Summary
In Stirling v. Whitney National Bank, 170 Miss. 674, 150 So. 654, the demurrers to the bill of complaint were overruled and an interlocutory appeal was granted to settle the principles.
Summary of this case from Martin v. ReedOpinion
No. 30721.
October 30, 1933. Suggestion of Error Overruled November 27, 1933.
1. APPEAL AND ERROR.
Interlocutory appeal to "settle all controlling principles involved in cause" must be effective to furnish definite guide throughout case on merits thereof (Code 1930, section 14).
2. APPEAL AND ERROR.
Order overruling general and special demurrers to bill to set aside conveyances as fraudulent held not appealable under statute permitting interlocutory appeals to "settle all controlling principles involved in cause," especially where bill was clearly good as to some of defendants, and application of law was clear (Code 1930, section 14).
3. APPEAL AND ERROR.
Interlocutory appeal should not be allowed to "settle all controlling principles involved in cause," where principles applicable are clearly settled, unless in given situation difficulty of application arises (Code 1930, section 14).
4. APPEAL AND ERROR.
Appeals from orders overruling demurrers to amendable bills do not "settle all controlling principles involved in cause" within statute allowing interlocutory appeals (Code 1930, section 14).
5. APPEAL AND ERROR.
Rulings which involve matters of practice and procedure are not within statute allowing interlocutory appeals to "settle all controlling principles involved in cause" (Code 1930, section 14).
APPEAL from Chancery Court of Hinds County.
J.F. Barbour, of Yazoo City, and W.C. Wells, of Jackson, for appellants other than Chas. McG. Sweitzer.
The bill is multifarious.
Par. 206, Griffith's Miss. Chancery Practice; Clark v. Miller, 142 Miss. 124; Roberts v. State, 47 Miss. 257; Guest v. Strahan, 106 Miss. 1; Griffith's Chancery Practice, pars. 197-206.
The bill is a fishing bill.
Griffith's Mississippi Chancery Practice, secs. 173-176; 18 Cyc. 1067 et seq.; Boyd v. Swing, 38 Miss. 182.
Except as to Sweitzer, to make the defendant's answer the interrogatories, will result in a husband being forced to testify against the wife, or the converse. This is in clear violation of section 1528 of the Code of 1930, as construed in Leach v. Shelby, 58 Miss. 681, and Buckingham v. Wesson, 54 Miss. 526.
J.B. Stirling, of Jackson, for appellant, J.B. Stirling.
The allegations of the bill are so general, vague, indefinite and contradictory as not to admit of answer of the defendants, and not to charge such a case of liability against them as to require an answer.
Title v. Bonner, 53 Miss. 585; Miss. Chancery Practice, sec. 55.
The relief asked, based on the allegations of the bill, supported by the proof must be such as is warranted by both, else no such relief as asked will be granted.
Gwin v. Williams, 27 Miss. 334; LeBlanc v. Railroad, 73 Miss. 468; Spears v. Cheatham, 44 Miss. 71; Miss. Chancery Practice, sec. 58; Moore v. Lobin, 26 Miss. 308; Banks v. Phillips, 71 Miss. 54; Insurance Co. v. Scales, 71 Miss. 978; Toulmin v. Heidelberg, 32 Miss. 274; Miss. Chancery Practice, sec. 79.
Every pleading is construed most strongly against the pleader on the reasonable assumption that in his own interest he has stated his case as strongly and truthfully as he can, and so construed every pleading must state the material facts essential to its object, and it must not be argumentative nor contain opinions or conclusions or inferences.
Powell v. Stowers, 47 Miss. 581; Natchez v. Minor, 17 Miss. 569; Gibson v. Foote, 40 Miss. 788; Day v. Railway Co., 69 Miss. 592; Miss. Chancery Practice, sec. 82; Lumber Co. v. Newcomb, 79 Miss. 466; Barrier v. Kelly, 82 Miss. 232; Woodruff v. State, 77 Miss. 115; Nevitt v. Rabe, 6 Miss. 353; Burnet v. Boyd, 60 Miss. 635; Farr v. Farr, 34 Miss. 600; Miss. Chancery Practice, sec. 166, note 11, and sec. 172; Watts v. Patton, 66 Miss. 54; Calvit v. Markham, 4 Miss. 357; Smith v. Gill, 52 Miss. 609; Dunbar v. Newman, 46 Miss. 231; Miss. Chancery Practice, sec. 175; Smith v. Jassen, 105 Miss. 229.
The privilege of propounding interrogatories is no broader than the averments and charges made in the bill, and beyond the foundations so laid the defendant is not required to answer any interrogatory.
Miss. Chancery Practice, sec. 183.
