Yazoo & M. V. R. Co. v. Lawler

• Decision Date: 27 November 1922
• Docket Number: 22804
• Parties: YAZOO & M. V. R. CO. v. LAWLER
• Court: Mississippi Supreme Court

94 So. 219

130 Miss. 421

YAZOO & M. V. R. CO. v. LAWLER

No. 22804

Supreme Court of Mississippi

November 27, 1922

APPEAL from chancery court of Coahoma county, HON. G. E. WILLIAMS Chancellor.

COURTS. Equity. Court cannot try cause and enter decree in vacation against party not agreeing thereto.

Under section 506, Code of 1906 (Hemingway's Code, section 262), providing for actions that may be done in vacation reciting, among other things, "and by consent of the parties or of their solicitors of record, he may try causes and deliver opinions and make and sign decrees therein in vacation," the court cannot try a cause and make a valid decree against a party who has not agreed for same to be done in vacation.

HON. G E. WILLIAMS, Chancellor.

APPEAL from chancery court of Coahoma county, HON. G. E. WILLIAMS Chancellor.

Suit by H. J. Lawler against the Yazoo & Mississippi Valley Railroad Company. From a decree rendering judgment for plaintiff, the defendant appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

F. H. Montgomery and John W. Crisler, for appellant.

The decree against appellant is obviously and palpably void. The authority of the chancellor in vacation in such matters is prescribed by section 506 of the Code of 1906, section 262, Hemingway's Code. The part of the section pertinent to this discussion is as follows, to-wit: "And by consent of the parties or their solicitors of record, he may try causes and deliver opinions and make and sign decrees in vacation."

The railroad company not being a party to this agreement, the decree rendered against it is not binding upon it. In fact, the railroad company was entirely ignored in this proceeding. It had no notice of the hearing in vacation and therefore no opportunity to show the disposition of the attached property. It was given no opportunity to show what it received, if anything, from the sale of the attached hay. It had no opportunity to show the deductions for freight charges, etc., and what were the net proceeds. All this would properly have been shown at the next regular term of the court. It was given no opportunity to refute the figures and date, whereby the amount was arrived at, which was evidently presumed by the appellee to have been realized from the sale, and now denies the correctness of the amount shown in the decree. Where this date and information came from, appellant does not know. It is inconceivable to counsel for appellant how this figure could have been arrived at. The true facts can only be shown by setting aside the judgment against appellant and allowing appellant to answer or to file a report.

If this cause was to proceed without the railroad Company taking part therein, it was at least incumbent upon appellee to first attempt to secure a decree pro confesso against it or to call upon it to make a report of sale. The company could then, during the term of court, have had a fair opportunity to present its side of such a proposition to the court. But the next thing that is heard of the case is when appellee's attorney informs the railroad's representative that a decree had been rendered in vacation against the company.

Even if complainant had taken a decree pro confesso, still he would not have been entitled to a final decree for the reason that there is nothing in the original bill which entitles complainant to relief against the railroad company. The bill nowhere alleges what the value of the two cars of hay was and fails to allege any facts from which the value might reasonably be inferred. It is well settled in Mississippi, that, notwithstanding a decree pro confesso, no final decree should be rendered thereon unless the bill states a cause entitling the complainant to relief. George v. Soloman, 71 Miss. 168, 14 So. 531; Minor v. Stewart, 2 How. 912.

This rule holds true even though the evidence establishes a good cause for the complainant. The facts entitling the complainant to relief must be stated in the bill. Spears v. Cheatham, 44 Miss. 64.

We especially call the court's attention to the fact that the lower court does not decree that the railroad company was indebted to the non-resident defendant, a fact which is essential and necessary to justify a decree against the railroad company. The decree, for no apparent reason, enters a decree for three hundred twenty-four dollars in favor of the complainant. No authority for such action of the court can be justified upon any ground.

We respectfully submit that if a personal decree was to be rendered against the railroad company, it was entitled to a full hearing in court. Certainly it would be unfair and inequitable for this case to be heard in vacation with no notice whatever to the appellant and with no chance to refute any date or figures that might be offered by one of the other parties to the suit.

We confidently assert that if appellant had been allowed a chance to be heard in that hearing that the decree of the court would have been very different. As the matter now stands before the court the amount of three hundred twenty-four dollars must have been arrived at upon the merest suppositions of the appellee herein. We confidently submit that no legal evidence could be offered to sustain a decree for three hundred twenty-four dollars against the appellant and since no opportunity was given the appellant to refute the incorrect data which was presented to the court, the case should be reversed and remanded for a new hearing, and the garnishee defendant allowed to...