May 10, 1954.
1. Appeal — interlocutory — dismissed.
Appeal from interlocutory decree dismissed by Supreme Court where such appeal would not settle all controlling principles involved in case.
Headnote as approved by Roberds, P.J.
APPEAL from the chancery court of Adams County; F.D. HEWITT, Chancellor.
Chas. F. Engle, R.L. Netterville, Natchez, for appellant.
I. The Chancery Court of Adams County erred in rendering the order restraining and enjoining appellant from further proceeding in the courts of the State of Arkansas to have the validity of her marriage in the State of Arkansas to Harrison Truman, deceased, adjudicated under the laws of the State of Arkansas, the said order having been allowed on the ex parte petition of Peter Vaughn, Jr., et al.
II. The Chancery Court of Adams County erred in proceeding forthwith to adjudicate the matter in issuing an injunction upon the ex parte petition of Peter Vaughn, Jr., et al.
III. The Chancery Court of Adams County erred in not dissolving the said injunction so issued, the motion to dissolve being based on her answer and demurrers and on the pleadings in the cause.
IV. The Court erred in rendering the decree upholding the injunction, making it perpetual and overruling the demurrers, general and special.
V. The Court erred in rendering a decree which restrained appellant, Livura Truman, a citizen of the State of Arkansas, from further prosecuting her proceeding in the courts of Arkansas to obtain a declaratory judgment under Act 274 of the laws of 1953 of the State of Arkansas.
Collation of authorities: Carpenter, Baggott Co. v. Hanes, 162 N.C. 46, 77 S.E. 1101; Davis v. Natchez Hotel Co., 156 Miss. 43, 128 So. 871; Jacks v. Bridewell, 51 Miss. 881; Sharp v. Learned, 182 Miss. 333, 181 So. 142, 182 So. 122, 188 So. 303, 14 So.2d 218; Waller v. Shannon, 53 Miss. 500; Sec. 383, Code 1930; Secs. 1148, 1294, Code 1942; Sec. 55-109, Arkansas Laws 1947; Act 274, Arkansas Laws 1953; 14 R.C.L., Sec. 119 p. 417; Griffith's Miss. Chancery Practice, Rule 58 p. 444; Marshall's Popular Guide to Modern Legal Principles, p. 493.
Henry Barbour, Yazoo City; Carl Chadwick, Natchez; Barnett, Jones Montgomery, Jackson, for appellees.
I. The motion of the Peter Vaughn group to dismiss this appeal should be sustained for the reason that this is an interlocutory appeal and Section 1148 of the Mississippi Code of 1942 does not permit an interlocutory appeal to be had except in cases where the order or decree requires money to be paid or changes the possession of property or settles all of the controlling principles involved in the case or avoids expense and delay, and the decree appealed from does not meet any of these requirements. Smith v. Atkinson, 193 Miss. 161, 8 So.2d 251; Sec. 1148, Code 1942.
II. The Court properly overruled the motion to dissolve the injunction.
A. Livura Truman elected to file this local action in this Court of competent jurisdiction, which has jurisdiction of the subject matter and of the parties, and this Court has the exclusive right to dispose of the controversy without interference from other courts. Grenada Bank v. Waring, 135 Miss. 226, 99 So. 681; McPike v. Wells, 54 Miss. 136; Martin v. O'Brien, 34 Miss. 21; Robertson v. Monroe Co., 118 Miss. 547, 79 So. 187; 21 C.J.S., Sec. 492 p. 745.
B. Where plaintiff has filed a suit in a court of competent jurisdiction, that court has the exclusive right to adjudicate all of the rights involved, and if plaintiff undertakes thereafter to file a second suit involving the same issue as involved in the pending suit, then the second suit may be abated by plea in the court where said second case is filed. Gully v. Matthews, 179 Miss. 579, 176 So. 277; Neely v. Martin, 193 Miss. 856, 11 So.2d 435; Peyton v. Vardaman, 103 Miss. 164, 61 So. 129; Shackelford v. New York Underwriters Ins. Co., 189 Miss. 396, 198 So. 31.
