People's Bank In Liquidation v. Pennington

• Citation: 102 So. 386,137 Miss. 653
• Decision Date: 03 January 1925
• Docket Number: 24479
• Parties: PEOPLE'S BANK IN LIQUIDATION et al. v. PENNINGTON. [*]
• Court: United States State Supreme Court of Mississippi

102 So. 386

137 Miss. 653

PEOPLE'S BANK IN LIQUIDATION et al. v. PENNINGTON. ^[*]

No. 24479

Supreme Court of Mississippi

January 3, 1925

Division B

APPEAL from chancery court, Tallahatchie county, HON. C. L. LOMAX Chancellor.

Bill by the People's Bank in Liquidation and others against Ben T. Pennington. From order denying their motions to dismiss bill, complainants appeal. Reversed in part and affirmed in part.

Reversed in part, and affirmed in part. Suggestion of error sustained in part and cause affirmed.

Hays, Stingily & Whitten, for appellants.

The question for determination on this appeal is: Had the complainant the right to dismiss the suit, or had the chancellor discretion in the matter? "It seems to be argued that the chancellor is vested with discretionary powers when he is called upon to consider an application of complainant to discontinue his action. We are unable to indorse this view of the law. Section 802, Code of 1906 gives to every plaintiff the absolute right, 'To suffer a non-suit,' if he elects to do so, 'before the jury retire to consider its verdict.' This section of the Code is found in chapter 20, Circuit Courts, section 687. The right of a complainant to dismiss the bill without prejudice to discontinue his suit, or to suffer a non-suit, are 'not restricted by their nature or by expressed provision to particular courts.'" Adams v. Commercial Co., 113 Miss. 608.

In Northern v. Scruggs, 118 Miss. 353, the court in nowise attempted to change the express rule laid down by statute, but said only, that, where by the filing of the bill, the defendant had acquired a valuable right against the complainant, the complainant had no absolute right to dismiss. In addition there was in that case the right of minors to be protected. There are, too, here rights of minors to be protected, but these rights are against the defendant. In this case the defendant, Pennington, certainly has acquired no greater right as against the complainant bank than to have entered a decree dismissing the bill. The bank's bill which is to be dismissed admits nothing of advantage to the defendant Pennington. Its filing gives him no right he would not have if the bill had not been filed. The only advantage he could acquire in the matter, in so far as the bank is concerned, in this particular controversy now before the court, is solely between him and the bank. The dismissal of the bill accomplishes that.

Rights referred to are rights of property, not purely adjective rights. In this case the defendant, Pennington loses no right, but, on the other hand, gets rid of an adversary. And, as between himself and the complainant bank, gains all he ever had to gain. But they say, 'If the People's Bank is allowed to withdraw, Pennington cannot testify against the estate of H. R. Jenkins, deceased.' That is a bridge to be crossed when we get to it. The admission of testimony in another hearing of this cause, will be governed by section 1577, Hemingway's Code, if the question arises. The complainant, People's Bank and defendant, Ben Pennington, as to the right of either against the other, are not affected thereby. The only parties to be affected are, in so far as the original bill is concerned, Ben Pennington and his co-defendants, the heirs at law of H. R. Jenkins, deceased. Certainly the "right" referred to in the exception is not a right, adjective or substantive, against a third party, a co-defendant or any one else except the complainant. What right, then, has the defendant, Pennington, to lose from the exercise by the complainant of a statutory right?

There is nothing in this case to make it even remotely analogous to the Scruggs case, much less parallel, and the court we submit, went far enough in that case.

Wells, Stevens & Jones and H. C. Mounger, for appellee.

This is the second appearance of this cause. The court will remember that there were three deeds of trust executed by H. R. Jenkins and his wife, Elizabeth Jenkins, on the plantation involved in this suit. Pennington held the first deed of trust to secure an indebtedness of forty-five thousand dollars, the same being the consideration due Pennington under his deed of conveyance to J. W. Cutrer and A. H. Stephens. The People's Bank held a second deed of trust to secure an indebtedness to the Bank of twenty thousand dollars. J. W. and G. C. Jenkins held a third deed of trust to indemnify them as sureties for their father, H. R. Jenkins. The case was originally tried on original bill, answer of H. R. and Elizabeth Jenkins, answer and cross-bill of Pennington, and answer to said cross bill, and proof developed on the first trial of this case. On appeal to this court the decree of the chancellor was reversed and in an OPINION en banc, Pennington was held to have a first lien as contended for him in his answer and Cross-bill, the People's Bank was adjudged to hold a second lien, while J. W. and G. C. Jenkins, as sureties, came third.

