Murphy v. American Soda Fountain Co.
| Decision Date | 24 July 1905 |
| Citation | 86 Miss. 791,39 So. 100 |
| Court | Mississippi Supreme Court |
| Parties | THADDEUS L. MURPHY ET AL. v. AMERICAN SODA FOUNTAIN COMPANY |
FROM the chancery court of Harrison county, HON. THADDEUS A. WOOD Chancellor.
The American Soda Fountain Company, the appellee, was complainant in the court below; Thaddeus L. Murphy and another, doing business under the firm name of Murphy & Company, and others appellants, were defendants there. From a decree in complainant's favor the defendants appealed to the supreme court.
The object of the suit was to restrain the Gulf & Ship Island Railroad Company from paying a judgment rendered against it in favor of Murphy & Company for the loss and destruction of a soda-water fountain which had been shipped by complainant to Murphy & Company. The decree appealed from overruled defendants' motion to dissolve the injunction.
The bill alleged that the American Soda Fountain Company, the complainant, sold Murphy & Company a soda fountain for $ 200 of which $ 5 was paid cash, and that complainant retained title to same until the deferred payments were made in full that the fountain was delivered to the railroad at Chicago and arrived at Lyman, Miss. where it was consigned, and it was destroyed by fire while in the depot; that afterwards Murphy & Company brought suit against the Gulf & Ship Island Railroad Company for the loss. After suit was brought, but before judgment, an agreement was entered into between Murphy & Company and the complainant to the effect that the suit was to be prosecuted by Murphy & Company, in their names, to judgment, and after judgment was obtained the debt of the complainant was to be paid from the proceeds, Murphy & Company to have any balance. After the bill had been filed, complainant, being advised by the answer of the original defendants that the claim had been assigned by Murphy & Company to Evon Barber and one Mize, the members of a copartnership doing business under the firm name of Barber & Mize, amended its bill, making them parties; alleging that they were not innocent purchasers for value, but had full knowledge of the rights of complainant.
Affirmed and remanded.
Barber & Mize, for appellants.
The reservation of title to the soda fount in the American Soda Fountain Company did not extend so far that said American Soda Fountain Company could subject in a court of equity to the payment of said lien the proceeds of a judgment obtained in the name of Murphy & Company against the Gulf and Ship Island Railroad Company for the breakage of said fount while in transit, which fount was destroyed by fire while in the depot of the railroad company.
If the property wherein title is retained until it is fully paid for is lost or destroyed, the loss must be borne by him in whom the title is. 21 Am. & Eng. Ency. Law (lst ed.), 634.
The case of Burnley v. Tufts, 66 Miss. 48, does not conflict with this authority. That case has gone further than any case we have been able to find in favor of the vendor with title retained. In that case the fount was in the possession of the vendee and had been in use for quite a while, and after its destruction by fire he contended that he was not liable for the purchase price, but the court held that he was liable. In the case at bar Murphy & Company are liable for the price of the fount, but they should be sued in a court of law for the remainder of the purchase price. The appellee's remedy is solely in a suit at law, because it is shown by the testimony in this cause that T. L. Murphy, one of the partners of Murphy & Company, instead of being insolvent, is wholly solvent, being the owner of personal property and of four or five hundred acres of timbered land in Jackson county, Miss.
The doctrine that, under these circumstances, the judgment in question can be subjected by the original vendor to the payment of the balance of the purchase price is preposterous.
Appellee's injunction should be dissolved for another reason. Murphy & Company, at the time they obtained the judgment against the Gulf and Ship Island Railroad Company, had no interest in said judgment, the cause of action having been assigned to Barber & Mize, under Acts 1902, p. 118, long before judgment was obtained. The cause of action was the property of Barber and Mize, and they proceeded to judgment, as the law directs, in the name of Murphy & Company. This assignment of the cause of action to Barber & Mize must prevail over the claim for the purchase price by appellee, because at the time of the assignment of said cause of action to Barber & Mize appellee had no claim against Murphy & Company which could be set off against any judgment or cause of action owned by T. L. Murphy & Company. Cook v. Holly, 70 Miss. 590.
Harper & Harper, on the same side.
It is fundamental that injunctions will lie only to restrain the issuance of executions based upon void judgments at law.
Courts of equal rank and dignity can never nullify the valid acts of each other directly or indirectly. An injunction will lie to restrain the issuance of an execution based upon a void judgment only because a void judgment is no judgment.
The bill nowhere alleges, the proof did not even tend to show, nor was it contended, that the judgment in question had at law was void. The circuit court of Harrison county is a court of original, general, and constitutional jurisdiction, and of equal rank with the honorable chancery court of the same county. Unless it affirmatively appear that the circuit court did not have jurisdiction to render the aforesaid judgment, this court will indulge in the presumption that it did not act without first having acquired jurisdiction in the premises.
But the record shows in the case at bar that the circuit court had jurisdiction of the subject-matter of the controversy; that personal service was had on defendant; and that the defendant, the railroad company, had a full opportunity to be heard. Therefore the judgment at law here involved is valid until reversed on direct appeal.
J. I. Ballenger, and Gardner & Heiss, for appellee.
Either the American Soda Fountain...
To continue reading
Request your trial