Mabry v. Howington

• Citation: 569 So.2d 1165
• Decision Date: 19 September 1990
• Docket Number: No. 07-CA-58891,07-CA-58891
• Parties: E.O. MABRY v. Paul HOWINGTON.
• Court: United States State Supreme Court of Mississippi

Page 1165

569 So.2d 1165 E.O. MABRY
v.
Paul HOWINGTON. No. 07-CA-58891. Supreme Court of Mississippi. Sept. 19, 1990.
Rehearing Denied Nov. 21, 1990.

Charles C. Pearce, Everett & Pearce, Decatur, for appellant.

David W. Dreher, Jackson, for appellee.

Before HAWKINS, P.J., and ANDERSON and BLASS, JJ.

BLASS, Justice, for the Court:

This is an appeal by Mabry from a judgment of the Chancery Court of Newton County holding him in contempt of court and imposing a fine and jail sentence. The essential facts are set out below.

Paul Howington, plaintiff below, owned the south half of the two forty-acre tracts which lay north of and adjoining two forty acre-tracts owned by Mabry, defendant below, and his wife. Howington complained that Mabry had fenced in part of the land belonging to him in the west half of his land, farmed or rented it, and he sought to have the fence removed, the line determined, and damages for the use of his land. Mabry answered, denying the allegations about the location of the line and denying

Page 1166

any trespass, and concluded by pointing out that he only owned a one-half interest in the land, the other half being owned by his wife, Pauline. He moved to dismiss on the ground of her non-joinder, saying that she was a necessary party.

The next thing appearing in the record is an Order to Appoint Surveyor for Establishment of Boundary Line, dated October 1, 1982. This Order recites that it is an agreed order and is approved by the attorneys for both sides. The Order recited that both sides "hereby agree" to accept the line as established by the named surveyor. When the survey came in, Mabry did not agree, saying that there was no meeting of the minds and that there was in fact no agreement. The Chancellor held against Mabry, refused to set aside the Order of October 1, 1982, ordering the survey, and entered summary judgment for the plaintiff. Mrs. Mabry was never made a party; the survey line was adjudged to be the line binding between the parties; the fence was ordered down; the costs of the survey ordered paid; and both parties were ordered to "accept" the line. Mabry appealed, urging, most strongly, that the case could not proceed and the relief should not have been granted in the absence of Mrs. Mabry, who owned 50% of the property and whose homestead it was. Inexplicably and erroneously, we affirmed.

With the record in this shape, we come to the events which give rise to the present appeal. The surveyor's stakes were pulled up in the field. Mabry said he did this so the farming machines would not hit them. There was no proof as to whether this was done before or after the entry of the judgment. There was a verbal confrontation on the public road near the defendant's house when the plaintiff, a father and son named Alexander, and a man named Walton were about to "run a line" to describe a tract which one of the Alexanders desired to give to his daughter. The land lay north of Howington's land but apparently they were looking for a known point from which to start the survey, and Mabry saw them together on the road near his home and feared some kind of intrusion. At any rate, he went out to the group, armed with a survey plat, and in high dudgeon, to protest any possible entry on his property or his wife's. He spoke unkindly of his lawyers and of the court and indicated that he...