Mcrae v. Ashland Plantation Co., 33922

• Court: Mississippi Supreme Court
• Writing for the Court: McGehee, J.
• Citation: 187 Miss. 350,192 So. 847
• Parties: MCRAE v. ASHLAND PLANTATION CO. et al
• Docket Number: 33922
• Decision Date: 08 January 1940

192 So. 847

187 Miss. 350

MCRAE
v.
ASHLAND PLANTATION CO. et al

No. 33922

Supreme Court of Mississippi, Division B

January 8, 1940

Suggestion Of Error Overruled February 19, 1940.

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

Action by J. E. McRae against the Ashland Plantation Company and others to recover for alleged usurious interest charges, for forfeiture of principal, and for accounting for price of cotton produced by the plaintiff's assignors. From a decree dismissing the bill of complaint on the ground that a local resident had been improperly joined as a defendant for purpose of conferring territorial jurisdiction in county, the plaintiff appeals. Affirmed.

Affirmed.

James O. Eastland, of Ruleville, and Sam L. Gwin, of Greenwood, for appellant.

The chancery court of Humphreys County, Mississippi, should not have entertained the three motions of the defendants, Richard Kinkead, Ashland Plantation Company, and E. M. Herr, respectively, to dismiss the bill of complaint for want of jurisdiction because the defendant, Richard Kinkead, was not liable to the complainant, or for any other reason. The procedure pursued by counsel for the moveants and permitted by the court is not permissible under the laws of this state, and the reason for that is apparent from what transpired in the trial of these motions and the dismissal of the cause and the refusal of the court to permit the bill of complaint then to be amended, assigning as the reason therefor that a bill of complaint dismissed on motion, without prejudice, cannot be amended. If this practice were permissible, then every defective bill of complaint could be dismissed on motion, and the statutes and practice relating to liberality of amendments would be ineffectual. If the defendants in the court below had demurred to the bill of complaint and the demurrers had been sustained, the complainant would have had the right as of course to amend the bill of complaint. The decision by the chancellor sustaining a demurrer might be that the bill of complaint should be dismissed, but, nevertheless, on seasonable application, as in this cause, to amend, the chancellor under the law would be required to grant leave to amend the bill of complaint. Whereas, in the view expressed by the chancellor when he had announced that the motions to dismiss would be sustained, the bill of complaint could not thereafter be amended, even on application made simultaneously with his announcement of his decision. If that is to be declared by this court as permissible, or without error, then hereafter no defendant would demur to a defective bill of complaint, but would much preferably move to dismiss the bill of complaint, knowing that the sustaining of the demurrer would be followed inevitably by leave to amend the bill of complaint; whereas, if the same conclusion were reached by the chancellor on a motion to dismiss, there could be no amendment. The purpose of the law is to bring the merits of the case to issue and to permit amendments for that purpose, so that a trial of the case may be had.

The practice of motions to dismiss a bill for no cause of action which has recognition in some jurisdictions is not allowed with us.

Griffith's Chan. Practice, Sec. 307; Whitney v. Cotten, 53 Miss. 689, at page 693; Majors v. Majors, 58 Miss. 806; Jackson v. Lemler, 83 Miss. 37, at page 45.

It is somewhat difficult to conceive the theory upon which the trial court, of its own motion, dismissed the bill of complaint as to Berkshire Fine Spinning Associates, Inc. The bill of complaint alleged that Richard Kinkead, Ashland Plantation Company, a corporation, E. M. Herr and H. T. Odom were each and all of them the agents of Berkshire Fine Spinning Associates, Inc. Summons for Berkshire Fine Spinning Associates, Inc., was served personally by the sheriff of Humphreys County, Mississippi, on the agent Richard Kinkead, as manager of Berkshire Fine Spinning Associates, Inc., and by the sheriff of Leflore County, Mississippi, on each of the other three agents. The first decree of dismissal as to Berkshire Fine Spinning Associates, Inc., was made by the court in response to the motion of the complainant for a decree pro confesso against said corporation. The allegations of the bill of complaint and the return of the sheriffs on the summonses were sufficient, at least prima facie, to bring Berkshire Fine Spinning Associates, Inc., into court, and, even if the motion for a decree pro confesso should have been denied, for which no reason seems to appear, certainly it does not justify such a response from the court. The summonses and the returns of the sheriffs thereon were in conformity to the allegations of the bill of complaint. Berkshire Fine Spinning Associates, Inc., filed no pleading and made no appearance.

The same observations apply with equal force to Silver Creek Company, Inc., alleged in the bill of complaint to be domiciled in Humphreys County, Mississippi.

Counsel for the three defendants filing motions to dismiss the bill of complaint and cause was permitted by the trial court to introduce, over the objection of the complainant, in the bearing of the motions to dismiss, in which Silver Creek Company, Inc., did not participate, a certified copy of a decree of the chancery court of Coahoma County, Mississippi, dissolving, on the ex parte petition of the stockholders, officers and directors of Silver Creek Company, some corporation, in said decree styled "Silver Creek Company, " without the appointment of liquidators, and without notice to any person. There was no proof that the corporation involved in that proceeding was identical with the corporation defendant to the bill of complaint, which was designated in the bill of complaint as "Silver Creek Company, Inc., " and alleged in the bill of complaint to be domiciled in Humphreys County, Mississippi.

In no event could that decree of dissolution affect the right of the complainant to sue and recover a decree against the corporation named as a defendant in the bill of complaint, whether it be the corporation named in the bill of complaint and domiciled in Humphreys County, Mississippi, or the corporation named in the decree and therein recited to be domiciled in Coahoma County, Mississippi, nor prevent the complainant, after a decree against the corporation, which is properly the first step to recovery, from pursuing the assets of the corporation into the hands of the stockholders who participated in the distributions of the corporation's assets.

Bates v. Miss. Industrial Gas Co., 173 Miss. 361, 161 So. 133.

No damages were shown, or attempted to be shown, to Ashland Plantation Company or any of the other defendants by the appointment without notice of a receiver in this case, except the attempt to show damages by way of an attorney's fee. No attorney's fees my way of damages should have been awarded against the complainant in favor of Ashland. Plantation Company, as was done by the trial court.

The application for the appointment of the receiver in this case was merely ancillary to the relief sought in the bill of complaint, and no attorney's fee should have been awarded...