Robertson v. F. Goodman Dry Goods Co.

• Decision Date: 02 July 1917
• Docket Number: 19718,19719
• Citation: 76 So. 149,115 Miss. 210
• Court: Mississippi Supreme Court
• Parties: ROBERTSON, REVENUE AGENT, v. F. GOODMAN DRY GOODS COMPANY. SAME v. GREENWOOD LUMBER COMPANY

76 So. 149

115 Miss. 210

ROBERTSON, REVENUE AGENT, v. F. GOODMAN DRY GOODS COMPANY.

SAME v. GREENWOOD LUMBER COMPANY

No. 19719, 19718

Supreme Court of Mississippi

July 2, 1917

APPEAL from the chancery court of Leflore county, HON. JOE MAY Chancellor.

Two suits by Stokes v. Robertson as revenue agent against the F. Goodman Dry Goods Company and Greenwood Lumber Company. From orders sustaining the demurrer to the bills and ordering their transfer to the circuit court, complainant appeals.

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

Decrees affirmed, and causes remanded.

Monroe McClurg, for appellant.

The briefs filed in the case of the revenue agent against The Goodman Dry Goods Company cover the contentions involved in this case. It is taken for granted that both cases will be submitted at the same time either on briefs and oral argument, or, as I am willing, on briefs only.

This cause differs from the Goodman case solely in pointed contention that, even where the bill is a pure declaration in chancery, that court under section 4738 of the 1906 Code ought to take jurisdiction and go right along and determine the case.

Hence this honorable court is respectfully requested to refer to the briefs in the Goodman case in so far as it covers this case, in disposing of this cause.

Whitting & Osborne, for appellee.

The order sustaining the demurrer in this case is not such an interlocutory order as an appeal is provided for under section 35 of the Code of 1906, for the reason that no possession of property is changed, no money is required to be paid, no expense or delay is avoided (but on the contrary expense and delay are increased); nor are any principles of this cause to be settled. It is obvious that there can be no contention that this appeal will lie under section 35, unless it is the contention that the principles of the cause are to be settled thereby; and that there are no principles of the cause to be settled by this appeal is clearly settled by the following authorities: Bierce et al. v. Grant, 91 Miss. 791; Waterworks v. Vicksburg, 79 Miss. 510; Delta & Pine Land Co. v. Adams, 48 So. 190; Clay v. Chickasaw, 63 Miss. 289; Ward v. Whitfield, 64 Miss. 754; Railroad Co. v. Hopson, 73 Miss. 772; Barrier v. Kelly, 81 Miss. 266.

The bill in the case at bar is nothing more or less, in substance and in form than a pure, simple and plain declaration such as would be filed in the circuit court in an action of debt. There is absolutely not a single statement contained in the bill which sets out a ground of equity jurisdiction.

The contentions, upon the strength of which appellant must and does rely, as sustaining his position that the chancery court of Leflore county should have taken jurisdiction of the cause are as follows:

First That the chancery court of Leflore county, should have taken jurisdiction of this cause in order to avoid a multiplicity of suits and,

Second: That the chancery court of Leflore county should have taken jurisdiction of this cause for the reason that section 4738 of the Code of 1896 expressly authorizes the revenue agent to bring a suit in the chancery court in all cases where back taxes are sought to be recovered, even where as in this case, the action is one for debt, which character of debt is given to such back taxes by section 4256 of the Code of 1906; and this regardless of the lack of allegations giving equitable jurisdiction.

The first contention of appellant that the chancery court should have taken jurisdiction of this case in order to avoid a multiplicity of suits is unsound under a principle of law governing the attaching of jurisdiction by the chancery court on the sole grounds of avoiding a multiplicity of suits, which principle is firmly established in this state. This principle, which is also practically universally recognized, received a most luminous exposition in the opinion delivered by Judge CAMPBELL in the case of Tribbett v. Railroad Company hereafter cited; and the reasoning in this case, as well as the conclusion reached therein has been, after some apparently conflicting opinions, finally adopted and approved as the correct doctrine on this subject, obtaining in Mississippi. In the latter opinion rendered by Judge MCLEAN in the case of Cumberland Tel. Co. v. Williamson, 101 Miss. 1, this doctrine in its entirety, as enunciated in the Tribbett case was, after exhaustive consideration, fully approved and the principle was firmly established that jurisdiction of the chancery court would not attach on the sole ground of avoiding a multiplicity of suits unless each of such suits, was of itself, and itself, alone, such a suit as a court of equity would take jurisdiction of. Tribbette v. Railroad Co., 70 Miss. 182.

