Mills v. Rollins

• Decision Date: 20 December 1897
• Court: Mississippi Supreme Court
• Parties: WANITA WOOLEN MILLS v. SUSAN A. ROLLINS

22 So. 819

75 Miss. 253

WANITA WOOLEN MILLS v. SUSAN A. ROLLINS

Supreme Court of Mississippi

December 20, 1897

December 1897

FROM the chancery court of Lauderdale county HON. W. T. HOUSTON Chancellor.

The facts are sufficiently stated in the opinion of the court.

Action is affirmed.

Fewell & Brahan, for appellant.

It is submitted that upon the pleadings the appellant was entitled to a final decree dismissing the bill. All the material allegations of the bill were denied by the answer, and no testimony was taken. In this state of case the court ought to have decreed for appellant. The answer put in issue the allegations of the bill, and put the complainant to proof of those allegations. We insist that the decree was erroneous and that it should be reversed, and that this court should render a decree dismissing the bill as the court below ought to have done.

S. A Witherspoon, for appellee.

The appeal is without merit, and is based upon a mere technicality which will not avail on this record.

1. The allegations of the bill are not denied in such way as to require proof. The answer denies that appellant was indebted to appellee on May 1, 1888. This is a literal but not a substantial denial of the debt. It was not material whether the indebtedness existed on that day or not. It may have been created the next day, week, month, or year, and the papers dated May 1, 1888, and yet be a debt for which the court would foreclose the mortgage.

2. The certified copy of the mortgage exhibited with the bill has the same effect as the introduction of the original would have had, and is ample proof to sustain the allegations of the bill and to overthrow the affirmative allegations of the answer. The recitals of the exhibits show the existence of the debt, that its consideration was borrowed money, that the stockholders held a meeting and directed the money to be borrowed and the security to be given, and authorized the execution of the paper sued upon.

3. Under the pleadings it was not necessary to prove the execution of the note and mortgage, because the appellant did not deny it under oath. The appellant has made the mistake of supposing that because an answer under oath was waived therefore it could put the appellee upon proof of the execution of the note and mortgage without a denial under oath. That is not the law. Section 1797, code 1892, provides that it is unnecessary to prove "the execution of any instrument" unless it is denied specially "by plea verified by oath." This provision applies to all courts, as provided in § 1810 of the same code. In McBride v. Kilgore, 55 Miss. 242, § 1797 was applied to a justice of the peace court, though in no other case is a written plea required in sad court. Its application in a chancery court is much more evident.

OPINION

TERRAL, J.

This is a bill by Mrs. Rollins against the appellant, a corporation, to foreclose a mortgage executed by its president and secretary, to secure its promissory note for a large sum of money. The complainant, in her bill, waived an answer on oath. A copy of the note was filed with the bill, and also a certified copy of the mortgage. The answer denied the execution of the note and mortgage by the defendant, and all other averments of the bill, but admitted that the president and secretary of said company had executed said mortgage, but without authority. On bill and answer, a decree was entered for Mrs. Rollins, and the appellant insists that the decree should have been in its favor.

We think, in order to put the proof of the execution of the note and mortgage upon the complainant, the answer of the defendant should have been verified by affidavit. Section 1797, annotated code of 1892, provides that "in suits founded on any written instruments set forth in the pleading, it shall not be necessary to prove the signature or execution thereof, Unless the same be specially denied by a plea, verified by the oath of the party pleading the same." If the answer of the defendant had been sworn to, it, night have served, equally as a plea, to require proof of the execution of the note and mortgage.

The statute, § 534, annotated code 1892, which authorizes a complainant to waive...