C. A court of equity has power to preserve and protect the jurisdiction of the court and its right to settle all disputed questions in one suit, and it has the implied power to do all things necessary to enable it to discharge the functions placed upon it by law. E.W. Montgomery Co. v. Gwin, 58 F.2d 779; Gaunt v. Nemours Trading Corp., 186 N.Y. Supp. 92, 194 App. Div. 668; International Paper Co. v. Bellows Falls Canal Co., 91 Vt. 350, 100 A. 684; Trippe v. O'Cavanagh, 203 Miss. 537, 36 So.2d 166; Von Bernuth v. Von Bernuth, 76 N.J. Eq. 177, 73 A. 1049; 32 C.J., Sec. 43 p. 63; 21 C.J.S., Secs. 87-8 pp. 135-6; 30 C.J.S., Sec. 11 p. 331; Griffith's Miss. Chancery Practice, Sec. 36 p. 40.
D. The chancery court in the protection of its jurisdiction over the subject matter, has the power to enjoin proceedings in another court. Ballard v. Ballard, 199 Miss. 316, 24 So.2d 335; Davis v. Natchez Hotel Co., 158 Miss. 43, 128 So. 871; E.J. Platte Fisheries v. Wadford, 170 Miss. 617, 155 So. 161; Equitable Life Assur. Soc. v. Gex's Estate, 184 Miss. 577, 186 So. 659; Fisher v. Pacific Mut. Life Ins. Co., 112 Miss. 30, 72 So. 846, 848; Miller v. Miller, 173 Miss. 44, 159 So. 112; Poole v. Miss. Publishers Corp., 208 Miss. 364, 44 So.2d 467; Sharp v. Learned, 185 Miss. 872, 188 So. 302; Sec. 1294, Code 1942; 28 Am. Jur., Sec. 204 p. 389; 21 C.J.S., Secs. 498, 554 pp. 760, 858; Griffith's Miss. Chancery Practice, Sec. 409 p. 423.
E. It was not necessary for the petition for injunction to allege that petitioners would suffer substantial and irreparable injury if the injunction did not issue. Newsom v. Federal Land Bank, 184 Miss. 318, 185 So. 600; Simmons v. Holmes, 49 Miss. 134; Trippe v. O'Cavanagh, supra; 27 C.J.S., Sec. 103 p. 690.
III. An injunction may be issued to restrain the removal of litigation from a forum and jurisdiction thereof to another forum and it is not essential that the element of irreparable damage should be in anywise involved. 43 C.J.S., Sec. 37(e) p. 471.
APPELLANT IN REPLY.
I. The motion of the appellees to dismiss this appeal should be overruled as this appeal is from a final decree overruling a motion to dissolve the injunction, all in compliance with Section 1147 of the Mississippi Code of 1942. Anderson v. Henderson, 103 Miss. 211, 60 So. 137; Thompson v. Wilson, 172 Miss. 766, 160 So. 388, 161 So. 153; Sec. 1147, Code 1942.
II. The appellees, Peter Vaughn heirs, were not parties to the declaratory judgment proceeding in Phillips County, Arkansas, and would not be affected by a decree of that Court; therefore, they have no right to enjoin Livura Kelly Truman from proceeding in a foreign court (the local court of her domicile) on litigation they are not a part of nor have an interest in. Davis v. Natchez Hotel Co., 156 Miss. 43, 128 So. 871; Folkes v. Central of Ga. R.R. Co., 202 Ala. 376, 80 So. 458; Hexter Title Abstract Co. v. Grievance Committee F.C.D., 142 Tex. 506, 179 S.W.2d 946, 157 A.L.R. 268; McCormick v. Chicago Yacht Club, 331 Ill. 514, 163 N.E. 418, 60 A.L.R. 763; Sec. 10, Arkansas Declaratory Judgment Act; 28 Am. Jur., Sec. 273 p. 447; 20 R.C.L., Sec. 8 p. 668.
