Wenger v. First Nat. Bank of Biloxi

• Decision Date: 25 November 1935
• Docket Number: 31934
• Citation: 174 Miss. 311,164 So. 229
• Court: Mississippi Supreme Court
• Parties: WENGER et al. v. FIRST NAT. BANK OF BILOXI

164 So. 229

174 Miss. 311

WENGER et al. v. FIRST NAT. BANK OF BILOXI

No. 31934

Supreme Court of Mississippi

November 25, 1935

Division B

Suggestion Of Error Overruled January 13, 1936.

APPEAL from the circuit court of Harrison county HON. W. A. WHITE Judge.

Proceeding by R. B. Wenger against the First National Bank of Biloxi wherein others intervened. From a judgment of the circuit court affirming a judgment of the county court for defendant, plaintiff and interveners appeal. Affirmed.

Affirmed.

Doty & Johnston, of Gulfport, and Biloxi, for appellants.

This suit was commenced under the provisions of section 2262 of the Mississippi Code of 1930, providing "and the suit shall be commenced by petition." The laborers who worked under and with the original petitioner were made defendants to the original suit, along with appellee, under the provisions of section 2263 of the Code of 1930.

The county court had jurisdiction of the demand of original petitioner.

The jurisdiction of a court is determined by the amount in controversy at the time when the court is first called on to exercise jurisdiction, which in a trial court is the amount claimed at the time when the suit is instituted.

Mobile, etc., R. Co. v. Hitt, 99 Miss. 679, 55 So. 484; May v. Williams, 61 Miss. 125, 48 Am. Rep. 80; 15 C. J., sec. 64, pages 768, 769, 770; Delmas v. Morrison, 61 Miss. 314; Paris Mercantile Co. v. Hunter, 74 Ark. 615, 86 S.W. 808.

With respect to inferior courts it has been held that such a court has jurisdiction of an action on several demands, each within the jurisdictional amount, although the total of the demands exceeds the juridiction of the court.

15 C. J., pages 760, 769, 770; Schneider v. Fairmon, 194 S.W. 251; Keystone Min. Co. v. Gallagher, 5 Colo. 23; Fries v. Wiser, 62 Pa.Super. 218.

The parties named as defendants in the original petition were authorized to propound their claims.

Sections 2263 and 2265, Code of 1930.

The statute of jeofails cures defects in the pleadings and defects in the proceedings.

Grubbs v. Collins, 54 Miss. 485; Trustees v. Gilman, 55 Miss. 148; Noble v. Terrell, 64 Miss. 830, 2 So. 14; Anderson v. Daniel, 136 Miss. 456, 101 So. 498.

The lien given by the statute to mechanics and materialmen is but a cumulative remedy to enforce their respective contracts, and independently of the lien such parties may resort to the ordinary common-law remedies to enforce their contracts, as by action to recover personal judgment.

27 Cyc., Mechanics' Liens, pages 318-20; Keystone Mining Co. v. Gallagher, 5 Colo. 23.

With respect to inferior courts it has been held that such a court has jurisdiction of an action on several demands, each within the jurisdictional amount, although the total of the demands exceeds the jurisdiction of the court.

15 C. J., sec. 64, pages 768-70; Schneider v. Fairmon, 194 S.W. 251; Keystone Mining Co. v. Gallagher, 5 Colo. 23; Fries v. Wiser, 62 Pa.Super. 218; Ehlers v. Elder, 51 Miss. 495; Miller v. Carlisle, 127 Cal. 279; Tian v. Lloyd, 21 Tex. Civ. App. 433, 52 S.W. 982; Duff v. Snider, 54 Miss. 245; Williams & Williams v. Warren, 99 So. 269; Bohannon v. Fulton, 31 Miss. 348; Martin v. Tarver, 43 Miss. 517.

Appellee could not complain of the action of the original petitioner and interveners in abandoning their claim to a lien on the property of appellee and seeking only a money judgment.

Sec. 536, Code of 1930; Queen Ins. Co. v. Betbreze, 98 Miss. 262, 53 So. 592.

A finding of fact by a jury is binding on a trial court and appellate courts and will not be disturbed on appeal.

Watkins v. Watkins, 142 Miss. 210; Thomas v. State, 129 Miss. 332; N. O. & R. Co. v. Ward, 132 Miss. 463; Louisville & R. Co. v. Jones, 134 Miss. 53; Ayers v. Tonkel, 138 Miss. 712; Green v. Everson, 141 Miss. 129; Pierce v. Garrett, 142 Miss. 641.

It is appellants contention that Gormly was the agent of appellee by express authority of the words of the lease contract.

21 R. C. L., sec. 109, pages 930, 931; 10 R. C. L., Estoppel, page 692.

Appellee accepted the benefits of Gormly's acts and was therefore liable to appellants.

21 R. C. L., sec. 111, page 932; Meyer v. Morgan, 51 Miss. 21; 2 L.R.A. 809.

Appellee was estopped to deny Gormly's authority to contract with appellants and bind the appellee.

