Dibert v. Durham ( 1917 )

Stevens, J.,

delivered the opinion of the court.

(After stating the facts as above.) The bill in this case cannot be maintained. No assault is made upon the final decree recovered by Mrs. Dibert against appellee in the chancery court of Pearl River county and duly affirmed by the supreme court Durham v. Dibert, 70 So. 839. By the terms of that decree appellant was permitted to recover upon the last note of three thousand dollars and this decree operates as a monetary judgment, ánd its integrity cannot now be questioned. This final -decree in the first suit adjudicated liability to Mrs. Dibert in the sum shown by the execution sought to be enjoined. There is here no showing of fraud, accident, or mistake in the rendition of the judgment here attempted to be enjoined. Relief against the judgment itself is really not prayed for. The bill of complaint admits, and is bound to admit, liability for the. full amount of the judgment rendered in the former suit, but the payment of this judgment is asked to be delayed until appellee as complainant litigates with and fixes liability against appellant upon his alleged cross-action for damages. This is an effort not only to delay the execution of a solemn judgment, but to satisfy this judgment by an unliquidated demand for damages. In the enforcement of his alleged claim for damages growing out of the breach of the written lease, complainant has not been diligent, and the bill would appear to come within the ruling of this court in Gum Carbo Co. v. New Orleans German Gazette, 90 Miss. 177, 43 So. 82. Whatever claim appellee has mow he possessed when Mrs. Dibert filed her suit against him. There is no charge of fraud in the transfer or assignment of the notes. It is affirmatively shown that appellant is the rightful owner of the three thousand dollar note and her right to collect upon this-note has never been challenged. See Smedes v. Ilsley, 68 Miss. 590, 10 So. 75.

But there is a still further and perhaps a more fatal objection to the bill. -No contractual relationship exists between complainant and Mrs. Dibert or her deceased husband, John Dibert. John Dibert is not the lessor of the turpentine privileges, and is not a party to the covenants contained in the written lease. There is room for the contention that the lease contemplated the cutting of the timber by the lessor, its agents or assignees, and, with this in view, that the lease provided for liquidated damages. The bill in fact sues to recover the three and one-half cents per cup for each cup alleged to have been destroyed on section 8, and two cents per cup for each cup alleged to have been destroyed on section 17, and in addition thereto claims other damages. But the obligation to pay the agreed value per cup was the obligation of the White Cedar Pile & Pole Company, a corporation, and was and is in no sense the obligation of John Dibert, the manager or agent of the corporation. The only possible recovery against John Dibert, if he were living, would be founded in tort, based upon trespass properly alleged. No action of this hind was filed against John Dibert in his lifetime, and no liability of this hind has been fixed against his personal representative or his estate. In our judgment, then, the bill does not state a case against Mrs. Dibert, the widow. This aside from the contention that appellee could not have the enforcement of the judgment stayed until his damages were fixed and properly adjudicated by the court. .There is no charge that either the corporation or Mrs. Dibert is insolvent. There was no fraud, accident, or mistake in the execution of the written lease, and no showing that the turpentine privileges were not worth the consideration agreed to be paid. More than this, the notes sued on in the first suit were executed by appellee payable to his own order, dated and made payable in Louisiana, and never came within the terms of our anti-commercial statute.

In our judgment, the bill of complaint does not state a case. The decree of the learned chancellor will be reversed, the demurrer sustained, and the cause remanded.

Reversed, demurrer sustained, and_ cause remanded.