In Milam, a chancellor died before an order was entered but after he had written out and sent to the parties copies of the opinion and ruling.Summary of this case from Vaughn v. Monticello Ins. Co.
April 26, 1948.
Successor chancellor properly signed and ordered entry of decree in accordance with written opinion and accompanying letter, both signed by chancellor, since deceased, and sustaining prayer of original bill.
APPEAL from the Chancery Court of Panola County.
J.B. Boyles, of Batesville, for appellant.
The successor judge was without power to sign a decree in this cause upon the written opinion or findings of the deceased chancellor.
The written opinion of the chancellor deciding the case on which successor judge signed decree is against the weight of the evidence and shows an abuse of discretion.
Appellant was entitled to have a copy of the proposed decree that the successor judge would be asked to enter attached to motion served on appellant, giving notice of time and place of hearing for entry of said decree.
The findings of the deceased chancellor show that the recovery sought by the executor against the appellant is for joint partnership property; and the decree entered by the successor judge is not full and complete and does not settle the equities in said findings, conceding that the successor judge had the power to sign the decree.
Gray v. Bryson et al., 87 Miss. 304, 39 So. 694; Todd v. Todd, 197 Miss. 819, 20 So.2d 827, 831; Berryhill v. Berryhill, 198 Miss. 759, 23 So.2d 889; Griffith's Mississippi Chancery Practice, p. 692, Sec. 614, p. 694, Sec. 615, p. 714, Sec. 625, p. 715, Sec. 626; 48 C.J.S. 1022, par. (c).
There should have been some showing in the pleadings of appellee, or by accountings, or by proof, of the condition of the estate he represented as to assets and debts before any judgment could be entered against the appellant.
The case should have been reopened by the successor judge to permit the evidence offered, or there should have been a trial of the cause de novo, as the successor judge was without power to sign the decree without a new hearing.
48 C.J.S. 1019, par. (a).
McClure Fant, of Sardis, for appellee.
The successor chancellor was authorized to sign the final decree, his predecessor's written and signed opinion having settled all issues in the suit.
Grant v. State, 189 Miss. 341, 197 So. 826; Brown v. Wesson, 114 Miss. 216, 74 So. 831; Smith v. Munger et al., 93 Miss. 627, 47 So. 676; Barrow v. Duplantis et al. (La.), 116 So. 568; Montgomery v. Viers, 130 Ky. 694, 114 S.W. 251; Hoffman v. Shuey, 223 Ky. 70, 2 S.W.2d 1049, 58 A.L.R. 842; Mass. Mut. Life Ins. Co. v. Hauk, 72 Ohio App. 131, 51 N.E.2d 30; Case v. Fox, 138 Or. 453, 7 P.2d 267; City of Clinton ex rel. Richardson v. Keen, 192 Okla. 382, 138 P.2d 104; Jordan Valley Irr. Dist. v. Title Trust Co., 154 Or. 76, 58 P.2d 606; Bartholomae Oil Corporation v. Superior Court of San Francisco, 18 Cal.2d 726, 117 P.2d 674; 30 Am. Jur. 750, Sec. 38; 48 C.J.S. 1019, 1020, Sec. 56, 56 (b); 54 A.L.R. 953, 954.
The evidence supports the deceased chancellor's finding that the late R.W. Milam did not make a gift to appellant of the two "cotton checks" and the "$4,000.00 Christmas Gift Check."
Appellant bore a fiduciary relationship to appellee.
Ham v. Ham, 146 Miss. 161, 110 So. 583; Meek v. Perry, 36 Miss. 190; Hitt v. Terry, 92 Miss. 671, 46 So. 829; Bourn v. Bourn, 163 Miss. 71, 140 So. 518; Watkins v. Martin, 167 Miss. 343, 147 So. 652; 2 Pomeroy Equity Jurisprudence (4 Ed.), Secs. 956, 957.
Appellee was not required to serve a copy of the final decree on appellant at the time the copy of the motion for the entry of said decree was served on her.
The appellee was authorized to have appellant's liability determined in this suit on the three checks in question without first being required to render an account unto her of the financial condition of decedent's estate.
Argued orally by J.B. Boyles, for appellant, and by James McClure, for appellee.
Appellee executor sued the appellant to recover for three items of money which the executor alleged belonged to the estate of his decedent but which had been converted by appellant to her own use. The prayer of the bill was that upon final hearing the court "will order and require the defendant to pay to complainant for said estate the aforesaid sums of $2,051.61, $1,103.79 and $4,000.00 plus interest on each of said sums as hereinabove set forth, and all costs herein." The case was fully heard at the regular July 1947 term of the Chancery Court and at the conclusion thereof the Chancellor by order duly entered took the case under advisement for "decision and decree in vacation". This was on July 29, 1947.
On August 30, 1947, the Chancellor signed an elaborate written opinion covering 10 typewritten pages of the present transcript, and, as customary in such cases, he sent a signed copy of the opinion to each of the solicitors engaged in the case. The opinion covered fully every issue of fact so far as well pleaded, or substantially embraced in the evidence, with his finding thereon and he concluded his opinion with the statement that he would sign a decree when presented in accordance with the prayer of the bill. The opinion was accompanied by a letter to each of the solicitors, and the letter concluded with the statement that the "prayer of the original bill will be and is sustained." Both the letter and the opinion were signed by the Chancellor as chancellor.
Before the solicitors for the executor had time to prepare and present to the Chancellor a decree in conformity to his written directions the Chancellor was suddenly overtaken by death. The decree as directed was signed and entered by the successor chancellor, after notice to all parties, and this action forms the ground for the chief complaint of appellant. We have examined the other grounds of her complaint and find none of them well taken.
There seems to be no case in our own books on the precise point mentioned. The authorities from other states, or sufficient of them, are reviewed in City of Clinton v. Keen, 192 Okla. 382, 138 P.2d 104, citing among others Case v. Fox, 138 Or. 453, 7 P.2d 267, cited and reaffirmed in Jordan Valley Irr. Dist. v. Title Trust Co., 154 Or. 76, 58 P.2d 606. In Case v. Fox, the circuit judge, who presided without a jury, signed findings of fact and conclusions of law in favor of the plaintiff on all issues and directed that the plaintiff take judgment stating the amount for which the judgment should be entered. Before the actual entry of the judgment the judge died and a judgment entered by his successor in accordance with the findings and directions of the deceased judge was upheld. Said the Court [ 138 Or. 453, 7 P.2d 269]: "The findings of a judge settle the issues of fact as conclusively as the verdict of a jury. Such being true, Judge Hewitt was as fully authorized to enter a judgment based upon the findings of fact and conclusions of law bearing Judge Stevenson's signature as he would have been to render a judgment based upon the verdict of a jury which had sat in Judge Stevenson's department," citing Hazard v. McAndrews, 18 Wn. 392, 51 P. 1064.
That rule meets with our approval, and we are of the opinion that the action of the successor Chancellor in signing, and ordering the entry of, the decree in accordance with the opinion and directions of his predecessor was correct.