Mississippi Valley Trust Co. v. Brewer

• Decision Date: 21 April 1930
• Docket Number: 28502
• Citation: 128 So. 83,157 Miss. 890
• Court: Mississippi Supreme Court
• Parties: MISSISSIPPI VALLEY TRUST CO. v. BREWER et al

128 So. 83

157 Miss. 890

MISSISSIPPI VALLEY TRUST CO. v. BREWER et al

No. 28502

Supreme Court of Mississippi

April 21, 1930

Division A

1 DEPOSITIONS. De bene esse. Statute. Application. Witnesses within state. Law relating to depositions de bene esse on filing of bill in chancery only authorizes taking of depositions by witnesses within state (Hemingway's Code 1927, sections 1661-1663, 1669, 1670).

Hemingway's Code 1927, section 1669 (Code 1906, section 1936) authorizes the taking of depositions de bene esse without the issuance of commission and cannot be availed of in connection with sections 1661-1663 and 1670 (Code 1906, sections 1928-1930, 1938), relating to the taking of a deposition of nonresident witness, and providing for the filing of interrogatories and cross-examination by filing of cross-interrogatories or attending in person the examination and there cross-examining witness, and also requiring service of notice ten days before commission issues for taking of deposition.

2. APPEAL AND ERROR. Review. Questions not raised in lower court. Questions not raised In lower court cannot be considered on appeal.

3. PRINCIPAL AND SURETY. Written notice by surety. Legal proceedings. Court. Suit by nonresident in federal court having jurisdiction was sufficient compliance with statute requiring proceedings after notice in writing by surety (Hemingway's Code 1927, section 3109).

It appears that creditor, after surety had given written notice to prosecute legal proceedings in accordance with provisions of Hemingway's Code 1927, section 3109, failed to commence action in state court until after two terms of circuit court and one term of chancery court, but instituted a suit in United States District Court having jurisdiction of parties and subject-matter at the first term of such court after giving of the notice.

4. PRINCIPAL AND SURETY. Written notice by surety. Proceedings by creditor. Judgment. Prosecution to effect. That suit instituted by creditor after written notice by surety had not progressed to judgment did not establish that it was not prosecuted to effect (Hemingway's Code 1927, section 3109).

The suit by creditor was brought to the first term of the federal court after giving of notice by surety, and was being prosecuted in the ordinary way under the rules of procedure In federal court subject to exigencies of any lawsuit pending in that court without any showing of collusion between parties thereto.

5 EQUITY. Unclean hands. Settlement agreement. Prejudice. Creditor dismissing intervention without prejudice, and thereafter suing surety, did not come into court with unclean hands. The creditor, though not a party to agreement signed by parties litigant in cause being settled, dismissed intervention, as shown by stipulation in agreement, without prejudice to any right it might have, and with full right to sue thereafter as it might see fit.

HON. R E. JACKSON, Chancellor.

APPEAL from chancery court of Coahoma county, Second district HON. R. E. JACKSON, Chancellor.

Suit by Mississippi Valley Trust Company against Earl Brewer and others. Decree of dismissal, and complainant appeals. Affirmed in part, and in part reversed and rendered.

See, also, 151 Miss. 170, 117 So. 540.

Judgment affirmed in part, and reversed in part.

Shands, Elmore & Causey, of Cleveland, and Maynard, Fitzgerald & Venable, of Clarksdale, for appellant.

The court erred in sustaining the motion to suppress the deposition of witness H. A. Fagan.

The statute, being section 1936 of the Code of 1906, provides that the complainant, after bill filed in chancery, on affidavit made and filed, that any of his witnesses are sick may take the deposition of such witness on giving the opposite party such reasonable notice as the circumstances will permit, of the time and place of taking the same.

It was error in the lower court to refuse to permit the complainant to examine Earl Brewer, one of the defendants, as an adverse witness, because he was the husband of one of the other defendants.

Even if it could be held, which we will show later, should not be done, that Brewer was not competent as a witness on any issues as against Mrs. Brewer, his testimony on the other issues was competent and of vital importance. But we insist that under the facts of this particular case, he was competent as against all parties defendant.

People v. Toner, 187 N.W. 387; People v. Gosch, 82 Mich. 22, 46 N.W. 101; Sweikhart v. Hanarhan, 150 N.W. 833, 834, 835; Luick v. Arends, 132 N.W. 353, 362, 363; National German American Bank of St. Paul v. Lawrence, 80 N.W. 363; Waldauer v. Parks, 141 Miss. 617.

