Jackson Opera House Co. v. Cox
| Decision Date | 27 November 1939 |
| Docket Number | 33890 |
| Court | Mississippi Supreme Court |
| Parties | JACKSON OPERA HOUSE CO. et al. v. COX |
JACKSON OPERA HOUSE CO. et al.
v.
COX
No. 33890
Supreme Court of Mississippi, Division B
November 27, 1939
October 30, 1939
Suggestion Of Error Overruled January 8, 1940.
APPEAL from the circuit court of Hinds county HON. J. P. ALEXANDER, Judge.
Proceeding between the Jackson Opera House Company and others and Harold Cox, receiver. From an adverse judgment, the former appeal. On motion to strike from the record the stenographer's transcribed notes of the testimony. Motion sustained.
Action by Harold Cox, receiver of the Merchants Bank & Trust Company, against the Jackson Opera House Company and others, for mandamus compelling the transfer of stock certificate and issuance of new certificate. From a judgment for plaintiff, defendant appeals. Affirmed.
Affirmed.
W. S. Henley, of Hazlehurst, and Green, Green & Jackson, of Jackson, for appellee, on motion.
Herein, as appears from the decree, in April, 1939, Harold Cox was receiver of The Merchants Bank & Trust Company, in the Chancery Court of Hinds County, Mississippi, and there Honorable F. H. Bradshaw was his attorney when this cause was tried. Thereafter Cox, as receiver, was discharged, the Bank found solvent and all of its assets redelivered to it, so that it presently stands before the court as the owner of these two certificates of Jackson Opera House Company stock in controversy. In this condition, the cause was tried March 24th, at which time the judgment was entered. The court adjourned March 25th. No notice was given to the stenographer to file his notes until April 12th, though conversation was initiated at April 7th, which was ten days past adjournment date. So that as at April 7th, five days before the notice was given, there had been a complete failure on the part of the appellant to give the notice.
9 C. J. S. 967.
The receiver, Honorable Harold Cox, was absolutely without authority to waive any right possessed by the Bank for the receivership, as to the stenographer's notes.
High on Receivers (4 Ed.), p. 311, sec. 264; 53 C. J. 345; Toler v. Wells, 158 Miss. 628, 130 So. 301; Woods v. Elliot, 49 Miss. 180; 24 C. J. 297; 37 C. J. 721.
Herein there was a total failure to comply with the jurisdictional requirements of notice, which renders requisite that the stenographer's notes be striken.
Spitchley v. Covington (Miss.), 177 So. 31; Mayflower Mills v. Breeland, 168 Miss. 207, 149 So. 787, 789.
Of the power of the attorney for the receiver to waive, the letter of Mr. Bradshaw to Mr. Cameron expressly called attention to the possible want of authority and merely said that so far as the counsel was individually concerned he would not make the point. The power of counsel, even had he represented the Bank, did not extend to the right to surrender a valuable right of clients.
5 Am. Jur. 300, sec. 70; 7 C. J. S., p. 922; Hoffman v. Owens, 103 P. 414; Marx v. Lewis, 53 P. 600; Stanton v. Ballard, 133 Mass. 464; U.S. v. Newman, 25 F.2d 357.
The notice being jurisdictional and not being given within the ten day period, the notes must be striken.
Ben F. Cameron, of Meridian, for appellants, on motion.
The motion does not seem to challenge the sufficiency of the waiver, or agreement, the only point apparently being that what the receiver's attorneys did was not binding, because the receiver did not obtain specific chancery court authority for making the agreement.
The point raised has to do with a mere technical procedural detail, such as any lawyer is called upon to handle in almost every case he tries. The matter is not vital in any degree to the real merits of the controversy and does not affect all the fundamental rights of the receiver to prevail in the suit, if it has intrinsic merit.
In far more vital matters the vast majority of courts permit waivers to stand when made by receivers, just as in the case of private individuals.
23 R. C. L. 126.
Here we have a specific agreement by the receiver, through his own action and through his attorney of record, on which agreement complete reliance was placed by the appellant. Relying on the agreement, appellant went ahead and prosecuted the appeal and incurred the expense incident thereto.
The circuit court actually adjourned on March 25th, of which fact attorney for the appellants was advised on April 7th.
On April 7th attorney for appellants asked attorney for appellee if he would omit to make the point that the notice to the stenographer was not given within the ten day period, if appellant should prosecute its appeal. Appellee's attorney replied that he thought it would be all right, but would consult the receiver.
April 10th, appellee through his attorney agreed in writing that no point would be made in the Supreme Court about failure to give notice to the stenographer within ten days.
All steps looking toward prosecution of the appeal were made in full reliance on this agreement.
The receiver was specifically given authority to file this suit and "prosecute it to final conclusion." This authority carried with it the right to make any agreements and to take any position which would normally be involved in the give and take of the trial of a lawsuit. This necessarily inheres in the prosecution of a suit by a fiduciary, or any other litigant. Not a day passes in the trial of lawsuits when agreements are not made by counsel engaged in the trial, and without such agreements trials would be tedious and vexatious indeed.
Alderson on Receivers, pp. 714, 740.
The right to waive or to be estopped with respect to a procedural detail is recognized in 23 R. C. L. 126, in which the matter is being discussed of the necessity of obtaining permission to sue a receiver. Surely that is a valuable right and one which has to do with the very possession of the assets of the receivership by the receiver. Since a matter of procedure only is involved, however, the courts have not hesitated to hold that a receiver waives a right to require permission to sue by entering his appearance and not challenging the absence of permission to sue.
24 C. J. 768; 53 C. J. 353, 356; Elkhart v. Ellis (Ind.), 15 N.E. 249.
Stress is laid by our opponents on the holding by this court that the giving of notice to a stenographer is jurisdictional. Surely this holding is not intended to have the effect of declaring that such notice is "jurisdictional" in the sense that the court is without power to move, unless the requisite step is performed. "Jurisdictional" is an...
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