Opinion
No. 39283.
October 11, 1954.
1. Discovery — bill for — sufficient to confer Chancery jurisdiction.
Bill filed in an attachment in Chancery against resident defendant and nonresident defendant to subject funds in hands of resident defendant to complainants' claim, to determine which defendant was liable to complainants for labor performed on resident defendant's leased premises, and for discovery as to the true relationship between the defendants and as to what funds resident defendant had in its hands belonging to nonresident defendant, was sufficient to confer jurisdiction on Chancery Court. Sec. 2729, Code 1942.
2. Appeal — equity jurisdiction assumed — no reversal by Supreme Court.
Under applicable constitutional provision, Supreme Court would not be justified in reversing case because of want of jurisdiction in the Chancery Court, if such were the case, on ground that complainants may have had an adequate remedy at law to enforce their alleged laborers' lien. Sec. 147, Constitution 1890.
3. Appeal — same — failure to transfer to Circuit Court — not reversible error.
Where Chancellor overruled demurrers to bill of the nature set out in Headnote No. 1 and thereby retained jurisdiction to try the case on its merits, failure to transfer case to Circuit Court was not reversible error, even if transfer had been requested.
Headnotes as approved by McGehee, C.J.
APPEAL from the chancery court of Adams County; F.D. HEWITT, Chancellor.
Suit by Eddie Hines, and others, workmen and employees of Eddie Hines, against J.K. Taylor, d/b/a Taylor Glass Company, and Busch Jewelry Company, nonresident defendants, and Messrs. Leon, George, Milton, and Lawrence Abrams, resident defendants, to subject funds in latter defendants' hands to complainants' claims, to determine which defendant was liable to complainants for work performed on resident defendants' premises, and for discovery as to the relationship between the parties and as to what funds of nonresident defendants were in hands of resident defendants. From a decree overruling the separate demurrers of the defendants to the bill of complaint, defendants were allowed an interlocutory appeal to settle the controlling principles in the cause, and to avoid expense and delay. Affirmed and remanded.
Brandon, Brandon, Hornsby Handy, Natchez, for appellants.
I. The averments of the bill of complaint must be construed most strongly against the pleader, and hence therefrom it is clear or must be held that the appellant J.K. Taylor was an independent contractor of the Busch Jewelry Company under a contract whereby he was to do the alleged renovation work, including the plaster work; and that Eddie Hines was a subcontractor under J.K. Taylor, and the other appellees, Frank Swazy and others, were laborer-employees of the said Eddie Hines. No privity of contract whatsoever is shown to have existed between the appellant Busch Jewelry Company No. 2, the lessee of the premises against which it was sought to enforce a laborers' or materialmen's lien under the provisions of Section 356 of the Mississippi Code of 1942. For such a lien to be asserted, the appellees must have brought themselves within the provisions of the statutes of this State. Citizens Lumber Co. v. Netterville, 137 Miss. 310, 102 So. 178; Herrin v. Warren, 61 Miss. 509; Hollis and Ray v. Isbell, 124 Miss. 799, 87 So. 273, 20 A.L.R. 244; Lake v. Brannin, 90 Miss. 737, 44 So. 65; Pincus v. Collins, 198 Miss. 283, 22 So.2d 361; Wenger v. First National Bank, 174 Miss. 311, 164 So. 229; Secs. 356-7, Code 1942.
II. The appellees failing, as they must, in their assertion for a mechanics' lien, they must wholly fail in this suit. Federal Land Bank v. Thames Lumber Supply Co., 160 Miss. 335, 134 So. 154; Smith v. Frank Gardner Hardware Co., 83 Miss. 654, 36 So. 9; Secs. 351, 360, 380, 2729-30, Code 1942.
R.L. Netterville, Natchez, for appellees.
I. This is an attachment in chancery against nonresidents giving the Chancery Court full and complete jurisdiction to render full and complete relief. Griffith's Miss. Chancery Practice (2d ed.), Secs. 483-90.
II. The bill of complaint filed requested a bill of discovery, and this discovery requested is sufficient equity to draw all features of the controversy herein into chancery for full, final, and complete relief. Griffith's Miss. Chancery Practice (2d ed.), Secs. 427-32.
III. The bill of complaint states that the complainants are not sure as to their exact relationship with the codefendants but that one of the two defendants, or both, are liable to the complainants. Therefore, equity assumes jurisdiction to require these defendants to come into court and present all facts of their relationship. Griffith's Miss. Chancery Practice (2d ed.), Secs. 173-4.
IV. No judgment or decree in any Chancery or Circuit Court rendered in a civil cause shall be reversed or annulled by the Supreme Court on the ground of want of jurisdiction by the lower court to render said judgment or decree. Canzeneuve v. Currell, 70 Miss. 521, 13 So. 32; Day v. Hartman, 74 Miss. 489, 21 So. 302; Dinsmore v. Hardison, 111 Miss. 313, 71 So. 567; Engleburg v. Tonkel, 140 Miss. 513, 106 So. 447; Woodville v. Jenks, 94 Miss. 210, 48 So. 620; Art. VI Sec. 147, Constitution 1890.
