Sullivan v. Calvin
| Decision Date | 20 May 1935 |
| Docket Number | 31741 |
| Citation | 173 Miss. 80,161 So. 677 |
| Court | Mississippi Supreme Court |
| Parties | SULLIVAN v. CALVIN et al |
Where association holding deed of trust was placed in receivership and chancery court, which appointed receiver authorized trustee to foreclose, chancery court of another county could not entertain bill for injunction for moratorium bearing without complainants' obtaining consent of court which appointed receiver (Laws 1934, chapter 2474
HON BEN STEVENS, Chancellor.
APPEAL from the chancery court of Pearl River county, HON. BEN STEVENS, Chancellor.
Suit by J. B. Calvin and wife against C. W. Sullivan trustee. Judgment for plaintiffs, and defendant appeals. Reversed, and cause dismissed.
Reversed and dismissed.
Sullivan & Sullivan, of Hattiesburg, for appellant.
An answer was not filed for the reason that no process was had on the Building & Loan Association or on the receiver, and for the further reason that if appellant is correct in his position, that the chancery court of Pearl River county does not have the authority to hear and determine this cause without permission to sue or enjoin having first been granted appellees, an answer by the appellant would have been a useless expense, a waste of time and vain. Therefore, appellant adopted the procedure as outlined in section 344, page 349 of the Mississippi Chancery Practice, by Griffith.
The question narrows itself down simply to whether or not the receiver is a necessary party to this litigation. If he is a necessary party to the litigation, then, the motion of appellant should have been sustained and the bill dismissed.
In the case of a deed of trust both the trustee and the beneficiary must be joined; and in general, all persons claiming an interest in the property must be made parties in order to bind them by the decree.
41 C. J., par. 1361; Byrd v. Hicks et al., 113 S.E. 660; Burroughs v. Jones et al., 28 So. 944; Smith v. Denny & Co., 90 Miss. 434, 43 So. 479; Griffith's Equity, par. 150; Champlin et al. v. McLeod et al., 53 Miss. 484; Yates v. Council, 102 So. 176.
In the case at bar no one but the trustee was enjoined from proceeding with this foreclosure.
32 C. J. 301, par. 487.
J. M. Morse, of Poplarville, for appellees.
We admit that without chapter 247 of the Acts of 1934, W. O. Rea should be joined as a party defendant and that in ordinary cases the failure to join could be made in a motion, and unless he was so joined after time was granted, that the bill could and should be dismissed. However, our construction of chapter 247 of the Laws of 1934, is that it is optional with the complainants as to whether the legal holder of the note, to-wit, the receiver, be joined, for this act of the Legislature, as an emergency one, and the Legislature, after setting out the depressed condition of the country, the financial obligation of its citizens that they could not meet. Under its police power the state declared a state of emergency to exist and the act especially brings it within the police powers of the state, and the state of Mississippi, by this act, is acting as a policeman in extending its strong arm to its distressed citizens.
Paragraph 2 of the act contemplates judicial sales, and even if our friend's contention is correct that both he and Rea are mere officers of the court, then it amounts, in substance, to a judicial sale and even judicial sales are taken care of in this act.
Paragraph 7 especially gives to this court equitable jurisdiction, or shows that the situation which is now before the court was possibly contemplated by the legislators.
Section 11 took care of the very situation which is now before the court. The Legislature wanted the bill to be enforced as written, and the bill as written permits you to enjoin the trustee only if you so desire.
However, if we are mistaken in all our contentions then the bill should not be dismissed, the appeal is simply from an interlocutory order, and the bill should be remanded with the direction that W. O. Rea, receiver, be made a party to the suit, and the cause proceeded with.
J. B. Calvin and wife, appellees, filed a bill in the chancery court of Pearl River county, Mississippi, to enjoin C. W. Sullivan, trustee, from foreclosing a deed of trust in favor of the Building & Loan Association of Jackson, given by appellees.
The bill did not allege that the Building & Loan Association of Jackson was in...
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...leave of the court which appointed him. We reiterated this holding in Sullivan v. Hughes, 172 Miss. 744, 161 So. 316, and Sullivan v. Calvin, 173 Miss. 80, 161 So. 677. I mention this because of possible error that affirming that decree might have, without proper reservation of the rights o......
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Rea v. Stinson
...v. Hughes et al., 172 Miss. 744, 161 So. 316. On May 20, 1935, the matter was again before this court in the case of Sullivan v. Calvin, 173 Miss. 80, 161 So. 677, and the court held that where an association holding a of trust was placed in receivership, and the chancery court which appoin......