Williams Bros. v. Bank of Blue Mountain

• Decision Date: 23 April 1923
• Docket Number: 23137
• Citation: 132 Miss. 178,95 So. 843
• Court: Mississippi Supreme Court
• Parties: WILLIAMS BROS. et al. v. BANK OF BLUE MOUNTAIN

95 So. 843

132 Miss. 178

WILLIAMS BROS. et al. v. BANK OF BLUE MOUNTAIN

No. 23137

Supreme Court of Mississippi

April 23, 1923

1 COURTS. Case triable at special term, if triable at preceding regular term.

A case is triable at a special term of the chancery court, if it were triable at a preceding regular term thereof.

2. EQUITY. Where complainant sets cause for hearing before expiration of time allowed for taking testimony, answer filed taken as true.

Under section 1937, Code 1906 (Hemingway's Code, section 1597) which provides: "Two months shall be allowed for taking depositions after answer filed" (in the chancery court) "before the case shall be set down for hearing by the defendant," and section 603, Code 1906 (Hemingway's Code, section 363), which provides: "If the complainant shall set down the cause for hearing before the expiration of the time allowed for taking testimony, the answer shall be taken as true," a case may be tried at the option of the complainant at a trem of the court held less than two months after the filing of the defendant's answer, but, if he sets it down for hearing before the expiration of such time the allegation of the answer must be taken as true.

3 TIME. Method of computation of time allowed for filing depositions before case can be set for hearing by defendant stated; "months."

The two months that must be allowed for taking depositions after answer filed in the chancery court before the case can be set down for hearing by the defendant are calendar months, and in computing such a month time must be reckoned by looking at the calendar and not by counting the days, and when not coincident with the particular month named in the calendar such a month is the period of time from the day from which the month is to be computed to the day numerically corresponding thereto in the following month less one, if the following month has so many days, if not, to the last day thereof.

4. APPEAL AND ERROR. Appellant not entitled to reversal for error against another defendant not affecting rights.

One of the appellants is not entitled to the reversal of a judgment or decree, because of error therein against another defendant not affecting his rights in the case.

5. COURTS. Decree pro confesso proper at regular term may be taken as subsequent special term.

A decree pro confesso, which could have been taken at a regular term of the chancery court, may be taken at a special term held thereafter.

6. LANDLORD AND TENANT. Crops of tenant not impressed with lien for attorney's fee stipulated in note given for rent.

Section 2832, Code 1906 (Hemingway's Code, section 2330); which gives the landlord a lien on the crops of his tenant to secure the rent and advances made to the tenant, does not include an attorney's fee, consequently the crops of the tenant are not impressed with a lien for an attorney's fee which he agreed to pay in a note given the landlord for the rent, in event the note should be placed in the hands of an attorney for collection.

HON. JAS. G. MCGOWAN, Chancellor.

APPEAL from chancery court of Tippah county, HON. JAS. G. MCGOWAN, Chancellor.

Suit by the Bank of Blue Mountain against R. H. Williams and another, a partnership, doing business under the name of Williams Bros., and W. R. Humphrey, J. B. Hughes, and others. From the decree rendered, defendants Humphrey and Hughes appeal. Reversed, and decree rendered.

The appellee sued R. H. and R. Williams, a partnership, doing business under the name of Williams Bros., on a note executed by them to Mrs. A. H. Williams for the rent of a plantation leased by them from Mrs. Williams, and joined as codefendants in the suit Mrs. Williams and several persons, among whom are W. R. Humphrey and J. B. Hughes, who had purchased cotton raised on the plantation by Williams Bros., and on which there was a lien in favor of Mrs. Williams for the rent due her by Williams Bros. The cause was heard at a special term of the court below.