III. The learned Chancellor erred, as a matter of law, in ruling that he had the power, or equity jurisdiction, to restrain a resident of the State of Arkansas from pursuing a declaratory judgment by a petition filed by residents of Missouri and Illinois and nonresidents of the State of Mississippi wherein the Declaratory Judgment Act was upon the marriage of the resident of the State of Arkansas, and that said issue was not submitted to the Chancery Court of Adams County, Mississippi, by the resident of Arkansas, but was invoked into the trial as an issue by the residents of Illinois and Missouri, who were intervenors into the suit filed by the resident of Arkansas requesting that the deed be cancelled because of fraud. Alabama Power Co. v. Ickes, 302 U.S. 464, 479, 82 L.Ed. 374, 378, 58 S.Ct. 300, 303; Ambursen Hydraulic Constr. Co. v. Northern Contracting Co., 140 Ga. 1, 78 S.E. 340, 47 L.R.A. (N.S.) 684; Bondies v. Glenn (Tex. Civ. App.), 119 S.W.2d 1095; Carpenter, Baggott Co. v. Hanes, 162 N.C. 46, 77 S.E. 1101; City of N. Vernon v. Voegler, 103 Ind. 314, 318, 319, 2 N.E. 821, 824; Fleming-Gilchrist Constr. Co. v. McGonigle, 338 Mo. 56, 63, 89 S.W.2d 15, 107 A.L.R. 1003; Folkes v. Central of Ga. R.R. Co., supra; Illinois Life Ins. Co. v. Prentiss, 227 Ill. 383, 115 N.E. 554; Lande v. Jurisch, 59 Cal.App.2d 613, 139 P.2d 657; McCauley v. Tierny, 19 R.I. 255, 33 A. 1, 37 L.R.A. 455; N.O. Brewing Co. v. Cahall, 188 La. 749, 178 So. 339, 57 A.L.R. 77, 115 A.L.R. 237; Price v. Price, 122 W. Va. 122, 7 S.E.2d 510, 122 A.L.R. 1088; West Va. Transp. Co. v. Standard Oil Co., 50 W. Va. 611, 40 S.E. 591, 56 L.R.A. 804, 88 Am. St. 895; Griffith's Miss. Chancery Practice, Secs. 35, 436 pp. 39, 458; Vol. I, Pomeroy's Equity Jurisprudence (5th ed.), Sec. 57 p. 73; Vol. I, Story's Equity Jurisprudence (14th ed.), Secs. 18, 19, 20 p. 18, et seq.
IV. It has been generally held that an injunction against the prosecution of an action in another state will not be granted at the instance of a nonresident. American Express Co. v. Fox, 135 Tenn. 489, 187 S.W. 1117, Ann. Cas. 191B, 1148; Bigelow v. Old Dominion Copper Mining Smelting Co., 74 N.J. Eq. 457, 71 A. 153; Southern Motor Express Co. v. Magee Truck Lines, 181 Miss. 223, 177 So. 653, 114 A.L.R. 1377; Wehrane v. Peyton, 134 Conn. 436, 486, 58 A.2d 698, 6 A.L.R. 2d 887; 28 Am. Jur., Sec. 208 p. 393.
