Thompson v. Wilson

• Citation: 172 Miss. 766,160 So. 388,161 So. 153
• Decision Date: 06 May 1935
• Docket Number: 31679
• Court: Mississippi Supreme Court
• Parties: THOMPSON et al. v. WILSON et al

160 So. 388

161 So. 153, 172 Miss. 766

THOMPSON et al. v. WILSON et al

No. 31679

Supreme Court of Mississippi

May 6, 1935

Division B

April 8, 1935

Suggestion Of Error Overruled June 3, 1935.

APPEAL from the chancery court of Leflore county HON. R. E. JACKSON Chancellor.

Suit by G. A. Wilson and others against L. K. Thompson, trustee, and another. From the decree, L. K. Thompson, trustee, and another appealed, giving a cost bond alone, and also appealed therefrom giving a supersedeas bond. On motion to consolidate the appeals. Motion sustained. Affirmed on merits.

Affirmed.

Green Green & Jackson, of Jackson, Herbert Gannaway, of Memphis, Tenn., and Shands, Elmore, Hallam & Causey, of Cleveland, for appellants.

The decree of December 27th was interlocutory, not final.

Butler v. Furr, 152 So. 278, 168 Miss. 884; Levy v. Russell, 33 So. 651, 82 Miss. 68; Sowell v. Sowell, 101 Miss. 623, 57 So. 626; Sweatman v. Dean, 86 Miss. 641, 38 So. 231; Beeks v. Rye, 27 So. 636, 77 Miss. 358; Sections 13 and 14, Code of 1930; Griffith's Chancery Practice, page 683; Comans v. Tapley, 101 Miss. 219, 57 So. 567.

If appellant had appealed without obtaining an order as from a final decree and had misjudged, then upon motion this appeal would have been dismissed if this court conceived the decree to be interlocutory. On the contrary, if it appealed as from a final decree and this court determined that the decree was interlocutory, it would have been forthwith dismissed. So that confronted by the complexities and having the vital interests of its client in mind, the path of security required that the two bonds be given and two appeals be had, so that with safety the rights might be preserved and that now asked is merely that the supersedeas be made operative in both aspects due to the enormous cost of a bond of this kind. Thereto we can see no sufficient reason why it should not be done.

Pending the appeal, with the executors in possession of the stock released from the lien with the right of disposition specifically vouchsafed, appellants' rights are imperiled.

Sections 13 and 14, Code of 1930; Griffith's Chancery Practice, sec. 690, page 812; Belzoni Land Co. v. Robertson, 87 So. 671, 125 Miss. 338; 3 Bouvier's Law Dictionary; 3 C. J. 1315.

Notwithstanding the supersedeas herein granted, there has been created this preferred stock to the extent of two hundred fifty thousand dollars, thereby to that extent depreciating the value of the common stock and the aliquot portion of this preferred stock has not been delivered to the trustee expressly appointed by the instrument for its custody. The result will be that if appellant is successful, that no profit will to it come from having a decree rendered in this court in its favor for the subject-matter of the litigation may thus have been disposed of pending the appeal.

The chancellor improperly released to the executors six hundred fifteen shares of Greenwood Stock.

58 C. J. 1161; Section 3442, Code of 1930; 15 U.S.C. A., sec. 18, Clayton Act; Allendale Heights v. Eyrich, 125 So. 706; Calumet Co. v. Oil City Corp., 154 So. 141; Union & Planters' Bank & Tr. Co. v. Corley, 133 So. 238, 161 Miss. 282; Alabama Water Co. v. Anniston, 151 So. 461; Swalm v. Gill, 118 So. 446, 151 Miss. 630; Hester v. Hooker, 7 S. & M. 768; Fowler v. Nunnery, 89 So. 156, 126 Miss. 510; Chambers v. Davis, 91 So. 346, 128 Miss. 613, 22 A.L.R. 114; Ellman v. Herndon, 71 Miss. 823, 15 So. 135; Beaver v. Crump, 76 Miss. 34, 23 So. 432; Atkinson v. Whitney, 7 So. 646, 67 Miss. 655; Daniel v. Frazer, 40 Miss. 507; Yazoo, etc., R. R. Co. v. Payne, 93 Miss. 50, 46 So. 405; Johnson v. Jackson, 27 Miss. 498; Wilburn v. Bishop, 62 Miss. 341; Marqueze v. Caldwell, 48 Miss. 23; Sims v. Lumber Co., 96 Miss. 449, 51 So. 459; Lewis v. Woods, 4 How. 86, 34 Am. Dec. 110; McCorkle v. Brannon, 9 S. & M. 167.

A bill by a vendor for specific performance will not be maintained unless there has been an offer to perform on the part of complainant.

McAlister v. Moye, 30 Miss. 258; Eckford v. Halbert, 30 Miss. 273; Klyce v. Boyles, 37 Miss. 524; Moon v. Wilkerson, 47 Miss. 633; Byrd v. McLaurin, 4 S. & M. 50; Stewart v. Railroad Co., 7 S. & M. 568.

The bond herein filed for two hundred one thousand dollars complies with the statute.

Property is under judicial custody and no bond requisite for supersedeas appeal, save insofar as damages and costs were concerned.

Aetna Ins. Co. v. Robinson, 90 So. 120, 127 Miss. 440; White v. Williams, 132 So. 573, 159 Miss. 732, 76 A.L.R. 755; White v. Miller, 133 So. 146, 160 Miss. 734; Gully v. Jackson International Co., 145 So. 905, 165 Miss. 103.

Under the statute the fixation of the amount of the bond, even if as at double the value, is proper.

