Slattery v. P.L. Renoudet Lumber Co., Ltd.

• Decision Date: 18 April 1921
• Docket Number: 21724
• Citation: 125 Miss. 229,87 So. 888
• Court: Mississippi Supreme Court
• Parties: SLATTERY v. P. L. RENOUDET LUMBER CO., LIMITED

87 So. 888

125 Miss. 229

SLATTERY v. P. L. RENOUDET LUMBER CO., LIMITED

No. 21724

Supreme Court of Mississippi

April 18, 1921

APPEAL from chancery court of Adams county, HON. R. W. CUTRER Chancellor.

Action by Edward L. Slattery against the Southwestern Lumber & Box Company, with the P. L. Renoudet Lumber Company, Limited, as garnishee. From orders overruling certain motions, and a decree discharging the garnishee and canceling a notice of lis pendens, plaintiff appeals. Affirmed.

See also, 120 Miss. 621, 82 So. 332.

Judgment affirmed.

A. H Geisenberger and Martin & Byrnes, for appellant.

It appears tat this suit was filed, and attachments levied and lis pendens notices filed in both Adams and Wilkinson counties, before the deed from Southwestern Lumber & Box Company to Renoudet Company was recorded in either of said counties.

In this condition of affairs the question is whether the court lost jurisdiction to proceed further with the case when it appeared that, as to Adams county lands, the deed to Waddell-Williams Company, had been executed after filing of the suit, but before levy of the attachment, on Adams county lands, but that said levy had been made before the deed had been placed of record.

The statute governing the venue of suits in the chancery court is section 561, Code 1906, and we take it that an attachment suit in chancery is governed by that part of this section that reads as, follows: "Other suits respecting real or personal property may be brought in the chancery court of the county in which the property, or some portion thereof, may be."

When this suit was brought there was nothing of record in either Adams or Wilkinson county to show any change of ownership from the Southwestern Lumber & Box Company, to any one else. When the attachment was levied in both counties the record was still barren of any conveyance from Southwestern Lumber Company to any one. Now, appellant was bringing his suit against Southwestern Lumber & Box Company by attachment against its real estate; that real estate consisted, to all appearances and actually of lands in both Adams and Wilkinson counties. Appellant could have filed his suit in either of these counties and been strictly within the terms of section 561, supra. He selected Adams county as the one in which to file suit. Is it possible that because the sheriff of Adams county failed to promptly levy his attachment writ so that the Southwestern Lumber Company had executed its deeds to Renoudet Company before the levy, therefore all jurisdiction of the chancery court was lost. Is this possible when we consider that had the appellant by chance selected the Wilkinson county court as the forum, and the same facts had taken place as actually occurred, there could be no doubt that the court could go ahead with the case at least so far as the lands in Wilkinson county were concerned.

We submit that such is not the law; that the jurisdiction in such case is not such as may be ousted after suit filed by a mere chance, but is fixed by the condition existing at the time the suit is filed; that if, at that time, the court had jurisdiction, it would not lose it by reason of anything occurring thereafter; though it might lose the power to act against some special property by reason of said occurrence. Our argument here is that inasmuch as there were lands belonging to the Southwestern Company in both counties at time of suit the jurisdiction of either court would attach and could not be destroyed by anything occurring subsequent thereto, so long as any property remained subject to the attachment levy. In this case, granting there was no error in the court's order discharging the attachment as to Adams county lands, there yet remained subject to the lien of the attachment all the Wilkinson county lands, so that the jurisdiction of the court remained perfect. If, however, the case was that it appeared from the record that the lands in both Adams and Wilkinson counties had been sold and conveyed before the levy of attachments therein, a different result might follow and the decree of the court appealed from would have a better foundation.

