Gordon v. Warfield

• Citation: 21 So. 151,74 Miss. 553
• Court: United States State Supreme Court of Mississippi
• Decision Date: 18 January 1897
• Parties: SUSAN RICHARDSON GORDON v. CARNEAL WARFIELD

21 So. 151

74 Miss. 553

SUSAN RICHARDSON GORDON v. CARNEAL WARFIELD

Supreme Court of Mississippi

January 18, 1897

October 1896

FROM the chancery court of Washington county HON. A. H. LONGINO Chancellor.

The facts are sufficiently stated in the opinion.

Remanded.

Yerger & Percy, for appellant.

The decree appealed from in this case is a startling illustration of the progressive and innovating spirit of the age, the tendency of which, when carried into our courts, is to disregard established rules of jurisprudence, and to lightly set at naught limitations as to jurisdiction, based on wisdom vindicated by the centuries, and crystallized into precedents as innumerable as the judicial tribunals of civilization. There are four principles which seem to effectually bar recovery by appellee in this proceeding: (1) Where proceedings in rem have been adopted in the chancery court they have been largely, if not entirely, due to statutes; (2) the mere fact of the nonresidence of the debtor, and inability to obtain judgment against him, does not create jurisdiction in a case where it does not otherwise exist; (3) when equity attempts to proceed in rem, it does so by a precedent seizure of the property, or in some method equivalent to a seizure; (4) equity has never exercised its remedies for the enforcement of a claim for unliquidated damages arising ex delicto.

The decision in the case of Dollman v. Moore, 70 Miss 267, does not render untenable any one of our four propositions. While that case overturned what had been regarded as established principles of jurisdiction, yet the broadest construction of that case falls far short of warranting appellee's contention. To apply that case to the one at bar, is to extend it infinitely beyond its reason and proper limits. Zachery v. Bowers, 1 Smed. & M., 584, S.C. 3 Smed. & M., 641; Comstock v. Rayford, 1 Smed. & M., 423; Gasget v. Scott, 9 Yer. (Tenn.), 244; Pomeroy's Eq. Jur., sec. 1317; Beach's Eq. Jur., sec. 6, et seq.; Arndt v. Griggs, 134 U.S. 316; Brennan v. Burke, 6 Rich., 200: Farrar v. Haselden, 9 Rich., 331; Banks v. Paine, 13 R. I., 592; Steene v. Hoagland, 39 Ill. 264; Cudabac v. Strong, 67 Miss. 705; Hart v. Samson, 110 U.S. 151; Story's Eq. Jur., 794 and 794a.

The decree appealed from is erroneous, in that notice was not given by the master to appellant of the taking of testimony as to the damages claimed. Nonresidence of appellant did not exempt the master from giving the notice of which the nature of the case admitted. Certainly he should have filed the notice in the papers. § 1752, code 1892. Appellee probably went on the idea that not being governed by statute he enjoyed peculiar rights, and should not be hampered by rules of practice.

Frank E. Larkin, for appellee.

The case made by appellee and confessed by appellant, shows an injury done the former by the latter, for which no remedy is given, unless a court of equity will give life and force to the maxim, "Wherever a legal right has been infringed, a remedy will be given." Equity jurisprudence is founded on this maxim, and, wherever a right recognized by the municipal law has been infringed, the extent of jurisdiction of a court of equity is determined by this maxim, the only force of which is its supposed universal application. Pomeroy's Eq. Jur., vol. 1, sec. 423 et seq. This maxim can have no force unless it be applied to confer power on courts of equity, in cases where rights recognized by the municipal law have been infringed, to grant appropriate relief.

Appellee contends that never yet has a court of equity refused to grant relief where a municipal right has been infringed. In this case, a legal right of complainant has been infringed; an injury has been done him by defendant, for which a circuit court, if it had jurisdiction of his person, would undoubtedly give compensatory damages. But defendant is beyond the reach of process of that court. The statutory methods provided for a surer collection of debts due by nonresident debtors and the recovery of damages for breaches of contracts against nonresidents by attachments at law and in chancery, are denied complainant, for the reason that the damages suffered by him are unliquidated, and the statutes fail to provide a remedy in this class of cases. But, independent of statutory modes for obtaining relief, a court of equity, by force of the maxim alluded to, has inherent power and jurisdiction to afford the relief prayed for by complainant.