V. All causes that may be brought in the Chancery Court wherein the Circuit Court has exclusive jurisdiction shall be transferred to the Circuit Court, and not dismissed as requested by appellants. Boyett v. Boyett, 152 Miss. 201, 119 So. 299; Bradley v. Howell, 161 Miss. 346, 134 So. 843; Craig v. Woods, 190 Miss. 258, 199 So. 772, 200 So. 264; Eagle Lumber S. Co. v. Peyton, 145 Miss. 482, 111 So. 141; Grenada Groc. Co. v. Tatum, 113 Miss. 388, 74 So. 286; Layne-Central Co. v. Gulf Coast Ice Co., 171 Miss. 94, 157 So. 84; Murphy v. Meridian, 103 Miss. 110, 60 So. 68; Robertson v. F. Goodman Dry Goods Co., 115 Miss. 210, 76 So. 149; W. Horace Williams Co. v. Federal Credit Co., 198 Miss. 111, 21 So.2d 582; Art. VI Sec. 162, Constitution 1890.
VI. Personal service of process was had upon each defendant. Ford v. Mutual Life Ins. Co. of N.Y., 194 Miss. 519, 13 So.2d 45.
VII. Mechanics' lien.
This is an attachment suit in chancery under the provision of Section 2729, Code of 1942. The appeal was granted from an interlocutory decree whereby the demurrers of the appellants were overruled and the appeal granted to settle all the controlling principles of law involved, "and to avoid expense * * *."
It is alleged in the bill of complaint that the appellee Eddie Hines was employed to perform certain labor on a building at Natchez, Mississippi, which had been leased by the appellant Busch Jewelry Company No. 2, a Delaware corporation having an office, agents, and employees at Natchez, in Adams County, Mississippi; that the work was performed at the instance of the appellant J.K. Taylor, doing business as the Taylor Glass Company; that the appellee Eddie Hines had a number of workmen who assisted him in doing the work contracted for; that none of the men were paid for their services, and for which they are alleged to have been entitled to receive the sum of $842.75, less a credit of $125 thereon.
The complainants, Eddie Hines and others, further alleged that they had made demands upon both of the defendants for the payment of the sums due each of the complainants and that payment had been refused; that the defendant J.K. Taylor was a nonresident of the state, who lives at Birmingham, Alabama, and that he was completing said construction job at Natchez on the date of the filing of the bill of complaint, and was planning to return to the State of Alabama forthwith; that the complainants are not advised as to whether they were employed by Taylor as the agent and employee of the Busch Jewelry Company, or whether Taylor was an independent contractor; and that in the event he was an independent contractor, the said Busch Jewelry Company, then doing business in this state with an office, agent, and employees at Natchez, had funds in its hands belonging to, or was indebted to the said J.K. Taylor, doing business as Taylor Glass Company.
The bill further alleged that the complainants were entitled to a discovery as to the true relationship between the defendants, and are entitled to a discovery as to what funds the Busch Jewelry Company had in its hands belonging to its nonresident codefendant, or in what sum it was indebted to him.
Certain interrogatories are propounded in the bill of complaint to each of the defendants, the purpose of which was to require a disclosure as to which one of the defendants is liable to the complainants for payment of the sum due them for labor performed on the leased premises of the defendant Busch Jewelry Company.
(Hn 1) We are of the opinion that the bill of complaint contains sufficient allegations to confer jurisdiction upon the chancery court of this suit, and to require an answer from the defendants, both of whom were personally served with process, the summons having been served personally on J.K. Taylor, in Adams County, on the same day of the filing of the suit, and having been served upon the Honorable J.H. Thompson of Jackson, as agent of the Busch Jewelry Company No. 1 and 2, for the service of process in this state, and also upon two alleged agents of the said corporation in charge of its office in Adams County, Mississippi, there being no motion to quash the latter process on the ground that the service thereof upon the two named agents was ineffective because of their unofficial status.
Section 2729, supra, provides, among other things, that "The court shall give a decree in personam against such nonresident, absent or absconding debtor (alleged to be J.K. Taylor in the instant case) if summons has been personally served upon him, or if he has entered an appearance."
(Hn 2) Under Section 147 of the Constitution of 1890 we would not be justified in reversing the case because of want of jurisdiction in the chancery court, if such were the case, on the ground that the complainants may have had an adequate remedy at law to enforce their alleged laborers' lien. Day v. Hartman, 74 Miss. 489, 21 So. 302; Engleburg v. Tonkel, 140 Miss. 513, 106 So. 447; Dinsmore v. Hardison, 111 Miss. 313, 71 So. 567; Woodville v. Jenks, 94 Miss. 210, 48 So. 620; and Canzeneuve v. Currell, 70 Miss. 521, 13 So. 32.
If in the opinion of the trial court the case had been one to be tried more appropriately in the circuit court, which we do not decide here, the chancellor should have transferred the cause, instead of granting a request of defendants to dismiss the suit for want of equity jurisdiction. (Hn 3) In the instant case, the chancellor overruled the demurrers and thereby retained jurisdiction to try the case on its merits, and his failure to transfer the case to the circuit court does not constitute reversible error, even if he had been requested to transfer the same. Eagle Lumber and Supply Company v. Peyton, 145 Miss. 482, 111 So. 141; Boyett v. Boyett, 152 Miss. 201, 119 So. 299; Robertson v. F. Goodman Dry Goods Company, 115 Miss. 210, 76 So. 149; W. Horace Williams Company v. Federal Credit Company, 198 Miss. 111, 21 So.2d 582.
We are therefore of the opinion that the decree overruling the demurrers should be affirmed, and the cause remanded.
Affirmed and remanded.
Hall, Kyle, Arrington and Gillespie, JJ., concur.