Dayton Power & Light Co. v. Commission, 292 U.S. 290, 78 L.Ed. 1267; Humphreys County v. Cashin, 90 So. 888, 892, 120 Miss. 236; Brown v. Franklin, 145 So. 792, 166 Miss. 899; Johnson v. Howard, 141 So. 573, 167 Miss. 475.

Admitting initially, for argument's sake, right to release at all, the chancellor erred thereasto: (a) because he disregarded accrued interest; (b) because he completely ignored potential interest accruals; (c) utilization of inventory valuation of 1930 not competent basis for exercise of right; (d) requirement of proportional release ignored.

Bank v. Noel, 92 Mich. 348, 52 N.W. 727; 1 Jones on Mortgages (3 Ed.), 92.

There was no real disagreement between the parties as to the release, but only an unauthorized cancellation of individual responsibility sought to be exacted by the appellee.

Dayton Power & Light Co. v. Commission, 292 U.S. 290, 78 L.Ed. 1267.

The chancellor denied fundamental rights in directing the residue after sale to be paid to the heirs, instead of being applied upon the debts.

1 Jones on Mortgages (7 Ed.), sec. 79; Marine Nat. Exch. Bank v. Kalt-Zimmers Mfg. Co., 79 L.Ed. 210; Chrisman v. Hay, 43 F. 555; 2 Jones on Mortgages (7 Ed.), sec. 981; Reed v. Jones, 133 Mass. 116, 121; Muren v. Southern Coal & Mining Co., 160 S.W. 835, 836; Noble v. European Lfg. & Inv. Corp., 165 A. 157, 159; Fleming v. Fairmount R. R., 49 L.R.A. (N.S.) 155, 79 S.E. 826; Tanner v. Hicks, 4 S. & M. 294; Lindsey v. Bates, 42 Miss. 395; Cabbert v. Wallace, 66 Miss. 618, 5 So. 394.

Assuming parties entitled to release, the release granted is not in accordance therewith, with the power.

The debt is not well secured.

1 B. T. A. 882; Robinson v. McShane, 140 So. 726, 166 Miss. 623; 14 C. J. 850; Fletcher on Corporations, sec. 5382.

Appellees being in default as to principal and interest, not entitled to insist upon a specific performance of the covenant as to release.

58 C. J. 1161; Allendale Heights v. Eyrich, 125 So. 706; Calumet Co. v. Oil City Corp., 154 So. 141; Union & Planters' Bank & Tr. Co. v. Corley, 133 So. 238, 161 Miss. 282; Alabama Water Co. v. Anniston, 151 So. 461; Swalm v. Gill, 118 So. 446, 151 Miss. 630.

This contract is not susceptible of specific performance.

Hester v. Hooker, 7 S. & M. 768; Fowler v. Nunnery, 89 So. 156, 126 Miss. 510; Chambers v. Davis, 91 So. 346, 128 Miss. 613, 22 A.L.R. 114; Atkinson v. Whitney, 7 So. 646, 67 Miss. 655; Daniel v. Frazer, 40 Miss. 507; Yazoo, etc., R. Co. v. Payne, 93 Miss. 50, 46 So. 405; Johnson v. Jackson, 27 Miss. 498; Wilburn v. Bishop, 62 Miss. 341; Marqueze v. Caldwell, 48 Miss. 23; Sims v. Lumber Co., 96 Miss. 449, 51 So. 459; Lewis v. Woods, 4 How. 86, 34 Am. Dec. 110; McCorkle v. Brannon, 9 S. & M. 167; McAlister v. Moye, 30 Miss. 258; Eckford v. Halbert, 30 Miss. 273; Klyce v. Boyles, 37 Miss. 524; Moon v. Wilkerson, 47 Miss. 633; Byrd v. McLaurin, 4 S. & M. 50; Stewart v. Railroad Co., 7 S. & M. 568.

The chancellor erred in refusing appellants' request for a construction of the so-called private agreement and refusing to decide whether appellants should be bound thereby and to what extent.

The court erred in not specifically directing that any amounts paid by the executors upon the twelve thousand dollars judgment rendered in favor of Mrs. Yandell should be applied upon her past due indebtedness due appellants.

Alfred Stoner, of Greenwood, for appellee.

We submit that the chancellor did not reserve the right to alter or modify the decree at some future time, but the decree itself was final and ordered execution. The decree was not to proceed to final decision after entering the decree, but the decree was final within itself.

Torrence v. Kerr, 27 Miss. 786; Gilleylen v. Martin, 19 So. 482, 73 Miss. 700; Griffith's Chancery Practice, secs. 610, 611.

In the case at bar the court did all that it was to do, it released the stock and ordered execution.

McDonald v. McDonald, 68 Miss. 689, 9 So. 896; Carter v. Kimbrough, 122 Miss. 543, 84 So. 251; Ledyland v. Henderson, 46 Miss. 260; Cromwell v. Kraft, 47 Miss. 44.

Section 14 of the Code of 1930 does not authorize any chancellor or judge to fix the bond at less than double the value of the property in controversy.

We submit that insofar as the penalty of the bond is concerned, even though the decree be considered as interlocutory, the bond must be double.

Section 29, Code of 1930.

A supersedeas suspends the efficacy of a judgment, but does not, like a reversal, annul the judgment itself.

60 C. J. 1161.

Insofar as the motion is concerned, this court cannot know whether the rights of innocent third parties intervened or not after the stock was delivered on execution. Really, the motion and brief indicate that the rights of innocent third parties have intervened and just how counsel conclude that this court would be authorized to undo rights acquired by innocent third parties prior to the filing of a supersedeas, we are unable to understand. Even if no such rights have...