The second contention of the appellant is that the chancery court should have taken jurisdiction of this case, even though there are no grounds of equitable jurisdiction alleged in the bill, because section 4738 expressly gave jurisdiction to the chancery court in all cases "without reference to equities" assuming, for the sake of argument that the legislature had (quoting from brief of appellant): "the power to confer jurisdiction on the chancery court, and that without reference to equities." It is perfectly obvious from a mere examination of its language, without reference to anything extrinsic, that section 4738 affords absolutely no support for the position that the legislature did thereby invest the revenue agent with the right to bring an action at common law in the chancery court in utter disregard of the lack of equitable grounds. The plain language of the statute is that the revenue agent, "shall have a right of action and may sue, at law, or in equity, in all such cases where the state, counties, municipalities, or levee boards have a right of action or may sue." This language is plain, simple and unambiguous, and is susceptible of but one construction, to-wit: that, if the state, county, municipality or levee board could itself bring suit in the chancery court, the revenue agent could bring that same suit in the chancery court; but if the state, county, municipality or levee board could not bring a suit in the chancery court because of lack of equitable grounds, then, the revenue agent could not bring the same suit in the chancery court, and for the same reason. Section 4738 could have no other meaning, and could bear no other construction, and so we say that the court below rightly decided it had no jurisdiction of the case at bar by reason of section 4738; for the court would have no jurisdiction of this suit had it been brought by the state or levee board, and in inevitable sequence, it follows that, under the language quoted from said section, the court had no jurisdiction of this suit brought by the revenue agent.

But in paragraph 2 of counsel's brief he states, regarding court, "it shall transfer all cases brought within it to the circuit court, whereof the circuit court has exclusive jurisdiction, but that constitutional direction is not absolute" and cites many cases to sustain this assertion, as if the assertion, were it sustained thereby, would bolster up his case. We wholly fail to perceive how any of these cases could be conceived to uphold the contention that the chancellor erred in refusing to entertain jurisdiction in transferring this case to the circuit court. Had the demurrer in this cause been overruled and appellee was now in this court as appellant, the aid of these cases could have been invoked by him, with deadly effect, but occupying the position he does, the appellant, in citing these cases, is assuredly "hoist on his own petard," since the writers of these opinions reprobated the action of the various chancellors for doing the very thing appellant says here the court below should have done. With a special note of regret did Judge WOODS in the case of Cazeneuve et al. v. Currell, 70 Miss. 521, lament the inability of the supreme court under section 147 of the Constitution, to make a corrective decision of the error frequently committed by chancellors in assuming jurisdiction of actions purely legal in their nature as distinguished from equitable.

Counsel for appellant is even more unfortunate in invoking the assistance of the case of Murphy v. City of Meridian, 103 Miss. 110, since that case in construing section 162 of the constitution reverses the action of the lower court in sustaining a demurrer to a bill filed therein, over which the circuit court had exclusive jurisdiction, for the reason that the court failed to do the identical thing which was done by the court below, in the case at bar, viz.: transfer the case from the chancery court to the circuit court upon the sustaining of the demurrer to the bill.

Gardner, McBee & Gardner, for interested parties.

We respectfully submit that an appeal does not lie from such a decree as was rendered in this case. There is no final judgment, nor is there any decree rendered by which the principles of the case on appeal may be determined.

Section 35 of the Mississippi Code of 1966, permits appeals from any interlocutory order whereby money is required to be paid, or the possession of property changed or . . . in order to settle the principles of the cause, or to avoid expense and delay.

No money is required to be paid; the possession of no property is changed; the principles of the case are not settled; and expense and delay is incurred, rather than avoided.

This section has been held to contemplate: "Appeal only in the cases mentioned specifically, or when the principles of the cause are so involved in the rulings made by the chancellor that it will be a gain to all to have them promptly passed upon by the appellate court or where an appeal will...