Ham v. Kings Daughters Circle No. 4 of Greenville, Miss

• Decision Date: 21 May 1934
• Docket Number: 31235
• Citation: 170 Miss. 490,155 So. 164
• Court: Mississippi Supreme Court
• Parties: HAM et al. v. KINGS DAUGHTERS CIRCLE No. 4 OF GREENVILLE, MISS

155 So. 164

170 Miss. 490

HAM et al. v. KINGS DAUGHTERS CIRCLE No. 4 OF GREENVILLE, MISS

No. 31235

Supreme Court of Mississippi

May 21, 1934

Division A

1 PARTIES.

Generally nonjoinder of parties is properly reached by plea.

2 INJUNCTION.

In suit by fraternal organization to enjoin interference with its rights in operation and management of colored hospital, city and county which had no substantial interest in subject-matter, and wherein effective decree could be rendered against alleged usurpers and continuing trespassers without making city and county parties to suit, held not necessary parties.

3. INJUNCTION.

Where trespass is continuous in nature, and repeated acts of trespass are done or threatened, although each act, taken by itself, may not be destructive or inflict irreparable injury, entire wrong may be prevented by injunction.

4. INJUNCTION.

Where agent appointed by county board of supervisors, and mayor of city, operated hospital over protest and without consent of fraternal order which was owner thereof, acts of agent and mayor in exercising control over nurses and employees of hospital held continuing trespass, subject to be enjoined.

HON. J. L. WILLIAMS, Chancellor.

APPEAL from chancery court of Washington county HON. J. L. WILLIAMS, Chancellor.

Suit by the Kings Daughters Circle No. 4 of Greenville, Mississippi, against E. G. Ham and another. From a decree overruling a demurrer to the bill, and overruling a motion to dissolve the temporary injunction theretofore granted on bill and demurrer, the defendants appeal. Affirmed, and cause remanded.

Affirmed and remanded.

Ernest Kellner, Jr., of Greenville, for appellants.

It is settled in Mississippi, as well as generally, that the nonjoinder of necessary parties is such a defect that the court will not in any event proceed.

Griffith's Chancery Practice, sec. 107 et seq.; McPike V. Wells, 54 Miss. 148; Lemmon v. Dunn, 61 Miss. 210; Terry v. Heirs of Gibson, 108 Miss. 749.

A bill that shows on its face to be lacking in necessary parties is demurrable.

Smith v. Denny, 90 Miss. 439.

Necessary parties are those persons in whose behalf a substantial interest in the subject of the litigation is claimed which will be affected by the decree and without whom no complete, practicable and executable final decree can be rendered.

Griffith's Chancery Practice, sec. 108; Moody v. Harper, 38 Miss. 600; Foster v. Jones, 17 So. 895; Eustice v. Holmes, 52 Miss. 312; Griffith's Chancery Practice, sec. 110.

The bill alleges that the acts of appellants constitute a continuing trespass. This allegation is a mere conclusion not supported by the facts alleged. A continuing trespass is one composed of numerous single acts.

Mills v. New Orleans Seed Co., 65 Miss. 391; Moss v. Jourdan, 129 Miss. 598.

Percy & Farish, of Greenville, for appellee.

Washington county and the city of Greenville were not necessary parties and were not even proper parties to the bill of complaint. No relief was prayed against Washington county or the city of Greenville.

Griffith's Chancery Practice, secs. 286 and 288; Smith v. Denny & Co., 90 Miss. 434, 43 So. 479.

It is the general rule that the nonjoinder or misjoinder of parties must be raised by plea, and if the defendants deemed the joinder of the city of Greenville and Washington county necessary, they should have suggested the same.

Belt et al. v. Adams, 125 Miss. 387, 87 So. 666.

Argued orally by Ernest Kellner, Jr., for appellant, and by H. P. Farish, for appellee.

OPINION

McGowen, J.

Appellee, Kings Daughters Circle No. 4 of Greenville, Mississippi, a corporation, exhibited its bill against E. G. Ham and F. G. Millette, in the chancery court of Washington county, praying for an injunction against appellants from interfering with its rights in the operation and management of a colored hospital in the city of Greenville, and for an accounting by appellants of the business conducted in said hospital during the time they had operated the same. A demurrer was interposed to the bill, and a motion to dissolve the temporary injunction theretofore granted on bill and demurrer was likewise overruled, and an appeal is prosecuted here from that decree.

Appellee was the owner of a lot in the city of Greenville on which was situated a hospital, operated by it for the sick and afflicted negro population of Washington county, including the city of Greenville. It was alleged, after the flood of 1927, that, at the request of the white citizens of Greenville, appellee agreed that a committee should operate the hospital with a representative of appellee thereon. In June, 1933, appellee, having become dissatisfied with the management of the hospital, notified Davis, its representative, that it would dispense with his services as their representative, and thereafter Washington county filed a suit against appellee, claiming title to the property. The suit was tried, and a decree was rendered dismissing the bill of the county. Thereafter F. G. Millette was appointed by the board of super visors of Washington county, and he, with E. G. Ham, mayor of the city of Greenville, operated the hospital, as managers, over the protest and without the consent of the Kings Daughters. Demand was made upon Ham and Millette by the appellee to discontinue the operation of the hospital, which demand was refused by both of them; Millette stating to the attorney for the appellee that they had a right under the law to operate the hospital, and would do so unless enjoined by a court.

The bill charged that neither the board of supervisors nor the appellants had any right to control and manage the hospital; that they were usurpers and trespassers and had no authority either in law or equity; and that the act of the defendant in refusing to deliver its property and control on demand constituted a continuing trespass and interference with the rights of the complainant, the appellee, in the management of the said hospital. The injunction prayed was granted, and Ham and Millette were enjoined from interfering with the operation of the hospital.

A demurrer was filed to the bill of complaint on three grounds First, the...