Murphy v. City of Meridian

• Decision Date: 18 November 1912
• Citation: 60 So. 48,103 Miss. 110
• Court: Mississippi Supreme Court
• Parties: MRS. M. J. MURPHY v. CITY OF MERIDIAN

60 So. 48

103 Miss. 110

MRS. M. J. MURPHY v. CITY OF MERIDIAN

Supreme Court of Mississippi

November 18, 1912

October 1912

APPEAL from the chancery court of Lauderdale county, HON. SAM M WHITMAN, Chancellor.

Bill by Mrs. M. J. Murphey against the city of Meridian. From a decree dismissing the bill, plaintiff appeals.

The appellant brought suit in the chancery court for the purpose of righting certain alleged wrongs and adjusting certain alleged damages set up in her bill of complaint against the city of Meridian, growing out of the laying of a pavement on the street in front of her residence, whereby the grade was changed, leaving appellant's residence below the grade of the street and sidewalk. The bill prays for an accounting to ascertain the amount of the damage done her and to make her whole, alleging that it will be necessary to raise her residence, surface her yard, and lay a walk, and various other things. The chancellor sustained a demurrer and dismissed the bill on the ground that the bill on its face showed that it was not properly brought in the court of chancery, but belonged to the circuit court.

Reversed and remanded.

G. Q Hall, Hall & Jacobson, for appellant.

The prayer of the bill is for an accounting of the damages imposed by means of the acts complained of and the amount ascertained that will be necessary to restore her premises to the like conditions in all respects, in which they were before the said change of grade was made in said street and sidewalk, to wit, cost of restoration of curb, restraining water, refilling of lot so as to restore it to its proper elevation, expense of elevating her residence and other buildings to a like condition with referecne to the present grade as they sustained with reference to the former rebuilding and extention of chimneys and pillars, expense of restoration of her premises in all respects to their previous state and condition.

The second paragrpah of the prayer has relation to the outlay made and expenses incurred by her in consequence of former change in grade.

Then with those facts ascertained the third paragraph prays that by mandatory injunction or other proper order, defendant be directed as to what things it shall do, and how and in what time they shall be done and what amount of cash shall be paid plaintiff; or in the alternative, a personal decree for the amount found necessary to be done to make her whole.

And for general relief. In other words as adequate remedy is afforded only by a court of equity by specific performance through the medium of mandatory injunction, or other appropriate order, the remedy at law in damages is wholly inadequate. The remedy at law must be in all respects as adequate and efficient as that in equity, before a party seeking relief in the latter court should be driven therefrom into the former jurisdiction with its more rigid, inflexible, and artificial rules. Of course, the court of chancery has jurisdiction of the subject-matter and can administer relief. This case does not belong to the class of cases of which that court has exclusive jurisdiction, but to the class of cases of which law and equity have concurrent jurisdiction. When jurisdiction is concurrent the test is not one of jurisdiction, but whether a court of chancery should exercise the jurisdiction which it possesses. The test of whether it should do so or not is "whether the legal remedy is, under the circumstances, full, adequate and complete." 1 Pom. Eq. Jur. (3 Ed.), sec. 136 to 142.

We trust, upon a careful consideration of the facts and of the principles involved in this case, the court will agree, 1st, that we have stated the cause of action, and 2nd, that it is one of equitable cognizance.

C. T. Williamson, for appellee.

There is no mutual account between the parties shown and no complications calling for equitable relief. As I understand the law, a bill for an accounting will not be entertained for accounting where the account is not a mutual one and not then unless it is complicated rendering equitable relief necessary. 6 Pomeroy's Equity Jurisprudence (3 Ed.), par. 962 to 935 inclusive; Sec. 556, Code of 1906; Sec. 161, Constitution.

The matters and things with reference to which the appellant desires an accounting are simply items of damage, in no way peculiar and for which damages may be assessed by a jury to the full extent. A contractor, or other intelligent person, with the least experience in building and constructing houses can accurately figure as to the necessary cost of raising the appellant's house to conform to the new grade, together with all the other items of damage complained of. There is not the slightest trouble in recovering full compensation in a court of law, provided the appellant can make out her case, and for all the matters and things complained of in the bill there is a full, complete and adequate remedy at law. When this is true, a chancery court has no jurisdiction of the subject-matter of the litigation, but the party invoking the jurisdiction of the chancery court will be relegated to a court of law. This principle is so thoroughly established, I deem it unnecessary to cite authorities.

The appellant's bill purports to seek specific performance as a relief. I submit that, in order for the chancery court to grant the relief prayed for, appellant must show a contract and such a contract that the court may decree a specific performance thereof. I submit that the bill does not show such a contract. It relies on certain correspondence with J W. Parker, mayor of the city. It does not appear that the mayor had any right or authority to enter into such contract, or any contract whatsoever, binding on the city, even if a formal contract was shown by the bill. All contracts...