Freeman v. Ammons
| Decision Date | 06 April 1908 |
| Docket Number | 13,062 |
| Citation | 91 Miss. 672,46 So. 61 |
| Court | Mississippi Supreme Court |
| Parties | ANDREW J. FREEMANS v. WILSON E. AMMONS ET AL |
FROM the chancery court of Quitman county, HON. PERCY BELL Chancellor.
Freemans appellant, was complainant in the court below; Ammons and others, appellees, were defendants there. From a decree dissolving an injunction the complainant appealed to the supreme court.
The facts are stated in the opinion of the court.
Reversed.
Williams & Simpson and McWillie & Thompson, for appellant.
The court will observe that the amended bill made this a suit to confirm tax titles to lands and, therefore, it is a suit for the possession of real estate after adjudication of the validity of the complainant's title.
The motion being to dissolve the preliminary injunction, without any answer having been filed and without even a demurrer to the bill, there was not, nor could there have been, any issue of fact to be tried by the court below. In the absence of an answer, on a motion to dissolve the injunction for want of equity on the face of the bill, the averments of the bill are taken to be true, and it was error for the court below to have heard affidavits or to have questioned in any way the integrity of the averments of the bill.
Pending a suit in equity, or at law for that matter, an injunction may be granted and frequently is granted to preserve in statu quo the property involved, until a final settlement of the right of title. 22 Cyc., 821. The court below seems to have overlooked the fact that the injunction which it dissolved was one for the preservation of the property pending the suit and to have erroneously gotten off into questions pertaining to the injunction of trespasses to land, a wholly separate independent and distinct branch of the law from that involved in this case. We have in our statutes a recognition of the equity upon which we ask a reversal of the decree from which the appeal in this case is prosecuted. Code of 1906, § 810; Code of 1892, § 748; Code of 1880, § 1729. These Code sections provide that in all actions in which the right to real or personal property is in controversy the court or judge thereof may make an order for the protection of the property in controversy from waste and destruction and to prevent the removal of personal property beyond the jurisdiction of the court, upon satisfactory proof being made of the necessity for such order, etc.
Under Code of 1880 it was not even necessary for the party asking the injunction for the protection of the property to give bond. These sections of the several codes are not limited to the circuit court, although they are found in the chapter entitled "Circuit Courts." By Code of 1880, § 1585; Code of 1892, § 629; Code of 1906, § 687, it is provided that all things contained in the chapter on "Circuit Courts" not restricted by their nature or by express provision to circuit courts shall be the rule of decision and proceeding for' all courts whatsoever, and thus in each of said codes the section pertaining to the preservation of property pending suits is applicable to all courts.
We refer to the Code sections only because they contain a statutory recognition of an equitable principle which ought to have been respected in this case in the court below. That principle is this, and it is a principle of equity and right no litigant has a right to destroy or impair the value of the subject matter of controversy pending a suit for it or about it. Every litigant owes a duty to his adversary to preserve the subject matter of the litigation until it shall be determined who of the contestants is its owner. This principle is recognized throughout the books. In Johnson v. Hall (Ga.), 9 S.E. 783, the court, at the instance of each party, restrained the other party to a suit from destroying or injuring the subject matter in controversy. In Buskirk v. King, 72 F. the equity above mentioned is pointedly recognized and it is adjudged that the solvency or insolvency of the party enjoined is of no consequence. The richest man that ever lived has no right to destroy the subject matter of a suit which he has with his neighbor, although he is able to pay for it a thousand times over. His right in this regard is no greater than that of a pauper. Our statutory recognition of the rule gives no countenance to wealth on the one hand or poverty on the other.
It is said in the case of Erhardt v. Boaro, 113. U.S. 537, by Justice FIELD that: It will be noted that "the cutting down of timber" is treated by the Supreme Court of the United States as irremedial mischief.
And the same doctrine is announced in the case of St. Louis etc., Co., v. Montano, etc., Co., 58 F. 129. Still more important and to the point is Kyle v. Rhodes, 71 Miss. 487; s.c., 15 So. 40, a case wherein...
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Parsons v. Foster
...Mulligan, 167 Mass. 84; Kimberly v. Sells, 3 Johns Ch. 467, 471; 2 Am. Law Reg. (N. S.) 732; Moody v. Harper, 38 Miss. 599; Freeman v. Ammons et al., 91 Miss. 672; Erhardt v. Boaro, 113 U.S. 537, 5 S.Ct. 565, 28 Law. 1116. Franklin, Easterling & Canizaro and Robertson & Campbell, all of Jac......
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McKee v. Hogan
...to dissolve an injunction is "never properly allowable as a substitute for demurrer." Also in this section on the authority of Freemans v. Ammons, 91 Miss. 672, announces the clear and definite principle that in the absence of demurrer or plea or answer there is nothing before the court to ......
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Russell v. Town of Hickory
... ... are instances where irreparable waste will be enjoined while ... a suit to try the title is pending, as in Freemans v ... Ammons, 91 Miss. 672, but never was the possession of ... one claiming an adverse title interferred with by injunction ... Poindexter v. Henderson, S.W ... ...
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