Furthermore we submit to the court that, under sections 2787 and 2788 of Code of 1906, these lands, both in Adams and Wilkinson counties, were held by the attachments levied upon them. Upon the levy of the attachment the attaching creditor, Slattery, acquired a lien upon all the lands, and was protected by the above quoted sections. If so, so far as this suit is concerned, the sale and conveyance to Renoudet Lumber Company was as though it had never been made; the recordation of the deed came too late to affect the attaching creditor, who had levied in both counties before record of the deed in either. Appellant certainly could not have been held at the time he sued out his attachment suit and filed his bill, as having any notice of the deed to Renoudet Company, for the sufficient reason that the deed was not then executed. Could he be placed in a different position afterwards by reason of failure of the sheriff of Adams county to promptly levy the attachment writ in his hands? We say not. The truth is that while appellant feared, and had reason to fear, that Southwestern Lumber Company might, to defeat his claim for commission, convey all the lands either to Renoudet Lumber Company or to some other concern, and for that reason he attached, yet he had no notice of any actual, existing conveyance, either when he brought his suit or until after the deed was actually filed for record. The fact that there was a probability, or possibility, that such conveyance would be made did not put him on notice; we submit that an examination of the authorities on the point will show that the doctrine of notice applies only as to conveyances actually in existence, and not as to those that may later come into existence.

Upon the record we respectfully ask the court to reverse and remand so that its former decision in this case may be made operative and appellant may have an opportunity to establish his legal rights in the premises; and we also ask that, in remanding the court will so shape its decree as to prevent any further side blows from persons, or corporations, not parties, by indicating that such strangers to the record have no standing to enter their appearance herein, so the lower court may exclude them hereafter.

Ratcliff & Kennedy, for appellee.

The court will please observe that this case is an attempt by the appellant to collect his commission from the purchaser of the lands, the Renoudet Lumber Company, when his bill of complaint alleges that he was employed by the grantor, the Southwestern Lumber & Box Company and that it alone is indebted to him for the commission. The original bill of complaint sought no relief against the Renoudet Lumber Company except for it to answer whether or not it was indebted, and to give information as to the interest of said Box Company in said lands.

We submit to the court that a broker, representing the owner of lands, cannot negotiate a sale and thereafter collect his commissions at the expense of the grantee whom he induced to buy.

The fourth assignment of error is: "That the court erred in sustaining the motion of Waddell-Williams Lumber Company and rendering a decree thereon discharging the attachment and cancelling the notice of the lis pendens as to the lands in Wilkinson county levied on in this suit."

This assignment of error is the only one, in our opinion, that is pertinent to the issue involved in the lower court, and that is properly assignable against the decree appealed from. It is the only assignment by appellant that is a direct attack upon the decree complained of. The decree herein appealed from was rendered on the third day of August, 1920, and at the July term of the chancery court of Adams county, and at that particular time the status of the case was as follows:

"The bill of complaint was pending against the Southwestern Company, a non-resident, upon whom process had not been had except by publication. There was also pending an amendment to this original bill, making the Southwestern Lumber & Box Company and the P. L. Renoudet Lumber Company defendants thereto. Process had been issued to the sheriff of Adams county and returned that the principal defendant had not been found and under diligent search and inquiry . . . Attachment had been issued to the sheriff of Adams county, and levied upon certain lands in Adams county, but at the January term theretofore, the writ had been quashed and the lands released from the levy and adjudicated to be lands of P. L. Renoudet Lumber Company. An alias writ of attachment had been issued to the sheriff of Wilkinson county and a return made thereon showing a levy upon the lands in Wilkinson county.

It is therefore apparent that the bill and amended bill was pending in the chancery court of Adams county Mississippi, without personal process upon the principal defendant, without jurisdiction of a garnishee debtor, and without an attachment of any property within Adams county as the property of principal defendant, the attachment as to the Adams county lands having been released by an order of the court at a former term thereof, and without objection from this appellant, and we therefore submit that the chancery court of Adams county was without jurisdiction to enter a decree as to the lands in Wilkinson county, Mississippi, said lands being the only property then before the court by way of attachment. Upon this proposition the authorities are unanimous.

Under section 561 of the Code of 1906: "Other suits respecting real or personal property may be brought in the chancery court of the county in which the property or some portion thereof may be."

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