Harvey v. Dunaway Bros.

• Decision Date: 18 November 1957
• Docket Number: No. 40562,40562
• Citation: 232 Miss. 89,98 So.2d 143
• Parties: Oscar HARVEY v. DUNAWAY BROTHERS, a Partnership Composed of W. A. Dunaway and O. B. Dunaway.
• Court: Mississippi Supreme Court

Page 143

98 So.2d 143

232 Miss. 89

Oscar HARVEY v. DUNAWAY BROTHERS, a Partnership Composed of W. A. Dunaway and O. B. Dunaway.

No. 40562.

Supreme Court of Mississippi.

Nov. 18, 1957.

J. Edward Jones, Chicago, Ill., for appellant.

Paul N. Nunnery, Hollandale, for appellees.

HOLMES, Justice.

This is an appeal from a decree of the Chancery Court of Washington County rendered on the 24th day of October, 1956, dismissing the appellant's petition to have vacated and set aside a decree of said court rendered in this cause on October 17, 1956.

The litigation grows out of a lease agreement entered into between the appellant and the appellees on December 20, 1952, whereby the appellees leased to the appellant 100 acres of land in Washington County for the year 1953. The lease agreement provided that the appellant should pay to the appellees as rent for said leased premises a cash sum equal to one-fourth of the gross proceeds from the sale of all cotton and cotton seed grown on said lands during the year 1953, and, in addition, the sum of $10 per acre for lands not planted in cotton. The appellant obligated himself to plant at least 75 acres of cotton on the leased premises. It was provided in the lease agreement that the appellant would break up and cultivate the said land in a prudent, careful and husband-like manner and promptly harvest and gather the crops grown on said premises, and that if said appellant should neglect said crops so that the appellees apprehended loss, then the appellees might supply help for the appellant at the option of the appellees and charge such help to the appellant. The lease agreement further provided that the appellees were granted the first option to purchase all cotton grown and produced by the appellant and those in his employ or under his control on the leased premises, provided only that the prices offered by the appellees for such cotton should be the same as prices then being offered by the other cotton buyers in Washington County, Mississippi.

At the expiration of the crop year, the appellees, according to the testimony in their behalf, undertook to effect a settlement and an accounting with the appellant for the purpose of bringing their relations as landlord and tenant to a close, but the appellees were unable to get the appellant to discuss the matter or to bring about a settlement of the account between them. The appellant quit the leased premises sometime during the latter part of the month of December, 1953.

On January 2, 1954, the appellant, through his attorney, John B. Gee, of Vicksburg, Mississippi, filed suit against the appellees in the Chancery Court of Washington County seeking the seizure of certain of the cotton grown on said leased premises and an accounting from the appellees covering the period of their relations. This suit appears never to have been prosecuted although no reason therefor appears in the record.

On January 30, 1956, the appellant, through the law firm of Kellner and Kellner of Greenville, Mississippi, as his attorneys, filed an original bill in the Chancery Court of Washington County against the appellees, seeking a settlement and an accounting with the appellees covering the period of their relationship as landlord and tenant. Process was duly issued and duly served in said cause, returnable to the March 1956 term of the Chancery Court of Washington County.

On March 29, 1956, the appellees filed their answer to the original bill of complaint and attached to their answer what they claimed to be a full account of the transactions and relationship between the parties growing out of the lease of said land, and in said answer, the appellees showed an indebtedness of $377.74 to the appellant, after making all proper charges as they claimed against the appellant and crediting the appellant with his share of the cotton and cotton seed.

By an agreement between the counsel for appellant and counsel for the appellees, the cause was set down for final hearing on the last Friday of the March 1956 term of the court, being March 30, 1956. Thereafter by agreement of the attorneys for the respective parties, the cause was continued to a vacation hearing to be fixed at a time and place agreeable to the parties and to the court. No vacation hearing of said cause was had, and thereafter, prior to the July 1956 term of the court, the appellant dismissed his attorneys Kellner and Kellner. At the July 1956 term of the court, the appellees announced ready for trial and the cause was set for hearing on the last Wednesday of July, or July 25, 1956. It appeared that after the appellant had dismissed his attorneys, Kellner and Kellner, he left the State of Mississippi and went to Memphis where he conferred with one or more attorneys with a view of having them represent him in this matter. He then went to Chicago, Illinois, where he employed the firm of Moore, Ming and Leighton as attorneys to represent him in the lawsuit.

Although the firm of Kellner and Kellner had been dismissed, they were communicated with by the firm of Moore, Ming and Leighton and in correspondence directed to Moore, Ming and Lighton by Kellner and Kellner during July, 1956, the firm of Moore, Ming and Leighton requested a continuance of the cause at the July term, and Mr. Ernest Kellner, Jr., of the firm of Kellner and Kellner, as a friend of the court, agreed to communicate such request for a continuance to the court, and did so communicate it, and the request was granted and the cause passed to the October 1956 term of the court, and set for the first Wednesday of the term, being October 17, 1956, and the firm of Moore, Ming and Leighton, by direction of the court, was duly notified of such setting.

On September 21, 1956, the clerk of the court received a letter from one Morton Lewis, an attorney of Chicago, Illinois, purporting to represent the appellant, and inquiring of the clerk when the cause was set for trial. The clerk informed Morton Lewis that the firm of Kellner and Kellner had withdrawn as counsel for the appellant, and that the cause had been set for final hearing on October 17, 1956.

On the night of October 14, 1956, Ernest Kellner, Jr., received a telephone call from one J. Edward Jones, purporting to be an attorney of Chicago, Illinois, representing the appellant, and during the course of the telephone conversation, the appellant in person also talked to Mr. Kellner, and Kellner advised both Lewis and the appellant that the cause had been set for hearing by the court on October 17, 1956. On the convening of the October 1956 term of the court, and on the sounding of the docket of said court on the first day of the term, that is, on October 15, 1956, the court again set the cause down for final hearing on October 17, 1956. On said date, the appellees, their witnesses, and their counsel, were present in court and announced ready for trial. The appellant, Oscar Harvey, who had been duly notified of the setting of the case, having been advised through his various counsel, as well as in person, failed to appear upon being called, and the appellees, the defendants in said cause, applied to the court for a hearing of the cause on its merits.

The court held that the appellees were entitled to a hearing of the cause on its merits and proceeded to a hearing of the same, at which hearing testimony was heard and considered by the court and the court made a full and complete finding that the account which the appellees had attached to their answer was in all respects true and correct, and that the appellant had not been wrongfully charged with any items on the account, and had been duly and properly credited with his share of the cotton and all other sums to...