McCune v. Commercial Pub. Co. , 148 Miss. 164 ( 1927 )

HoldeN, P. J.,

delivered the opinion of the court.

The Commercial Publishing Company, appellee, sued P. G-. McCune, appellant, for four hundred twenty-five dollars and sixty-five cents, in the circuit court, as a balance due by McCune to the Commercial Publishing Company under a contract for the agency and sale and delivery of the daily Commercial Appeal, at Kosciusko. The case has drifted along for several years, having been begun in the circuit court, but transferred: to the chancery court, and after several rulings in both courts, Mc-Cune appeals here to settle the different propositions of law inyolved.

The case, in short, is that McCune contracted with .the publishing company to sell the .daily Commercial Appeal, at Kosciusko, and to pay the Commercial Publishing Company an agreed price for the papers. McCune entered into a bond in the sum of five hundred dollars to secure the payment of any amount he might be due the publishing- company. This bond was signed by two sureties, but as the two sureties seemed to have faded out of the case in the lower court, we shall not mention them again-herein.

McCune became indebted to the publishing* company in the sum of four hundred twenty-five dollars and sixty-five cents, and made default in the payment thereof. Suit was filed in the circuit court for the amount, and McCune filed a plea of set-off against the account; the set-off consisted of a claim of one thousand1 dollars as unliquidated damages arising out of a breach of contract, different and disconnected from the contract sued on in the case. The publishing company demurred to the plea of set-off, and the circuit judge sustained the demurrer under the familiar rule of law that unliquidated damages cannot be used as a set-off in a suit for debt. ■ Complaint is made here as to this ruling of the circuit judge, but we think the complaint is without merit.

The appellant, McCune, then moved the court to transfer the cause to the chancery court of Attala county, which motion was sustained. Following this order, papers in the case were duly filed with the chancery clerk of said county. It seems that one of the parties, the publishing company, thought for a while, it would appeal the case to the supreme court on the question as to whether or not the suit should have been transferred to the chancery court; however, this appeal was not prosecuted to the supreme court. Then, a controversy arose between counsel in the case as to when the pleadings could be filed in the chancery court. The publishing company failed to file its bill within the time required by the statute, but the court had granted sixty days in which to file it, and then granted an additional sixty days’ time for its filing. The bill was finally filed.

The record discloses that there was a controversy between the attorneys as to what agreements they had with reference to delaying the trial, and as to other alleged understandings or misunderstandings between them. The chancellor heard all of the testimony as to these differences of fact between the attorneys, and decided, upon a conflict, that the publishing company should not be dismissed on the ground of laches, or for any other reason.

McCune, the appellant, contends that the court erred: in not sustaining his motion to dismiss the suit on account of laches of the publishing company. We do not think this point is maintainable. The chancellor had the right, ■within reasonable discretion, to extend the time fo.r the filing of the pleadings in the case.; and his finding of fact as to the delay in the filing of the pleadings, on account of alleged agreements between counsel, not being manifestly wrong, will not he disturbed by this court.

The appellant, McCone, next urges that the lower court erred in entertaining jurisdiction of the cause, after a motion had been filed to recuse the chancellor as being disqualified because of relationship to one of the parties. The motion was made after the case had been heard by the chancellor. The court did not know, nor was his attention called to the fact that he was related to one 'of the parties to the suit until after his decision on the. merits of the case had been reached and made known. We disagree with the position taken by counsel, because the motion to recuse should have been filed before the case was heard by the chancellor, or as soon as counsel knew of the fact of relationship to one of the parties.

Courts are not to be trifled with in such matters. Judges do not have any desire to sit in cases where they are disqualified for any reason, and it is only fair that notice be given the judge of any such disqualification before he hears the case so that he may recuse himself. Any other rule might result in an unfair advantage being taken in a case where an attorney who moves against a judge, might wait until after he could ascertain whether the decision would be for or against him; and, if against him, he would file a motion to recuse, but if for him, he would accept it without complaint.

It will be observed that the question of whether the circuit judge erred in sustaining the demurrer to the plea of set-off is not properly before us for decision, because the case was at that time in the circuit court, but was afterwards transferred to the chancery court where the pleadings were filed; and the present appeal is from the chancery court’s action under the chancery pleadings, and we find no ruling made on that question before the chancellor. However, we have herein- before decided tlie point, so that the case may go back and be tried on the very simple question of whether McCnne is indebted to the publishing’ company for the daily Commercial Appeal furnished him under contract in the case. The decree is affirmed and the cause remanded.

Affirmed and remanded.