V. Overruling the motion to dissolve and making the injunction perpetual was a grave inequity to appellant and irreparably injured and damaged her in her cause. Ambursen Hydraulic Constr. Co. v. Northern Contracting Co., supra; American Express Co. v. Fox, supra; American School Co. v. Saunder Co., 106 Fed. 731; Bank v. Railroad, 28 Vt. 470; Carpenter, Baggott Co. v. Hanes, supra; Carson v. Dunham, 149 Mass. 52, 20 N.E. 312, 14 Am. St. 397, 3 L.R.A. 203; Folkes v. Central of Ga. R.R. Co., supra; Greer v. Cook, 88 Ark. 93, 113 S.W. 1009, 16 Ann. Cas. 671; Griffith v. Langsdale, 53 Ark. 71, 13 S.E. 733, 22 Am. St. 182; Guggenheim v. Wahl, 203 N.Y. 390, 96 N.E. 726, Ann. Cas. 1913B, 201; Hawley v. Bank, 134 Ill. App. 96; Jones v. Hughes, 156 Iowa 684, 137 N.W. 1023, 42 L.R.A. (N.S.) 502; Wicks v. Caruthers, 81 Tenn. (13 Lea) 353; Anno. 69 A.L.R. 596; 43 C.J.S., Sec. 49 p. 501; A.L.I., Restatement of the Law (Conflict of Laws), Sec. 450 p. 534; Vol. I, Story's Equity Jurisprudence (14th ed.), Secs. 98-9.
VI. The injunction would prevent Livura Kelly Truman from defending her cause against a cross-bill of complaint filed by Fred Tillman in the suit in Phillips County, Arkansas.
On July 2, 1953, the Chancery Court of Adams County, Mississippi, granted a decree enjoining Livura Kelly Truman, the appellant, from proceeding in the courts of Arkansas, or elsewhere, except in the pending cause in Adams County, to have determined the legality of her marriage to Harrison Truman and her right to assert a claim to the property here in controversy as the heir of Harrison Truman, who departed this life intestate March 20, 1941.
The motion of appellant to dissolve that injunction was overruled. The chancellor granted an interlocutory appeal to this Court from that action on the theory that such appeal would settle all of the controlling principles involved in the cause pending in the Chancery Court of Adams County.
Motion has been filed here to dismiss the appeal to this Court on the asserted ground that the appeal does not involve, and the decision of this Court will not settle, the controlling principles of the pending cause in Adams County.
The motion is grounded in this state of circumstances: On August 10, 1949, Livura Kelly Truman, the appellant, and Essie Mae Truman Barr, both nonresidents of Mississippi, filed a bill in the Chancery Court of Adams County against Tom F. Head and a number of other defendants, in which complainants asserted that Livura Kelly Truman was the wife and Essie Mae Truman Barr was the acknowledged illegitimate child, and the two were the only heirs-at-law of, Harrison Truman, deceased, and, as such heirs, were the owners of an undivided one-fourth interest in 161.75 specifically described acres of land located in Adams County, Mississippi. The interest of Essie Mae Barr, it was asserted, depended upon whether the court should adjudicate her the acknowledged illegitimate child of Harrison Truman. If not, then Livura alleged she herself was the owner of the entire one-fourth undivided interest. The bill deraigned a one-fourth interest in the land into Harrison Truman, and which he owned at the time of his death. The bill then charges that defendant Head, in December 1947, through misrepresentation, deception and fraud, obtained from complainants deeds to their one-fourth interest in said lands; that subsequently Head and his grantees made conveyances to the other defendants, who were either parties to the fraud, or had notice thereof; that certain defendants had taken charge of the land and used it, and that oil had been produced therefrom in large quantities, and that complainants were entitled to have the deeds to Head and all subsequent conveyances set aside as clouds upon their titles to said one-fourth interest, and for an accounting for rents and their share of all oil which had been produced from said lands. They prayed for (1) a receiver; (2) for an accounting; (3) for injunctive protection; (4) that the deeds to Head and all subsequent conveyances be cancelled as clouds upon their interest; (5) that complainants be adjudicated to be the owners of a one-fourth undivided interest in said lands; or (6) if the court should hold that Essie Mae Truman Barr had no interest therein, then that Livura Kelly Truman be adjudicated to be the owner of said one-fourth undivided interest.