21 R. C. L., sec. 84, pages 907; Phelps v. Sullivan, 140 Mass. 36, 2 N.E. 121, 54 Am. Rep. 442.

The apparent authority of an agent to act as the representative of his principal is to be gathered from all the facts and circumstances in evidence, and is a question of fact for the jury's determination.

Doggett v. Greene, 254 Ill. 134, 98 N.E. 219; Bond v. Pontiac, etc., R. Co., 62 Mich. 643, 4 A. S. R. 885; Dierkes v. Hauxhurst Hand Co., 80 N.J.L. 369, 79 A. 361, 34 L.R.A. (N.S.) 693; Horton v. Early, 39 Okla. 99, 134 P. 436, 47 L.R.A. (N.S.) 314; Wise v. Pugh, 106 So. 81, 140 Miss. 479; Gibson v. J. Snow Hardware Co., 94 Ala. 346, 10 So. 304; Birmingham News Co. v. Birmingham Printing Co., 104 So. 506, 213 Ala. 256.

W. L. Guice and J. D. Stennis, Jr., both of Biloxi, for appellee.

In appellee's motion for a new trial there are several reasons stated why the verdict and judgment should have been set aside and a new trial granted, among those being the change in the form of actions made by the appellants' abandonment of their claim to a lien, under which claim for a lien they were permitted to join in one cause their several claims in rem.

1 R. C. L., Actions, sec. 39, page 364.

Courts of law will not take cognizance of distinct and separate claims of liabilities of several persons in one suit, though standing in the same relative situation.

The law does not permit separate creditors to join in a single action against their debtor unless there be a joint interest between them in the thing demanded or a privity of contract which authorizes the joinder.

Walker v. Powers, 104 U.S. 245; Ryder v. Jefferson Hotel Co., 121 S.C. 72, 113 S.E. 474, 25 A.L.R. 739; Gardner v. Rumsey, 81 Okla. 20, 196 P. 941, 25 A.L.R. 1411; Tanner v. Culpepper Construction Co., 117 Va. 154, 83 S.E. 1052, Ann. Cas. 1917E 794.

The appellants wholly failed to make out a case against appellee.

Crocket v. Young, 1 S. & M. 241; Allen v. State, 1 Miss. 126; Barnett v. Jayne, 1 Miss. 65; Otey v. McAfee, 38 Miss. 348; Dobson v. State, 67 Miss. 330, 7 So. 327.

We respectfully submit that since said cause is presented to the court upon a special bill of exceptions comprising the whole record in said cause, and since the dismissal of said cause by the trial court accomplished the same result that would have been accomplished had there been either a directed verdict for the appellee or a peremptory instruction given for the appellee, the action of the trial court as well as the first appellate court should be by this honorable body affirmed and judgment here rendered in favor of appellee.

Argued orally by L. H. Doty, for appellant, and by W. L. Guice, for appellee.

OPINION

Anderson, J.

Appellee owned the Biloxi Golf Course, including the club house thereon. Appellant R. B. Wenger began this proceeding in the county court of Harrison county under section 2262, Code of 1930, to enforce a lien against the golf course and club house owned by appellee for labor and materials furnished by him for their repair and improvement. Six others claimed liens of the same character on the property; they were named by appellant in his petition, and intervened and became parties to the cause, propounding their claims. No one of the claims exceeds the sum of one thousand dollars, but the aggregate of all does exceed that amount. There was a judgment in the county court for appellee, from which judgment appellant appealed to the circuit court where the judgment of the county court was affirmed, and from the judgment of the circuit court appellants prosecute this appeal.

Appellee became the owner of the Biloxi Golf Course subject to a first mortgage bond lien in the principal sum of fourteen thousand dollars. The course and the club house were in bad repair. C W. Gormly desired to lease and operate the property, and the right to purchase it. Appellee was desirous of disposing of it in some satisfactory manner. On the 1st day of November, 1933, Gormly and appellee entered into a written contract with reference to the matter. The pertinent parts of the contract provided substantially as follows: That Gormly should lease the property for one year from that date, for which he agreed to pay a rental of two thousand five hundred dollars, which was to be paid into appellee bank in cash on the date of the execution of the contract; that Gormly should expend this two thousand five hundred dollars, on his checks, subject to appellee's approval, in repairing and reconditioning the course and club house; that at the end of the year Gormly should have the option of a lease for another year at a rental of two thousand five hundred dollars. In addition to the annual rental of two thousand five hundred dollars, Gormly was to pay all "taxes, water rent, upkeep or any other charges or expenses, or damages that might arise by the operation of the said golf course." The contract also contained a purchase option by Gormly, which provided that he should have the right to purchase the property for the sum of fifty thousand dollars to be paid by his assuming the first mortgage bonds of fourteen thousand dollars, in addition, ten thousand dollars in cash, ten thousand dollars one year after the purchase, and sixteen thousand dollars of...