Opinion
No. 41987.
October 23, 1961.
1. Equity — consolidation of causes — parties — decree.
Generally, consolidation of causes does not make parties to one cause parties to other, and separate decrees are entered, unless nature of matters be such that it is clearly proper to include them in one decree.
2. Equity — separate actions against endorsers and maker on endorsed note — consolidation of causes — single decree properly entered.
Single decree was properly entered, where holder of note sued endorsers in chancery without joining maker, and then sued maker in separate suit in same court, and suits were consolidated without objection by endorsers.
3. Bills and notes — separate actions against endorsers and maker on endorsed note — consolidation of actions — single decree — met requirements of Sec. 239, Code 1942.
Statute requiring that maker of note be joined as party defendant in suit against endorsers was satisfied, where holder sued endorsers in chancery without joining maker, and then sued maker in separate suit in same court, and suits were consolidated without objection by endorsers, and one final joint and several decree was entered against endorsers and maker. Sec. 239, Code 1942.
4. Appeal — consolidation of causes — objection on appeal came too late.
Objection to consolidation of suits could not be raised for first time on appeal.
Headnotes as approved by Gillespie, J.
APPEAL from the Chancery Court of Hinds County; W.T. HORTON, Chancellor.
Bernard W.N. Chill, Ben H. Walley, Jackson, for appellants.
I. Section 239 of the Mississippi Code of 1942 positively and unqualifiedly requires that resident makers of a promissory note be joined with the endorsers, resident within the state, in a suit to enforce the collection of a promissory note. Agriculture Bank v. Harris, 2 Sm. M. 463; Hamilton v. Catchings, 58 Miss. 92; Hederman v. Cox, 188 Miss. 21, 193 So. 19; Lillard v. Planters' Bank, 3 How. (4 Miss.) 78; McMillan v. Sprague, 4 How. (5 Miss.) 647; Parrish v. Feldman, 182 Miss. 77, 180 So. 610, 181 So. 336; Rappleye v. Hill, 2 Sm. M. 295; Smith v. Crutcher, 27 Miss. 455; Stiles v. Inman, 55 Miss. 469; Wilkinson v. Tiffany, 5 How. (13 Miss.) 411; Secs. 239, 5319, Code 1942; 7 Bac. Abr. 468; 1 C.J.S., Actions, Sec. 113b(1); Griffith's Mississippi Chancery Practice, Sec. 506; 15 Johns. 389.
II. A consolidation of Causes Nos. 57640 and 58357 did not meet the requirements of Sec. 239 of the Code of 1942 and make the maker a joint defendant in Cause No. 57640 (here appealed) it not having been made a party to the prior bill of complaint or by service of process in the manner required by law. Sec. 239, Code 1942; 1 C.J.S., Actions, Sec. 113b(1); Griffith's Mississippi Chancery Practice, Sec. 506.
Wm. A. Bacon, Jackson, for appellee.
I. The complainant Harrigill was not required to sue Hinds Chemical Company, Inc., maker of the promissory note, because of the fact that the said Hinds Chemical Company was insolvent and out of business at the time suit was instituted. Arnold v. Waters, 42 S.C. 43, 20 S.E. 19; Baker v. Glade, 23 Mo. 405; Castagno v. Carpenter, 14 Colo. 524, 24 P. 392; Drane v. Scholfield, 33 Va. 27, 23 S.E. 681; Gillespie v. Wheeler, 46 Conn. 410; Merchants Nat. Bank v. Spates, 41 W. Va. 27, 23 S.E. 681; Miller v. McIntyre, 9 Ala. 638; Mishawaka First Nat. Bank v. Staf, 165 Ind. 162, 74 N.E. 987; Piascyk v. Malon, 116 Conn. 418, 165 A. 352; Pittman v. Chisolm, 43 Ga. 442; Pyle v. McMonagle, 2 Del. 468; Wills v. Claflin, 92 U.S. 135, 23 L.Ed. 490; 8 Am. Jur., Bills and Notes, Sec. 816; 8 C.J., Bills and Notes, Sec. 680; 10 C.J.S., Bills and Notes, Sec. 295.
II. The endorsers (appellants herein) were jointly and severally liable on the note sued on herein and could be sued separately and apart from the maker of the note. J.B. White's Garage v. Boyd, 149 Miss. 383, 115 So. 334; Steen v. Finley, 25 Miss. 535; Vandiver v. Third Nat. Bank of Atlanta, 15 Ga. App. 433, 83 S.E. 673; Secs. 106, 107, 335, Code 1942; 50 Am. Jur., Statutes, Sec. 543; 11 C.J.S., Bills and Notes, Sec. 739.
III. The defendants' pleas in abatement were not timely filed; they were not entitled to be filed and all matters in abatement were waived. Burroughs v. Murphy, 131 Miss. 526, 95 So. 518; Campbell v. Farmer's Bank, 127 Miss. 668, 90 So. 436; Columbian Mutual Life Assur. Soc. v. Cumberland, 148 Miss. 690, 114 So. 810; Darcey v. Lake, 46 Miss. 117; Lewis v. State, 65 Miss. 468, 4 So. 429; Payne v. Stevens, 125 Miss. 582, 88 So. 165; Stoval v. Sumrall Auto Sales Co. (Miss.), 121 So. 846; Secs. 1290, 1458, Code 1942; 8 Am. Jur., Bills and Notes, Sec. 969; 39 Am. Jur., Parties, Sec. 111; Griffith's Mississippi Chancery Practice (2d ed.), Secs. 325, 336, 336 note 17, 340 note 22a, 557; Black's Law Dictionary, "in limine" defined.