There was only one question which this court did not determine on the first appeal, and that was whether Pennington's note, under the evidence, matured in 1921 or was to mature in 1926.

The opinion on the first appeal was on the pleadings and proof, or, in other words, after a final submission of the case both to the lower court and to this court on appeal. Presumably all evidence which either party to this litigation could introduce, had been introduced at the final trial of the case. The court heard all the evidence and considered all of the law. The opinion of the court reversing and remanding the case conclusively shows that this court reached two important results on the whole record. First, that Pennington had not altered his trust deed for forty-five thousand dollars, and, secondly, that this valid trust deed was a first lien and had priority over the deed of trust to the People's Bank and the indemnifying deed of trust in favor of J. W. and G. C. Jenkins. The only purpose for remanding the case for further proceedings was to give the learned chancellor the right to do that which it had not become necessary for him to do, to-wit: Determine the due date or maturity of Pennington's note and trust deed. After the cause had been remanded, H. R. Jenkins, the principal maker on the promissory notes and trust deeds and an original defendant in the cause, died intestate, leaving his wife and his children and several grandchildren as his heirs-at-law. There was an application to revive the case against the heirs-at-law of H. R. Jenkins, both upon the original bill and upon the cross-bill of Pennington.

The cross-bill of the Jenkins family was interposed by J. A. May, guardian ad litem, for the minors, and by solicitors for all of the heirs of H. R. Jenkins, deceased, but the prayer of the cross-bill is purely defensive, and in fact is not a cross action at all. There was a motion by Pennington to strike this cross-bill from the file. The causes for the motion are set out. This motion was, by the court, overruled.

The record shows a consistent and strenuous effort on the part of both the Bank and every member of the Jenkins family to get from under the prior decision in this case, and to shift the burden of proof to Pennington, and to that end to dismiss this whole case out of court and leave the Jenkins family in possession of the plantation, and force Pennington to file a new suit, and be embarrassed in the prosecution of it on account of the death of H. R. Jenkins. We demanded a trial on the merits, and objected to an appeal, but after the court granted appellants an appeal we thought the equities of the case justified a cross appeal on behalf of Pennington, complaining of the ruling of the court in refusing to strike the cross-bill of the Jenkins heirs, in holding that this case was to be tried anew, unaffected by any law of the case, in overruling the counter-motion of appellee for a final decree against appellants on the original pleadings, and the record, and the opinion of this court, except as to the one issue of fact for the trial of which the case was originally remanded by this court, and the ruling of the court permitting the heirs-at-law of H. R. Jenkins, deceased, to amend their answer and cross-bill, and in refusing to make a final disposition of this cause, and likewise the ruling of the court in overruling the motion of appellee to appoint a receiver to take charge of the property pending appeal. See cross-assignment of errors on file in this case.

The case was remanded for trial as to one, and only one, issue of fact. The court should have proceeded to a determination of that issue. The attention of the court was diverted from the single issue in the case on account of the unfortunate death of H. R. Jenkins, and the so-called bills of revivor. The only purpose, and the only justification, for filing any new pleadings whatever was to revive the suit. The supreme court had decided that the bank's trust deed was subordinate to Pennington's. It has, also, decided that the letter written by the bank's own cashier was binding and conclusive on the bank. Pennington is reminded to "beware of Greeks bearing gifts," and when all of the original complainants come in and offer to dismiss their suit Pennington might have been overwhelmed with this display of generosity were he not reminded of some of the technical difficulties in the way, and the fact that if this case is dismissed altogether he is left out of possession, with no opportunity to claim in this suit compensation for the use and occupation of the lands pending litigation, and that all of the parties would be left in the same attitude as if the case had not been filed, and furthermore he would lose the victory which he has won, and be embarrassed in several ways in the...