Murphy v. American Soda Fountain Co.

Tbuly, J.,

delivered the opinion of the court.

The chancellor did not err in permitting the amendment to the bill of complaint, bringing in Barber & Mize as defendants, to be made after the motion to dissolve had been filed, and in considering the amendment iu connection with the original bill upon the hearing of the motion. Alcorn v. Alcorn, 76 Miss., 907 (25 South. Rep., 877). The amendment was rendered imperative by the allegation in the original answer filed by Murphy & Company. That answer set up as a defense the 'fact that the judgment in question was not the property of the respondents, but of third persons — Barber & Mize — to whom it was alleged the claim had been assigned before being reduced to judgment. In the interest of justice, a full development of the merits of the controversy necessitated the consideration of this amendment; otherwise, the parties originally made sole defendants having avowed their entire want of interest in the subject-matter of the controversy, the bill of complaint would necessarily have been dismissed.

ISTor was there any error in admitting the correspondence between the appellants and their counsel and co-defendants and the appellee. The authenticity of the letters was acknowledged, and their contents proved full knowledge on the part both of appellants and their assignees of the dealings and understanding between Murphy & Company and the soda fountain company— and this, too, prior to the date of their assignment. In view of this, the assignees of the claim cannot successfully maintain that they were bona fide purchasers for value, ’ and without notice.

The amended bill of complaint states a good cause of action, and the proof adduced upon the hearing of the motion sustains the allegations, and tends to prove the existence of an understanding between Murphy & Company and the appellee that the amount of the indebtedness due appellee should be paid out of the money derived from the claim for damages which Murphy & Company asserted against the railroad and on which judgment in their favor was rendered. Even had there been no distinct agreement that the money obtained from the judgment was to be first applied to the payment of the balance on the soda fountain due by Murphy & Company to appellee, equity, under the facts of this case, would imply existence of such an understanding. The property which was destroyed, and for the loss of which Murphy & Company instituted suit against the railroad, belonged to appellee. The contract of purchase shows that title thereto was unconditionally reserved by appellee until payment in full of the purchase price. Therefore, while Murphy & Company were proper parties to institute proceedings against the railroad for the loss and damage, the judgment rendered in pursuance of that suit, by operation of law, inured, to the extent of its interest, to the benefit of the real owner of the property destroyed — namely, the American Soda Eountain Company. This case falls clearly within the principle announced in Loeb v. Railroad, 60 Miss., 933. Appellee’s only remedy was against tire proceeds of the judgment, which stands in the place of the property.

Counsel for appellants misconceive the nature of the suit when they contend that this is an effort by one court to enjoin the enforcement of a judgment of another court of equal dignity, where it is admitted that the judgment sought to he enjoined is neither void nor irregular. That is not this case. This case proceeds upon a recognized principle of equity jurisdiction, and seeks to subject a special fund to the payment of the claim to which it should justly he applied, and the intervention of a court of equity may rightfully he invoked to prevent a misappropriation of the fund. The enjoining of the railroad company from paying the judgment is merely an incident to the relief sought, and one, too, which is no longer of interest, as the answer filed by the Gulf & Ship Island Railroad Company tenders the money into court, and interpleads all parties in interest.

The action of the court in refusing to dissolve the injunction because the amount claimed by the appellee lacked a few dollars of consuming the entire- judgment was correct. If the judgment exceeds the time amount justly due appellee on the soda fountain, upon final hearing the assignees of Murphy & Company will be entitled to be first-paid the entire amount remaining due on the balance; but under the record as now presented appellee is entitled to be first paid the entire amount remaining due ón the soda fountain.

In the absence of a positive agreement, appellee would not, as against Barber & Mize, assignees of Murphy & Company, be- entitled to receive pay in this proceeding for the amount which it claims is due for sirups furnished. As to this, the proof does not show notice of appellee’s claim on the part of Barber & Mize, or that it occupied any such attitude as would give- it an. implied legal right to resort, in the method adopted, to this, particular fund for satisfaction.

Affirmed, and remanded for further proceedings in accordance with the views herein announced.