Deltains & Realty Co. v. Fourth Nat. Bank of Montgomery , 127 Miss. 152 ( 1921 )

Smith, C. J.,

delivered the opinion of the court.

On November 7, 1918, Gwin & Mounger, a partnership composed of S. L. Gavíii and E. L. Mounger and engaged in the practice of law in Greenwood, Miss., sued out an attachment in the chancery court of Leflore county against the Alabama Fidelity Mortgage & Bond Company, a corporation organized and domiciled in the state of Alabama, the Delta Insurance & Realty Agency, a corporation organized and domiciled in the state of Mississippi, and Shelby S. Steele, a resident citizen, of Leflore county, Miss., alleging that the Alabama Fidelity Mortgage & Bond Company is indebted to them in the sum of one thousand five hundred and twelve dollars and thirty-two cents, and that the Delta Insurance & Realty Agency is indebted to the Alabama Fidelity Mortgage & Bond Company in the sum of fifteen hundred dollars, evidenced by three promissory notes, each dated February 24,1917, and payable eighteen, twenty-four, and thirty months respectively thereafter, which indebtedness to the Alabama Fidelity Mortgage & Bond Company they prayed the court to subject to the payment of the debt due them by that company. Process was served on the local defendants, and publication was made for the nonresident defendant.

On November 1, 1918, the Fourth National Bank of Montgomery, Ala., instituted an action at law against the Delta Insurance & Realty Agency and Shelby S. Steele on the note executed by them to the Alabama Fidelity Mortgage & Bond Company which became due eighteen months after its date, which note had been endorsed in blank by the payee thereon.

On July 11, 1919, the Fourth National Bank instituted a second action at law in the court below against the Delta Insurance & Realty Agency and Shelby S. Steele on the two remaining notes executed by them to the Alabama Fidelity Mortgage & Bond Company which had then become due and which were also endorsed in blank by the,payee therein.

In January, 1918, the Delta Insurance & Realty Agency and Shelby S. Steele filed in the court below an affidavit setting forth the pendency of the suit in the chancery court against them by Gwin & Mounger, and “that the said Gwin & Mounger without collusion with the Delta Insurance & Realty Agency or Shelby S. Steele have a claim to the subject of this action, and that the said defendants are ready to pay or dispose of the subject-matter in this case as the court may direct.” Whereupon, pursuant to an order of the court entered to that effect, Gwin & Mounger were summoned “to appear and contest with the plaintiff the right to such debt sued for in this cause.”

On November 10, 1919, Gwin & Mounger filed a supplemental bill in the chancery court alleging that since the filing of their original bill against the Alabama Fidelity Mortgage & Bond Company, tbe Delta Insurance & Realty Company, and Shelby S. Steele, they had learned that the Fourth National Bank of Montgomery, Ala., claimed to own the promissory notes executed by the Delta Insurance & Realty Agency and Shelby S. Steele to the Alabama Fidelity Mortgage & Bond Company, and prayed that the bank be made a party defendant by publication. After-wards Gwin & Mounger, pursuant to the notice so to do, appeared in the court below and filed a written statement of their claim against the Alabama Fidelity Mortgage & Bond Company for legal services rendered, setting forth the execution to that company of the three promissory notes here sued on and the suit instituted by them in the chancery court for the purpose of subjecting the same to the debt due them by the Alabama Fidelity Mortgage & Bond Company, and, further, that, the Fourth National Bank of Montgomery was neither the owner nor the holder of the notes and therefore was without right to sue thereon.

In January, 1920, Gwin & Mounger filed a petition in the court below praying that the cause be removed to the chancery court, which petition ivas by the court overruled. The two suits on the promissory notes were then consolidated and the trial proceeded with Gwin & Mounger as defendants therein, resulting in a judgment for the plaintiff, the Fourth National Bank of Montgomery. The Delta Insurance & Realty Agency and Shelby S. Steele requested the court in writing to incorporate in the judgment against them a stay of execution until the suit pending against them in the chancery court should be disposed of, which motion Avas overruled and a judgment against them on the promissory notes Avithout a stay of execution Avas entered. From this Gwin & Mounger, the Delta Insurance & Realty Agency, and Shelby S. Steele appealed to this court.

Gavíu & Mounger were wrongly brought into the court in the court below for the reason that they have no “claim to the subject of the action” as required by section 772, Code of 1906, Hemingway’s Code, section 555. They have no so|t of claim to the ownership of the promissory notes sued on, and any right they may have to collect them will depend on their prosecuting to a successful conclusion the suit begun by them in the chancery court for that purpose. The court below, therefore, not only committed no error in not transferring the cause over the objection of the plaintiffs therein to the chancery court, but should have gone further and of its own motion dismissed as to G-win & Mounger without prejudice to their right to continue the prosecution of the suit begun by them in the chancery court.

The motion of the Delta Insurance & Realty Agency and Shelby S. Steele for a stay of execution until they should be discharged from liability because of the suit pending against them in the chancery court should have been sustained, reserving to the court below the power to vacate the stay of execution in event the suit in the chancery court should not be prosecuted with reasonable diligence. 7. & M. V. R. Co. v. Fulton, 71 Miss. 385, 14 So. 271.

The judgment of the court below will be reversed, and judgment will be entered here in accordance with this opinion.

Reversed, and judgment here.