B. Lowenstein & Bros. v. Hooker , 71 Miss. 102 ( 1893 )

Campbell, C. J.,

delivered the opinion of the court.

. The assignment shows that it is not a general assignment, and the proceeding by the assignee under chapter 8 of the code of 1892 was not authorized by it, and this proceeding was properly dismissed. Divers creditors of the assignor, instead of exhibiting an original bill, came in, according to the statute, by cross-petition, and introduced sundry new matters, on which they prayed relief. This petition was likewise dismissed, which is complained of; but the dismissal was proper, for it is a mere cross-petition, and the rule is a general one that, except in rare instances, the dismissal of the original carries with it the cross-bill. There is a greater reason for the application of the general rule in such a case as this than usually in chancery causes, because it is alone by virtue of the statute that new parties and new and distinct matters may be introduced by cross-petition; and when the original petition is put out of court as a matter not properly there, every thing dependent should, for the same reason, go too. In a case embraced by chapter 8 of the code, there could not be a dismissal of the assignee’s petition, because rightly filed. The mistake made by the petitioners in the cross-petition was in not ignoring the proceeding by the assignee, and in not exhibiting an original bill, which would not have been a mere dependency of the unwarranted proceeding which the chancellor rightly dismissed as wholly unauthorized. It is true that the partial assignment was dealt with as a general one by the parties concerned, but their blunder did not bind the court.

Affirmed.