In Zecharie v. Bowers, 1 Smed. & M., 589; s.c. 3 Smed. & M., 641, complainants showed that defendant was a nonresident of the state; that he was indebted to complainants; that he owned lands in this state, and prayed to have the lands sold to discharge the debt. A decree pro confesso was taken, and, the cause being set down for final hearing, the bill was dismissed. On appeal, the decree of the lower court was affirmed, and the ground for affirmance was the failure of the complainant to proceed in the manner pointed out by the statute for an attachment in chancery. Many years afterwards, by the case of Dollman v. Moore, 70 Miss. 267, the case of Zecharie v. Bowers was overruled, and this court says the decree should have been for the complainants. The reason given for the decision is the inherent power of a court of equity to grant relief where rights recognized by the municipal law have been infringed and the law provides no remedy. The cause was brought to collect a debt, and the justice who delivered the opinion of the court, in vindication of the boast, "Ubi jus, ibi remedium, " says: "It would be a surprising condition of affairs if a nonresident debtor, owning property in this state, to creditors resident here, could never have been compelled to pay his debts by the courts of this state, exercising their common law jurisdiction. The authorities are numerous that, under such circumstance, resort may be had to equity in the first instance."

Mayes & Harris, on the same side.

The case of Dollman v. Moore, 70 Miss. 267, settles the rule of practice in this state, that independent of the statutory attachment in chancery against nonresidents, there is a jurisdiction in courts of equity to afford relief to one who is otherwise without remedy at law, and that case would be conclusive of the one at bar, if it were not for the fact that in the case at bar the demand of the complainant is for unliquidated damages, and, therefore, the question is presented whether the principle of Dollman v. Moore will be extended to a chancery attachment where the demand asserted is for unliquidated damages. Our contention is that the same principle includes this case.

We refer the court on this question to the various cases cited in Dollman v. Moore on page 275. None of them were cases where recovery was based on unliquidated damages, but the reasoning of the cases all tends to show that their principle would be applicable to a case of that sort if the appeal to chancery is the only recourse of the complainant. The absence of any other method of relief is that which confers the equity jurisdiction. In this state an attachment at law, which is purely statutory, cannot be maintained where the demand is based on unliquidated damages, but the equity jurisdiction, lying outside of statute and resting upon the general powers of the equity courts to give relief in case of just demands otherwise without value, is the power appealed to in this instance, and the cases cited, as above stated, go to show the existence of that power.

OPINION

STOCKDALE, J.

In November, 1895, Carneal Warfield exhibited his bill of complaint in the chancery court of Washington county, alleging ownership for many years, in himself, of Highland plantation, near Greenville, in said county, having inherited the same from his father. That on said plantation are two lakes, Rose lake and Cypress lake; that north of and adjoining Highland plantation is Lagrange plantation, owned by Mrs. Susan Richardson Gordon, the southern line of which is on the north side or boundary of Cypress lake.

That the rain water which falls on these plantations, and seepage water from the Mississippi river, when high, go into these lakes, but, until obstructed, the waters from these lakes escaped through a natural water course, through LaGrange plantation, into Cypress brake, and thence away from said plantations, and did no harm to the surrounding lands. The water course is entirely on the lands of defendant below (appellant here), and is about four hundred yards long. When these lakes are low that channel becomes dry, but when Cypress lake contains a large quantity of water, a swift current and bold stream flows through said channel. That during his ownership of Highland plantation, and of all previous ownerships thereof within the memory of man, said lake has been drained by said channel, and the right to Highland plantation to have that drainage water course was never denied, but always recognized, by the owners of Lagrange plantation.

That in the spring--in April--of 1892, appellant, the owner of Lagrange plantation, wrongfully put a dam...