The court erred in holding that the failure of the complainant to file suit in either the chancery or circuit court against the Planters Bank in liquidation barred complainant's right of action against Earl Brewer and J. W. Cutrer, because of a failure to comply with section 3109, Hemingway's Code of 1927.

The complainant is a foreign corporation domiciled at St. Louis in the state of Missouri. The Planter's Bank in liquidation was a Mississippi corporation domiciled within the jurisdiction of the United States District Court for the Delta Division of the Northern District of the state of Mississippi, and the first term of said court following the giving of the notice was held in the city of Clarksdale on the third Monday in October, 1928. The complainant applied to the chancellor of the chancery court for the second district of Coahoma county, the court in which the liquidation of the Planter's Bank was being conducted, for authority to sue in the United States District Court, and filed its declaration against the Planter's Bank in said court.

If the act should be so construed so as to deprive the federal court of its jurisdiction, then the whole act is null and void.

A state cannot deprive one of the right to remove his case to the federal court or to sue therein.

Terral v. Burke Const. Co., 66 L.Ed. (U.S.) 352; W. U. Tel. Co. v. Frear, 216 F. 199; Cent. Un. Fire Ins. Co. v. Kelley, 282 F. 772; Quinette v. Pullman Co., 229 F. 333.

The chancellor in the court below expressly decided and adjudicated that appellees were guarantors of the notes sued upon; and no cross-assignment of error has been filed in this case, so that this question is not, and cannot be, before the court.

Without an assignment of error the appellate court will not consider any alleged error in the trial in the court below.

Smith v. Williams, 36 Miss. 545; 3 C. J., Appeal & Error, section 1462; Hattiesburg v. N. O., etc., R. R. Co., 143 Miss. 587; Supreme Court Rule 6.

Without assignment of error the appellate court will not consider any alleged error in the finding of fact by the court.

3 C. J., Appeal & Error, section 1474; Bank v. Rogers, 53 F. 776; Ins. Co. v. Hartford, 104 Me. 566, 129 A. S. R. 415; Printing Co. v. Water Co., 120 Minn. 268; 43 L.R.A. (N.S.) 706; Clements v. Hearne, 45 Tex. 415.

The same reason and the same rule apply to cross-assignments.

Miss. Fire Ins. Co. v. Evans et al., 153 Miss. 635.

The general rule is well settled that errors operating against an appellee or defendant in error will not be considered unless duly assigned.

Yazoo, etc., R. R. Co. v. Adams, 81 Miss. 90.

Cutrer & Smith, of Clarksdale, for appellees.

The court committed no error in suppressing the deposition of the witness Fagan. The effort to take the deposition of Fagan was extraordinary and beyond the pale of law.

The taking of depositions to be used in the courts of Mississippi, instead of through the personal appearance of witnesses, is a privilege granted which must be availed of in strict conformity to the statutes on the subject.

Section 1661 of Hemingway's Code of 1927, provides how the deposition of witnesses absent from or residing out of the state shall be taken. Section 1669 of the same Code provides for the taking of depositions of witnesses who are sick, aged or infirm, or about to go out of the state. There is no authority, for combining the two statutes and securing an additional composite right to take depositions in the manner sought to have been done in this case.

Hunt v. Crane, 33 Miss. 669.

There was no error in refusing to permit the testimony of Earl Brewer.

Chapter 35, page 40 of Laws of 1928; Byrd v. State, 57 Miss. 243; Leach v. Shelby, 58 Miss. 681; Virden v. Dwyer, 78 Miss. 763; Strauss v. Hutson, 104 Miss. 637.

The chancellor found as a matter of fact, that the appellant had not complied with the statute, section 3109, Hemingway's Code 1927, and that the appellant had unduly delayed to proceed in any court as required by the terms of the statute. There has never been any suggestion in the case that the appellees Brewer and Cutrer, are discharged because appellant did not sue in the state court, but the contention was and is that they are discharged because while notice to sue was given on the 9th day of May, 1928, no suit was filed in any of the three terms of state courts held prior to September, 1928, and no suit was filed in the United States court until too late to make the case triable at the October term, 1928, of the United States court, and no judgment was taken although no plea had been filed in the United States court during the time fixed by law.

The record shows no liability on the alleged guaranty.

A guaranty purporting to secure a debt already due is without consideration, and void, no present consideration operating to support the same.

Clopton v. Hall, 51 Miss. 482; Owen Tie Co. v. Bank of Woodland, 136 Miss. 114.

The obligations sued upon are not within the terms of the guaranty.

Cutrer & Smith and Brewer & Brewer, of Clarksdale, for appellees.

Nothing can be clearer both upon principle...