The record contains only the pleadings, the process, and the decree rendered, which decree is as follows:

"This cause was this day heard on original bill, on answer of the Bank of Drew, on answer of Williams Bros., a copartnership composed of R. H. & R. Williams, on amended and supplemental bill, on answer of the said Williams Bros., and the said Bank of Drew, to the said amended and supplemental bill, and on answers of O. F. Jackson and J. B. Hughes, and on service of process on W. R. Humphrey, and Humphrey & Co., and on judgment pro confesso as to the said Mrs. A. H. Williams and on the said W. R. Humphrey, and the said Humphrey & Co., which is the style of the firm of the said W. R. Humphrey, which judgment pro confesso is here rendered, it appearing that neither of the said defendants against whom it is rendered have appeared in court, although they were served with process sufficient to bring them before this court at this time; it is also heard on proof in open court, and the court, having heard said cause as above stated and having considered the same, does hereby decree as follows:

"That the Bank of Blue Mountain, the complainant herein, is entitled to recover on the note sued on in this case for the principal, interest thereon, and the attorney's fees therein provided, all of which aggregate one thousand seven hundred ninety-three dollars and fifty-five cents with six per cent. thereon from the date it was given. And the court does award in favor of the said Bank of Blue Mountain judgment for the aggregate amount, jointly and separately and primarily against the defendants Mrs. A. H. Williams, R. H. Williams, and R. Williams, for said amount and all cost, for which execution will issue.

"It is further decreed and found that judgment should be and is hereby rendered against W. R. Humphrey and Humphrey & Co. in the sum of one thousand seven hundred seven dollars, with interest thereon at six per cent. from November 15, 1920, which interest amounts to one hundred fifty-three dollars and sixty-five cents, making a total of said judgment rendered against the said W. R. Humphrey and Humphrey & Co. to be one thousand eight hundred sixty dollars and sixty-five cents. However, judgment is only rendered against the said W. R. Humphrey for the said sum of one thousand seven hundred ninety-three dollars and fifty-five cents (the principal, interest, and attorney's fees of the note here sued on), and the cost of this suit, but in no event is the amount to be collected to be greater than the said sum of one thousand eight hundred sixty dollars and sixty-five cents, with interest thereon from this date at six per cent.

"It further appears that judgment should be and is hereby rendered against J. B. Hughes for the sum of two hundred fifty-six dollars, with interest thereon from November 15, 1920, at six per cent., which interest amounts to twenty-three dollars, and a judgment is rendered, therefore, for the said principal and interest for the aggregate sum of two hundred seventy-nine dollars, with interest from this date at six per cent.

"However it is further decreed that the said Humphrey & Co. and W. R. Humphrey are secondarily liable to the complainant bank for the judgment rendered against Mrs. A. H. Williams, R. H. Williams, and R. Williams, and execution will issue against the said three last-named defendants. Thereupon execution will issue against the said W. R. Humphrey, Humphrey & Co., and against the said J. B. Hughes for the principal, interest, attorney's fees of said note, with all costs of this suit. It is decreed that, in view of the fact that the joint judgment rendered against the said Humphrey & Co., W. R. Humphrey, and J. B. Hughes exceed the principal, interest, and attorney's fees of the note, that the said amount to be collected from W. R. Humphrey and Humphrey & Co. and the said J. B. Hughes shall be in proportion and on the basis of the respective judgments here rendered against them respectively.

"It is further decreed and so found that the complainant bank have and recover nothing from the defendant the Bank of Drew and the defendant O. F. Jackson, and the said suit is dismissed as to these two last-named defendants."

Summons was served on Humphrey and Hughes on December 27, 1921. Hughes' answer was filed on January 19, 1922, and the answers of several other defendants were filed at a later date. A regular term of the court below should, but seems not to, have been held on Monday, March 20, 1922, and a special term was called and convened on April 27, 1922, at which this cause was tried. The appeal is by Humphrey and Hughes.

Decree reversed.

G. G. Lyell, S.D. Gwin and Will P. Searcy, for appellant.

Was this cause properly triable at the April special term without the consent of Humphrey & Company? The record does not show whether the regular March term, which regular term would have convened for six days session on 3rd Monday of March, 1922, was held. If held, no action was taken to obtain a pro confesso against W. R. Humphrey & Company or W. R. Humphrey upon whom process had been served returnable to January Rules, 1922, which required an answer by February Rules.

Hence it was that this cause was not "properly triable" at the March term. For no pro confesso was taken, and two months had not elapsed from the filing of answers by other defendants that set up a good defense to the suit, that the landlord's lien was waived by permitting the tenants to market and sell the cotton in controversy, and the cause was not triable at the March term, if held, except by consent of all parties.

If the regular March, 1922, term was not held, it certainly cannot be said that the cause was properly triable at that time or term, for there must be term held for any cause to be "properly...