the bill of complaint, the real intent and purpose of which, as we construe it, is to extinguish the decree on which the execution issued by establishing a set-off against it, really makes no attack on the validity of the allotment proceedings. At least, in so far as the allotment is concerned, it does not contain sufficient allegations of facts to entitle the complainant to any relief. In other words, there are no facts alleged, which show the invalidity of the allotment, except what appears on the face of the proceedings. The only allegation with reference thereto in the body of the bill is the statement quoted above to the effect that a writ of venditioni exponas was issued commanding the sheriff to expose for sale the remainder of the land after there had been an invalid and illegal attempt to allot to complainant his exempt homestead.
The complainant contends, however, that the allotment proceedings are void on their face, and that since these proceedings are made an exhibit to the bill, a prima-facie case is made thereby. It seems to us, however, that before the complainant would be entitled to injunctive relief he would have to show that he will be injured or damaged, if the alleged void allotment is allowed to stand. In other words, he would at least have to show that the property advertised for sale is exempt; otherwise no harm will be done to him by a sale thereof.
The only suggestion of an exemption in the whole bill from beginning to end is in the allotment proceedings, and we shall submit that these affirmatively show that the property in question is not exempt. If there had been no allotment the complainant would have to show that the property is exempt before he would be entitled to any relief at all; and in a contest under sections 2154 and 2155, even if the validity of the appointment of the appraisers was not in question, he would have to show that as a result of the incorrect or unfair allotment, his exempt property would be sold, if the allotment should be allowed to stand. Certainly, this court will require no less certainty in a bill to enjoin and set aside the whole proceedings.
III. This brings us to the question of the alleged set-off. It will be observed that the claims now sought to be set off against the decree on which the execution was issued all arose out of an alleged transaction that occurred prior to the filing of the suit in which such decree was rendered, and that instead of setting same up in a cross bill against his codefendants in said suit, Bilbo elected to plead that the contract of sale between him and the co-defendant, appellant here, had been rescinded. We contend, as set forth in the first and second grounds of demurrer, that he thereby estopped himself from ever asserting the same demands in any action against the same defendant. In other words, Bilbo had the choice in the former suit of two inconsistent remedies or defenses, and the election and adoption of the one used at that time waived the other, and he cannot now pursue such other, even though he failed in the one adopted and used. 20 C. J., sec. 6, p. 5; Weeke v. Reeve (Fla.), 61 So. 749; 20 C. J., sec. 2, p. 8.
It is generally held that where the election of a remedy assumes the existence of a particular status or relation of the party to the subject-matter of the litigation, the party cannot afterwards pursue another remedy by which he assumes a different and inconsistent status or relation to the same subject-matter. McKinnon v. Johnson (Fla.), 52 So. 288; Weeks v. Reeve, supra; American Process Co. v. Fla. White Pressed Brick Co. (Fla.), 47 So. 942; 20 C. J., sec. 8, p. 9; Dyckman v. Sevatson, 39 Minn. 132, 39 N.W. 73; Herbert v. Spurlock, 26 Miss. 180; Rowell v. Smith, (Wis.), 3 Ann. Cas. 773.
The third ground of demurrer goes to the sufficiency of the whole bill, and the fourth challenges the right of the complainant to set off the demands set forth in the bill against a solemn, valid and binding judgment or decree of another court, even though it be held that there has been no waiver or estoppel. There are a few cases in this state holding that where a party seeking to execute a judgment is insolvent or a nonresident, or there is some other ground for equitable interference, the defendant in execution may have a claim held by him against such party at the time of the institution of the suit set off against the judgment rendered therein; but we have yet to find a case holding that a party can set off a claim held by him, liquidated or unliquidated, against a valid judgment in favor of a solvent resident of this state, where no grounds for equitable interference are shown, except that the judgment creditor is, also, indebted to the judgment debtor. Dibert v. Durham, 116 Miss. 469, 77 So. 311; Graves v. Hull, 27 Miss. 419.
Set-off, or recoupment, presupposes that each of the parties have a right of action, which may be asserted in independent suits, and one cannot deny liability, or the right of his adversary to recover, and at the same time plead in independent matter by way of set-off. Showalter v. Ford, 34 Miss. 417; Hoover Chemical Co. v. Humphrey, 107 Miss. 810, 66 So. 214.
W. A. Shipman, for appellee.
Under the circumstances, with the...
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