The bill is merely and manifestly a fishing bill.
First National Bank of Meridian v. Phillips, 15 So. 29; George v. Solomon, 71 Miss. 168, 14 So. 531; Miss. Chancery Practice, sec. 429, note 17; Robinson v. Strouther, 106 Miss. 762, 64 So. 724; Griffith's Chancery Practice, sec. 430, notes 17 and 20.
The bill is multifarious.
Columbus Co. v. Humphries, 64 Miss. 258; Miss. Chancery Practice, secs. 197, 198 and 200; Henry v. Henderson, 79 Miss. 455; Miss. Chancery Practice, secs. 203, 204, etc.; Roberts v. Burwell, 78 So. 359; Fidelity Deposit Co. v. Wilkerson County, 106 Miss. 655.
There is no allegation in the bill that the rights of all the parties defendant rest on or spring from the same property but the bill alleges that rights of complainants arose out of several conveyances of different property to several different defendants by several grantors or conveying or interested in the same property, and some of the defendants are not declared even inferentially to have received any conveyance of any property.
Compress Co. v. Levy, 83 Miss. 774; Knight v. Upton, 159 Miss. 262; Robinson v. Strauther, 106 Miss. 754.
Bill of complaint is multifarious if it asks recovery on separate causes of action flowing from distinct sources, as to which some defendants are liable on one and not on other causes.
Clark v. Miller, 105 So. 502, 142 Miss. 123; 64 Miss. 258, 1 So. 232; Sherry v. Latimer, 103 Miss. 524, 60 So. 563, 642; Griffith's Chancery Practice, par. 201, page 197, par. 205, page 201, and par. 206, page 201; Code 1930, sec. 396; McNeill v. Burton, 2 Miss. 516.
In the instant case, redress and discovery is sought from the parties purchasing distinct parcels of property; from different defendants, at different times and prices; against some defendants there is no allegation that they purchased or acquired any property or had any transaction with the principle defendants or with one another, or that any of them had mutual interests in the same subject-matter.
Mary Jones v. Columbian Mutual Life Ins. Co., 160 Miss. 41, 133 So. 149; Jennings v. Brown, 98 So. 773.
The bill is not sworn to as required by law.
Miss. Chancery Practice, par. 189; 51 Miss. 882; 15 So. 141; 15 So. 40, 53 Miss. 500; 81 So. 653; 66 Miss. 495, 6 So. 244.
The bill is in violation of section 1529, Code of 1930.
Strauss v. Hudson, 104 Miss. 637, 61 So. 594; Byrd v. State, 57 Miss. 243, 34 Am. Rep. 440.
The bill for discovery is too vague.
Adams v. Griffin, 37 So. 457, 85 Miss. 1; Bergen v. Smith, 141 So. 760; Griffith's Chancery Practice, sec. 430; Ringold v. Goyer, 144 Miss. 706.
Oath to the answer being waived by the bill, it is insufficient to require discovery, or support injunction.
G.M. N. Ry. v. Hill, 127 Miss. 661, 90 So. 258; Dobson v. Hutchinson, 148 Miss. 640, 114 So. 738; Griffith's Chancery Practice, par. 365, page 370; Gregan v. Human, 46 So. 952, 93 Miss. 491; 105 So. 482, 105 So. 769; Adams v. Griffin, 37 So. 457, 85 Miss. 1; Bergen v. Smith, 141 So. 760; G. M.N. Ry. v. Hill, 127 Miss. 661, 90 So. 358; 44 Miss. 681, 90 So. 358.
J. Morgan Stevens, of Jackson, for appellant, Charles McGregor Sweitzer.
The bill affirmatively shows that appellees H.C. Stirling and J.B. Stirling were occupying the property as a residence at the time of the transfer and continued to occupy it, and complaint in the bill is attempted to be made of alleged sumptuous method of living therein. This conveyance, as shown on the face of the bill, was made January 17, 1931. Our statute expressly provides that exempt property, real or personal, may be disposed of by the owner, without subjecting it to liability for the debts of the owner.
Zurosky v. McIntyre, 93 Miss. 806, 47 So. 435; Orgill Bros. v. Gee, 152 Miss. 590, 120 So. 737; Miers v. Miers, 160 Miss. 746, 153 So. 133; Hodges v. Pickett, 67 Miss. 715; Willis v. Allen, 131 Miss. 264, 95 So. 435.
There is no statutory authority to require a part of the answer under oath, and the other part without oath.
Dodson v. Hutchinson, 148 Miss. 640, 114 So. 736; Griffith's Chancery Practice, sec. 364; Bergen v. Smith, 141 So. 760.
Fulton Thompson and Green, Green Jackson, all of Jackson, for appellee.