IV. The cases against the endorsers of the note and the maker of the note were properly consolidated in the court below. Complaints and objections to such consolidation may not be raised in the Supreme Court for the first time. Adams v. Board of Suprs. of Union County, 177 Miss. 403, 170 So. 684; Hassie Hunt Trust v. Proctor, 215 Miss. 84, 60 So.2d 551; Kingston Consol. School Dist. v. Forman, 233 Miss. 42, 101 So.2d 102; Mississippi Valley Trust Co. v. Brewer, 157 Miss. 890, 128 So. 83; 1 Am. Jur., Actions, Secs. 93, 95; 3 Am. Jur., Appeal and Error, Sec. 339; Griffith's Mississippi Chancery Practice (2d ed.), Sec. 506.
Section 239, Mississippi Code of 1942, requires the maker of a note be joined as a party defendant in a suit against the endorsers. The question in this case is whether the requirement of Section 239 is satisfied when the holder sues the endorsers in chancery without joining the maker, then sues the maker in a separate suit in the same court which is consolidated with the first suit without objection by endorsers, and one final joint and several decree is entered against the endorsers and the maker. We hold that under the circumstances of this case the requirement of the statute was satisfied.
On June 2, 1960, appellee filed suit against appellants on a note payable to appellee. The maker of the note was Hinds Chemical Company, Inc. Appellants were two of the endorsers of the note. Equity jurisdiction was invoked because of discovery aspects of the bill of complaint. Dr. and Mrs. Elliott, appellants, were given 80 days additional time to answer the bill of complaint. Nicholson and Pleasants, defendants below and also endorsers, were granted 30 days additional time to answer. On August 23, 1960, Nicholson and Pleasants filed two special pleas and an answer to the bill. On August 26, 1960, Dr. and Mrs. Elliott filed their answer which incorporated three special pleas. On September 15, 1960, Dr. and Mrs. Elliott filed another special plea in bar.
The case was set for trial on November 22, 1960. Before trial on that morning, appellants filed a special plea in abatement based on Section 239, Mississippi Code of 1942, and the fact that the maker of the note was not a party, and gave notice to appellee, pursuant to Section 253, Mississippi Code of 1942, to begin prosecution of suit against the maker as provided in said statute. The court heard the plea in abatement before trial on the merits and overruled it on the ground that it was not timely filed. Appellants then announced they would stand on their plea and declined to take any further part in the case. The court, however, required appellants to remain in court while appellee proved his case, after which he took the case under advisement.
Also on November 22, 1960, appellee filed a separate bill of complaint in the same court against Hinds Chemical Company, Inc., the maker of the note. Hinds Chemical Company, Inc., did not answer, and on November 29, 1960, a decree pro confesso was entered against it. On the same date appellee filed a motion to consolidate the two cases. Appellants made no objection and a decree of consolidation was entered on December 8, 1960, and on the same day entered one final decree in the consolidated causes wherein appellee recovered judgment against all the defendants, jointly and severally. No further proceedings were had below. The Elliotts, Nicholson and Pleasants appealed.
Appellants contend (1) that Section 239, Mississippi Code of 1942, unqualifiedly requires that a resident maker of a note be joined in a suit to enforce payment, and (2) that the consolidation of the causes did not meet the requirements of said Section 239.
Appellee contends (1) that appellee was not required to sue the maker with the endorsers because the maker was insolvent; (2) the maker and endorsers were jointly and severally liable and could be sued separately; (3) appellants waived the right to demand that the maker be joined as a party by not filing the special plea in abatement with their answer and waiting until the day the case was set for trial to file the same; and (4) the causes were properly consolidated and appellants may not object to the consolidation for the first time in the Supreme Court.
We pretermit consideration of all contentions of appellee except the fourth.
(Hn 1) It is the general rule that the consolidation of causes does not make the parties to one cause parties to the other and that separate decrees are entered, unless the nature of the matters be such that it is clearly proper to include them in one decree. Mississippi Chancery Practice, Griffith, Section 506. (Hn 2) This was a proper case for a single decree and a single decree was entered, and the judgment was joint and several against the defendants in both causes. (Hn 3) The single decree was to the advantage of appellants and satisfied the main purpose of Section 239, Mississippi Code of 1942. For all practical purposes, the maker was thus joined as a defendant with the endorsers.
It would have been the better practice for appellee to amend the bill by making the maker a party rather than filing the separate suit and then consolidating the causes. (Hn 4) However, as far as this case is concerned, the decisive factor was the failure of appellants to make any objections to the consolidation until the case reached this Court. 3 Am. Jur., Appeal and Error, Section 339. It is now too late to raise objection to the consolidation, even if we assume appellants could have shown good reason in the court below why the cases should not have been consolidated.
Appellants had every opportunity to make a defense if they had one. The judgment against them as endorsers is joint and several with the maker of the note. They failed to object below to the consolidation, and if they had any valid objection it was waived. We find no reversible error.
Affirmed.
McGehee, C.J., and Kyle, Arrington and Ethridge, JJ., concur.
ON SUGGESTIONS OF ERROR
The two groups of appellants have filed separate suggestions of error. They have been carefully considered and are hereby overruled.
The fourth paragraph of our original opinion states that only the Elliotts appealed. Since the record reflects that the other defendants, Nicholson and Pleasants, also took an appeal, that recitation is corrected accordingly.
Suggestions of error overruled.
McGehee, C.J., and Kyle, Arrington and Gillespie, JJ., concur.