Livura Kelly Truman, by amendment to her bill, reasserted the charge of fraud by Head and those claiming through him, going more into detail than she did in her original bill as to the acts of fraud, and asserted that her deed to Head should be set aside for those reasons, and, further, because the consideration paid her for her deed was entirely inadequate. She asserted oil had been discovered upon the land, the proceeds of which had been received by certain of defendants, and again prayed for cancellation of her deed, for an accounting, etc.
The defendants to that bill answered, denying misrepresentation and fraud, asserted the validity of the deeds executed to Head by complainants; that defendants were innocent of any wrong in the procurement of the deeds; that the statute of limitations had run against complainants, that they were barred from challenging the validity of the deed; and that the defendants were the owners, in the respective interests set out, of the said one-fourth interest claimed by complainants.
Thereupon, Beulah Truman Winters and Eliza Truman Ross intervened in the suit, claiming that Livura Kelly Truman was not the lawful wife of Harrison Truman at the time of his death, and asserting that they were sisters of the half-blood of Harrison Truman and that they inherited his one-fourth interest in the land.
On August 22, 1951, Peter Vaughn, Jr., and six others, intervened in the cause, denying that Livura Kelly Truman was the wife and heir of Harrison Truman, but asserted that Peter Vaughn, Sr. was the next of kin and the heir of Harrison Truman; that Peter Vaughn, Sr. had departed this life intestate, and intervenors were his children and only heirs, and, as such, the owners of said one-fourth interest in the land.
Livura Kelly Truman took issue upon the facts asserted by Winters and Ross and the Peter Vaughn, Sr. group.
After all pleadings had been filed and a number of hearings had on the merits, including the testimony on behalf of the claim of Livura Kelly Truman, she, Livura, in June 1953, filed a petition in the Chancery Court of Phillips County, Arkansas, asking that court to enter a declaratory judgment finding that Livura Kelly Truman was the lawful wife and only heir-at-law of Harrison Truman at the time of his death. She did not make parties to this petition any of the defendants to her original or amended bill. She named as defendants Fred Tillman, Elizabeth Truman Ross and Beulah Truman Winters. When this Arkansas proceeding came to the knowledge of the other parties to the Adams County Chancery proceedings, the chancellor of that County, upon proper motion, granted an injunction enjoining Livura from prosecuting her suit in Phillips County, Arkansas. He later denied a motion to dissolve that injunction, from which action this appeal was taken.
(Hn 1) The granting in this cause of an injunction restraining prosecution of the Arkansas proceeding was an interlocutory decree. Section 1148, Miss. Code of 1942, authorizes the chancellor to grant an appeal from such decree in a case of this kind provided the appeal will "settle all the controlling principles involved in the cause." This Court has repeatedly held that the appeal will not lie unless it will settle all of the controlling principles involved in the cause. Love v. Love, 158 Miss. 785, 131 So. 280; Stirling v. Whitney National Bank, 170 Miss. 674, 150 So. 654; State Highway Commission v. Wood-ward, 195 Miss. 392, 15 So.2d 697; Lee v. Magnolia Bank, 207 Miss. 327, 42 So.2d 229. This appeal does not do that. Indeed, the only questions involved on this appeal are whether the Chancery Court of Adams County had the power to restrain Livura Kelly Truman from prosecuting her suit in Arkansas, and, if it had the power, whether this was a proper case for its exercise. None of the other several questions involved in the Adams County proceedings — that is, whether (1) Livura Kelly Truman and Essie Mae Truman Barr were the heirs of Harrison Truman; and, if not, who his heirs were; (2) whether the deeds complainants executed to Head were valid instruments; (3) whether the other defendants acquired an interest in the property even though the deed should be invalid as between the parties thereto; (4) whether complainants were entitled to a receiver; and (5) whether the statute of limitations and laches had affected the rights of complainants — are involved on this appeal, either as questions of fact or the legal principles applying to them. Therefore, the motion to dismiss the appeal is sustained.
Motion to dismiss appeal sustained.
Lee, Arrington, Ethridge and Gillespie, JJ., concur.