This is not a fishing bill.
Miss. Chancery Practice, sec. 173; Adams v. Conner, 73 Miss. 425, 19 So. 198; Miss. Compress Co. v. Levy, 83 Miss. 774, 36 So. 281; George v. Solomon, 71 Miss. 168, 14 So. 531.
In Mississippi Cotton Compress Co. v. Levy, 83 Miss. 774, 36 So. 281, it is held that where there is a showing of necessity for discovery and that there is no adequate remedy at law, and there exists a privity between the defendants, the bill is maintainable.
Delta, etc., Agency v. Interstate Mortgage Co., 112 Miss. 178, 72 So. 895; Robinson v. Strauther, 106 Miss. 762, 64 So. 724; Clark v. Equitable Society, 76 Miss. 22, 23 So. 453; Adams v. Conner, 73 Miss. 425, 19 So. 198; Compress Co. v. Levy, 83 Miss. 774.
The bill is not multifarious.
Miss. Chancery Practice, sec. 197; Darcey v. Lake, 46 Miss. 116; Thoms v. Thoms, 45 Miss. 276; Snodgrass et al. v. Andrews et al., 30 Miss. 472; Butler v. Spann, 27 Miss. 234; State, for Use of Coahoma County, v. Brown, 58 Miss. 835; Robertson v. Monroe County, 118 Miss. 548, 79 So. 187; Knight v. Upton, 159 Miss. 262, 130 So. 475.
The rights of all the parties to the instant litigation center in or spring from the property of General J.B. Stirling and Mrs. Hallie Carter Stirling and the chancery court has full jurisdiction to do complete justice between all the parties concerned. The bill of complaint alleges that with particularity the alleged interest assumed by each of the defendants in the respective kinds of property heretofore owned and possessed by General and Mrs. Stirling.
National Casualty Co. v. Hallam, 138 So. 572.
The bill is properly verified.
Sec. 746, Code of 1930; Buckner v. Ferguson, 44 Miss. 677, 681; Mitfords' Eq. Pl. 61; Story's Eq. Pl. 282, 288; Barbour's Chancery Practice, 106; State v. Marshall, 100 Miss. 626, 56 So. 792; Purvis v. Woodward, 78 Miss. 922, 29 So. 917; Section 415, Code of 1930; Miss. Chancery Practice, sec. 189; Campbell v. Knight, 109 So. 577.
Answer under oath as to discovery is not waived.
Griffith Mississippi Chancery Practice, sec. 364; Palmetto Fire Ins. Co. v. Allen, 141 Miss. 681, 105 So. 483, 769.
The discovery sought is proper.
Secs. 400 and 1548, Code of 1930.
We recognize, of course, that in making discovery the defendants are not necessarily giving depositions, but here the discovery is sought by propounding special interrogatories to the defendants under section 373, and we submit that the proper practice would be a motion, or the defendants might decline to answer those questions which were not proper for any of the reasons assigned.
18 C.J. 1077, "Discovery," sec. 41; Griffith's Chancery Practice, secs. 430, 432; Watts v. Smith, 24 Miss. 77; Bank v. Railway Company, 72 Miss. 453, 17 So. 7; Striplin v. M. O.R. Co., 152 Miss. 512, 120 So. 193; 1 Pomeroy Equity Jurisprudence (3 Ed.), sec. 201; 18 C.J. 1059.
If General and Mrs. Stirling have nothing pertinent to the present inquiry which they do not wish to conceal, we feel sure that both will be glad to consent for full discovery. The statute does not prohibit the making of discovery, but only does it prohibit where there is a failure of consent on the part of both husband and wife.
40 Cyc. 2353, 2354.
Communications or transactions between husband and wife in respect to purely business matters are not privileged, and so where one spouse has acted as agent for the other, there is no privilege as to communications respecting the subject-matter of the agency or facts learned in the course of agency.
40 Cyc. 2355; Sec. 1940, Code of 1930; Stickney v. Stickney, 131 U.S. 227, 9 S.Ct. 677, 33 L.Ed. 136; 40 Cyc., notes 27, 28, pages 2355 and 2356.
Transfer of homestead was fraudulent.
Zurosky v. McIntyre, 93 Miss. 806, 47 So. 435; Hodge v. Pickett, 67 Miss. 715; Willis v. Allen, 131 Miss. 264, 95 So. 435.
The bill of complaint is sufficient.
Griffith's Chancery Practice, sec. 501; Robinson v. McShane, 140 So. 725; Golden v. Goode, 76 Miss. 400, 24 So. 905; Ames v. Dorroh, 76 Miss. 187, 23 So. 768.
