McCune v. Commercial Pub. Co.

• Decision Date: 17 October 1927
• Docket Number: 26170
• Citation: 148 Miss. 164,114 So. 268
• Court: Mississippi Supreme Court
• Parties: MCCUNE v. COMMERCIAL PUB. CO. [*]

114 So. 268

148 Miss. 164

MCCUNE v. COMMERCIAL PUB. CO. ^[*]

No. 26170

Supreme Court of Mississippi

October 17, 1927

(Division B.)

1. SET-OFF AND COUNTERCLAIM. Trial court properly held in action on contract that unliquidated damages arising out of different contract could not be set off.

In suit for balance due under contract, lower court properly held that unliquidated damages arising out of breach of contract different and disconnected from contract sued on, could not be set off in such action.

2 TRIAL. Chancellor had right, within reasonable discretion, to extend time for filing pleadings after transfer of cause.

Chancellor had right, within reasonable discretion, to extend time for filing of pleadings after transfer of cause to chancery court.

3. APPEAL AND ERROR. Chancellor's finding of fact as to delay in filing of pleadings will not be disturbed when not manifestly wrong.

Finding of fact of chancellor as to delay in filing of pleadings after transfer of cause on account of alleged differences between counsel will not be disturbed by supreme court when not manifestly wrong.

4 JUDGES. Motion to recuse chancellor because of relationship must be filed before case is heard or as soon as counsel has knowledge thereof.

Motion to recuse chancellor as being disqualified because of rela tionship with one of parties must be filed before case is heard or as soon as counsel knew of fact of relationship.

5. APPEAL AND ERROR. Question arising on ruling by circuit judge before transfer of cause, is not properly before supreme court on appeal from chancery court.

Where demurrer to plea of set-off was sustained by circuit judge before transfer of cause to chancery court, question of correctness of ruling is not properly before supreme court for decision on appeal from chancery court's action under pleadings therein, in absence of ruling on that question before chancellor.

Division B

APPEAL from chancery court of Attala county.

HON. T P. GUYTON, Chancellor.

Action by the Commercial Publishing Company against F. G. McCune. Decree for plaintiff, and defendant appeals. Affirmed and remanded.

Decree affirmed and cause remanded.

H. T. Leonard, for appellant.

I. As to the first ground of demurrer, that it is a plea or claim for unliquidated damages against an open stated account, we say the two claims are almost identical, both alleging a breach of contract, and both alleging consequent loss in the amounts stated. If one is unliquidated, both are; if one unascertained, both are. Because it happens to be a different transaction does not make the nature of the demand different, and all the law requires is a mutuality of indebtedness. Section 528, Hemingway's Code; Wilkinson v. Searles, 70 Miss. 392, 13 So. 470; Miller v. American Nat'l Bank, 76 Miss. 84, 23 So. 439.

II. Other assignments of error grow out of the transfer of the case from the circuit to the Chancery court, authority for which is contained in section 163, Constitution of 1890, and sections 732-33, Hemingway's Code.

Section 733, Hemingway's Code, does not refer to the court to which the cause is transferred, but the court from which it was transferred. For example, the circuit court of Attala county at which the transfer was made was in September. Said section provides the bill shall be filed within thirty days. The chancery court did not convene until the second Monday of December, which is more than ninety days after the order of transfer was made. The order, if it could be made by the chancery court, could not date back and be made retroactive. Then also at the December term, 1924, when the order was entered granting complainant sixty days from said date to file said bill, this being fifteen months after the order of transfer, the court was without power to revive an extinct cause and by its edict breathe into its nostrils the breath of life. If the court had no jurisdiction to pass on the motion to dismiss at the December term, 1923, when the motion was first presented, and for the same reason at the December term, 1924, it certainly had no authority to grant complainant sixty days in which to revive his cause.

The only authority of law, or of this court to take such an order to overrule such motion, would be contained in the decision of this court in Foote-Patrick v. Caledonia Ins. Co., 113 Miss. 419, 74 So. 292. In that case the complainant used all due diligence in having its bill filed as soon as the papers were deposited in said court. In that case there was no showing of laches or negligence in preserving its rights. On the contrary, it appears that the complainant did everything required of it by law. In the case at bar, the exact opposite appears to be the case.

The point may be raised, as it was raised in the lower court, that complainant was not required to file new pleadings, or a bill in said court, but that the filing by the clerk of the declaration in the chancery court met the requirements of the statute. The above cited decision does not so construe it. In fact, it cannot be reasonably construed that a refiling of the declaration by the chancery clerk constitutes a filing of the pleadings in the court to which it is transferred.

We therefore earnestly submit that after the expiration of thirty days from the time the case was filed and papers deposited in the chancery court that the court was without authority to revive the case and the plaintiff was guilty of such gross laches as to forfeit all right to proceed further.

III. The third ground of assignment is that the trial court erred in overruling defendant's plea and application to dismiss said cause on the grounds of laches and failure of complainant to file the bill in time.

The negligent delay of the plaintiff had worked great and serious injury to defendant's legal defense. The intervention of two or three terms of court without any action being taken on its part had led defendant to believe the case had been abandoned and defendant, McCune, had sold out his business interests in Mississippi and moved himself and family to California where he now lives. To return for the defense of said cause would entail a great hardship upon him in having to leave his business and return for that case, besides great financial expense. In addition one of the co-defendants, C. C. Comfort, an important witness had since died. Also one of the co-guarantors of his contract, A. J. Sallis, had since died; and he would be deprived of the testimony of the said A. J. Sallis, which was very material to the proper defense of his case.

All of these facts, together with the laches of the complainant in taking any steps whatever to properly present its case to the chancery court had so seriously impaired defendant's legal rights as to deprive him of his day in court.

IV. The court erred in assuming jurisdiction of said cause and attempting to enter any order therein after motion had been filed to recuse, and its attention had been called to the disqualification of the presiding judge on the ground of relationship to one of the parties. Section 165, Constitution of Mississippi; section 715, Hemingway's Code of 1917; Y. & M. V. R. R. Co. v. Kirk, 102 Miss. 41, 58 So. 710; Dodd v. Kelly, 107 Miss. 471, 65 So. 561.

D. H. Glass, for appellee.

I. The plea of set-off sets up a breach of contract wholly different from the contract in this suit, and claims as a set-off against the amount sued for unliquidated damages in an amount in excess of the amount sued for. This court has held in quite a number of cases that unliquidated damages cannot be claimed as a set-off against a stated account. Burrus v. Gordon, 57 Miss. 93; W. T. Adams Co. v. Thomas, 87 Miss. 391; Whitaker v. Robinson, 8 S. & M. 349; Turner v. McAdory, 58 Miss. 27; Casper v. Thigpen, 48 Miss. 365.

II. Appellant also complains that the chancery court erred in overruling his motion to dismiss said cause for failure of complainant to file his bill of complaint within the sixty days and allowing appellee sixty days in which to file said bill in chancery.

The record shows that there was a misunderstanding between the attorneys representing the appellant and appellee and that evidence was taken before the court touching all matters connected therewith, and that after the court had heard and considered all matters connected with or bearing on this matter, the said court allowed the said bill in chancery to be filed out of time.

Matters of extending the time in which pleadings shall be filed are matters of judicial discretion for the trial court to exercise, after considering all the circumstances. By this extension of time no one could be injured.

III. Appellant further complains that the court erred in overruling his plea and application to dismiss this cause on the ground of laches and failure of complainant to file within the time allowed by law, which is practically the same error that appellant complains of in his assignment of error.

The court heard the evidence on said motion and went into the matter very carefully and after a...