Evans v. Money
| Decision Date | 24 February 1913 |
| Citation | 61 So. 309,104 Miss. 264 |
| Court | Mississippi Supreme Court |
| Parties | R. L. EVANS v. W. M. MONEY |
March 1913
APPEAL from the chancery court of Jones county, HON. SAM WHITMAN JR., Chancellor.
Suit by R. L. Evans against W. M. Money. From a judgment for defendant, plaintiff appeals.
In 1905 W. M. Money obtained two judgments against one Barrett in the court of a justice of the peace, and about two years later caused a writ of garnishment to be issued, naming R. L. Evans as garnishee. Judgment by default was taken on this writ of garnishment, no answer issued, Evans filed a bill for an injunction to restrain the constable from levying the execution. His bill alleged that he did appear in response to the writ of garnishment, but could not locate the justice of the peace, and that he was directed to, the wrong place. It was shown, however, that the justice of the peace held his court in his regular court room on the day named in the writ at which time judgment by default was taken against Evans. On the hearing the chancellor sustained a motion to dissolve the injunction and dismissed the bill. Afterwards, when the judgment was sought to be enforced, Evans filed another bill in which he alleged that there was a custom, among lawyers at the Laurel bar, to notify each other if any steps were to be taken in a cause in which they were interested, and that the attorneys of Evans were not notified when the motion to dissolve the injunction came on for hearing and was sustained. On the hearing of this second suit for injunction the chancellor sustained a motion to dissolve and entered a decree dissolving the injunction and dismissing the bill, and from this decree Evans appeals.
Affirmed.
Stone Deavours, for appellant.
The motion to dissolve the injunction on the face of the bill admits that the judgment on which the writ of garnishment was issued is void, that it was rendered by default without service of process on the defendant. It further admits that when appellant secured an injunction against it appellee practiced a grievous fraud against him by lulling him into inaction, by a solemn agreement that nothing more should be done in the cause until they had time to find the justice docket and papers, and then in violation of this, without any sort of notice to appellant, did the very thing he had solemnly promised not to do. It may be that he might, at any time he chose to do so, have withdrawn his agreement, and proceeded with the cause, but it would be a seared conscience indeed that would approve Money's act in lulling Evans into inaction by his, agreement that neither should take any further action in the case until the docket and papers in the justice of the peace case should be found, and then to bushwhack him under cover of this agreement as he did. Bear in mind here that he admits that all this is true. The excuse that he advances for doing it, and the only excuse he says he has, is that, as alleged in his demurrer, his agreement was not in writing. A court of equity will not tolerate such bad faith as this in any case, much less when it is to abuse its own power.
The case of G. & S. I. Ry. Co. v. Flowers et al., 85 Miss. 633, 38 So. 37, originated in the justice court. While it was pending in the justice of the peace court, and on the return day the attorney for the plaintiff told the railroad's attorney that he would not be at the place of trial, and that he had written to his client and to the justice of the peace that he could not be there that day and to continue the case. There was no further agreement than this that the case should be continued, and the railroad's attorney went home. The plaintiff himself appeared in court and took a judgment by default. Of the question thus presented this court said:
etc.
Neither is there any dispute as to this between counsel, or litigants here. The bill alleges the agreement, the motion and demurrer admits its truth, the appellee only saying in his demurrer, in effect, that he ought not to have stood by his agreement because, forsooth, it was not in writing. Whether fraud was here intended or not, it was and is a fraud in law. Fraud vitiates all judicial acts and renders them utterly void. The fraud and deception practiced in procuring the dissolution of the former injunction vitiates it; that suit for that reason was and is still a pending cause, and the prayer of this bill to reinstate that injunction and administer the relief prayed for in the other bill ought to be granted and the injunction maintained until that can be done. See also, Fletcher v. Rapp, S. & M. Ch. 374; Herring v. Winans, S. & M. Ch. 466; Humphries v. Bartee, 10 S. & M. 282.
At all events it was error for the court below on a mere motion in vacation to dissolve the injunction to assume to sustain a demurrer and dismiss the bill. Sec. 621 of the Code of 1906 is as follows: "When, on motion, an injunction shall be wholly dissolved the bill of complaint shall be dismissed of course with costs, unless sufficient cause be shown against its dismission at he next succeeding term of court."
The above statute has been several times construed by this court, notably in the following cases:
Drane v. Winter et al., 41 Miss. 517, where in this court says "Injunctions may be dissolved on the face of the bill, without answer, or upon answer denying the equity of the bill; but in either of these cases the...
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