Appellees exhibited their bill in the chancery court against appellants to set aside several conveyances and other transactions which were alleged to be fraudulent, and all in furtherance of a common scheme or purpose of hindering, delaying, or defrauding appellees, who are alleged to be creditors. General and special demurrers were interposed by appellants, and upon the argument thereof all the demurrers, both general and special, were overruled, and an interlocutory appeal was allowed "to settle the principles of this case and to save expense and delay."
We are of the opinion that the appeal was improperly and improvidently allowed and that it must be dismissed. We are unable to see how this interlocutory appeal would save either expense or delay; but, to the contrary, it is plain to us that it has added to or produced both expense and delay. And it is equally plain that it cannot serve "to settle all the controlling principles involved in the cause," as our present statute, section 14, Code 1930, reads. In Liberty Trust Co. v. Planters' Bank, 155 Miss. 721, 124 So. 341, we went to the trouble to make a review of the subject of interlocutory appeals and to point out that our present revised statute means exactly what it says, that such an appeal does not lie to settle some or even most of the controlling principles, but must be effective to settle all the controlling principles of the case, and in such an adequate manner as to furnish a definite guide throughout the case, so far as the merits thereof are concerned. The bill is clearly good as to some of appellants, and even if not as to the others, as to which we express no opinion, a decision here as to those others would manifestly not settle all the controlling principles of the case but only a part of it.
Moreover, as stated, the bill is to set aside alleged fraudulent conveyances. There is perhaps no branch of the law wherein the controlling principles are better settled; and while it is true that the fact that the applicable principles are well settled does not of itself prevent an interlocutory appeal and that it is the law of the particular case that is to be settled, nevertheless such an appeal should not be allowed where the principles of law to be applied are already well and clearly settled unless, in the given situation, the difficulty of application makes the case the substantial equivalent of one wherein the principles have not been well and clearly settled. Griffith, Chan. Prac., p. 799. And such is not at all the case here. To give the statute on interlocutory appeals any other construction than that just stated, we would have to assume that the legislature, in enacting it, was of the opinion that the chancellors know so little of the well-settled principles of the law that they would be unable to apply those principles in the progress of the usual cases, arising in their courts, unless instructed by the supreme court, and we known that the legislature had no such opinion or purpose.
Again, as stated, there has been in this case only a bill and general and special demurrers thereto. Had the demurrers been sustained, the bill could be, and probably would have been, amended, thereby introducing further facts upon which further principles of the law would come into view. The demurrers were overruled, and when the answers come in there is no way now of knowing what additional matters of law would thus be introduced. Therefore, the language of this court in Carothers v. Bank, 158 Miss. 602, 131 So. 111, is squarely in point and must have been entirely overlooked by the trial court in attempting to grant an appeal in this case. That language is: "Appeals from amendable bills demurred to and the demurrer sustained or overruled do not settle all of the controlling principles of a case, and these cannot be known or determined sufficiently until the pleadings have been settled. If we entertained appeals to amendable bills from interlocutory decrees sustaining or overruling demurrers, it would result in delay and expense rather than save it."
We have stated that there were both general and special demurrers. The main arguments in the briefs have been upon the special demurrers, as, for instance, that the bill is multifarious; that it is vague, uncertain, and indefinite; that it is not properly sworn to; that it waives answer under oath and yet seeks to require answer under oath to the interrogatories propounded in the bill; that it seeks to discover irrelevant and immaterial matters, and to discover matters that are privileged; that the interrogatories call for answers as to matters which are as well within the reach of complainants as of defendants; and so on. Some of these objections appear to us to be well taken, as, for instance, the objection that the bill waives answer under oath and yet undertakes to obtain answers to the interrogatories under oath; at the same time, all these are purely procedural matters and their determination obviously would not settle all the controlling principles of the case. Rulings which involve matters of practice and procedure are not within the statute allowing interlocutory appeals, as we held in Love v. Love, 158 Miss. 785, 787, 131 So. 280, unless by the order or decree appealed from "money is required to be paid, or the possession of property changed," or where there is one of those rare and exceptional cases in which it is clear that to allow the appeal will "avoid expense and delay."
We must insist, and continue to insist, that these interlocutory appeals shall be controlled by the letter and intent of our recent, revised statute, enacted after long and unfortunate experience with previous statutes, which revised statute accords in its purpose with what was said in Bierce v. Grant, 91 Miss. 791, 797, 45 So. 876, 877, that except in cases coming strictly within the statute, it is "far wiser to develop the whole cause fully, thoroughly, and satisfactorily on the facts making the case, and, after a final decree on the merits of the cause thus developed, to then, by proper appeal, present the various questions reserved in the progress of the trial."
Appeal dismissed.