Humphrey's County v. Cashin

101 So. 571, 136 Miss. 476

• Court: Mississippi Supreme Court
• Decided: November 3, 1924
• Docket: No. 24380
• Status: Published

Opinion

Anderson, J.,

delivered the opinion of the court.

Appellant, Humphreys county, filed its bill for injunction in the chancery court of that county against J. M. Cashin and his wife, Eugenia C. Cashin, and S. Castleman and his wife, Pauline Castleman, by which it sought to enjoin Mrs. Cashin from prosecuting a mandamus suit against appellant, which she had instituted in the circuit court of Humphreys county, and praying relief in the alternative ag’ainst the Castlemans on an indemnity bond the latter had executed to the county. An injunction was issued and served according to the prayer of the bill. The first hearing in the court below was on motion of appellees the Cashins to dissolve the injunction on the taco of the bill. • This motion was sustained, and the injunction dissolved. The Castlemans answered the bill, making" their answer a cross-bill. Appellees Cashin demurred to the original bill, as well as the cross-bill of the Castle-mans. These demurrers were sustained and a final decree rendered, dismissing appellant’s original bill and the cross-bill of the Castlemans. Prom which decree, appellant prosecutes an appeal, and the Castlemans a cross-appeal. The case therefore stands upon the allegations of appellant’s original bill and the allegations of the cross-bill of the Castlemans, and the demurrers thereto.

The controlling* facts out of which the questions to be discussed arise are substantially as follows: In April, 292.1, the appellee J. M. Cashin obtained a judgment in the chancery court of Warren county against appellant, Humphreys county, in the .gum of three thousand five hundred dollars. Prom that decree appellant prosecuted an appeal to this court, where the judgment was reversed and the cause remanded. Humphreys County v. J. M. Cashin, 128 Miss. 236, 90 So. 888. The cause went back to the chancery court of Warren county, where there was another trial, resulting in a judgment in favor of appellee J. M. Cashin against appellant in the sum of two thousand dollars. On appeal to this court, this judgment was affirmed. Humphreys Cotmty v. J. M. Cashin (Miss.), 96 So. 316.

While that cause was pending in the supreme court on the first appeal from the judgment of three thousand five hundred dollars, appellee J. M. Cashin became involved in litigation with his former law partner Murphy. The latter had filed a bill against him in the chancery court of Humphreys county, asking a settlement of their partnership affairs and the appointment of a receiver to take charge of the partnership assets. On the hearing .of that cause, the court appointed a receiver to take charge of and wind up the affairs of the partnership. From that decree, appellee J. ;M. Cashin prosecuted an appeal to this court, with appeal and supersedeas bond in the sum of five thousand dollars. On appeal this court affirmed the decree of the court below. J. M. Cashin v. C. M. Murphy (Miss.), 90 So. 331; Id., 132 Miss. 834, 96 So. 747. The appeal and supersedeas bond given in that case was signed by cross-appellants S. Castleman and wife Pauline Castleman. Appellee J. M. Cashin induced cross-appellants to become his sureties on said bond by assigning to them as security ag’ainst loss thereon said judgment for three thousand five hundred dollars. Leaving off the date, signature, and acknowledgment, that assignment is in this language:

•'“Be it known, that I hereby set over, assigp, and convey unto S. Castleman and Pauline Castleman, the decree rendered in my favor v. Humphreys county, Miss., by the chancery court of Warren county, Miss., on the 19th day of April, 1921, for three thousand five hundred dollars, and authorize the said S. Castleman and Pauline Castle-man to collect the same in the event said decree be affirmed by the supreme court, liereb}7 authorizing them, or either of them, to use my name for that purpose, if that should be necessary.

“The condition of this assignment is that, whereas the said S. Castlemau and Pauline Castleman have this da.y executed as sureties, a supersedeas bond for me in the sum of live thousand dollars, in the case of C. M. Murphy v. J. M. Cashin, pending in the chancery court of Humphreys county, Miss., if they shall be required to pay any sum of money because of their becoming" sureties upon said bond, then they are to reimburse themselves out of the amount collected out of said decree and the balance, if any, they are to pay over to me. ’ ’

On the second trial in the chancery court of AVarren county of the case of appellee J. M. Cashin against appellant and the recovery of a judgment by the former against the latter in the sum of two thousand dollars, said appellee J. M. Cashin thereupon immediately assigned said judgment to his wife, appellee Eugenia C. Cashin, without consideration and with full knowledge on her part of the former assignment of said judgment for three thousand five hundred dollars to cross-appellants. The latter, conceiving themselves to be the owners of the said judgment ior two thousand dollars, by virtue of the assignment to them of said former judgment for three thousand five hundred dollars, demanded of appellant the pajment to them of said two thousand dollars. At the same time appellee Mrs. ■Cashin was demanding that said two thousand dollar judgpient be paid to her by virtue of her said assignment made on the day the judgment was rendered. Appellant, evidently agreeing with cross-appellants that they had the better right to the proceeds of the judgment, paid the amount of the same to them upon their entering into bond with sureties approved by the board of supervisors of the county to indemnify appellant against any loss it might suffer on account of such payment. Appellee Mrs. Cashin, proceeding on the theory that she had the better right to the proceeds of said judgment, instituted a.mandamus suit in the circuit court of Humphreys county against appellant to compel .the yiayment by appellant of said judgment to her. Appellant filed the original bill in this cause seeking to enjoin the prosecution by her of the mandamus suit, making her and her husband appellee J. IM. Cashin, and the cross-appellants Castlemani and wife, parties thereto claiming that the Castlemans had rightfully received the fruits of said judgment, and that appellee Mrs. Cashin was not entitled thereto, and asking in the alternative that if the court should hold to the contrary, a decree be rendered in favor of appellant against cross-appellants, on their said indemnity bond. The bill for grounds of relief set out substantially the facts stated above.

Cross-appellants answered the bill, making their answer a cross-bill, wherein they charged that it was the purpose of the parties to the assignment of said thrqe thousand five hundred dollar judgment to them, to assign therewith the cause of action on which it was based, and asking the reformation of said assignment accordingly if necessary. Appellees demurred to both the original bill and the cross-bill, which demurrers as stated were sustained, and both bills dismissed.

We will consider first the question whether the chancery court had jurisdiction of this cause, whether it is one of equitable cognizance. Appellant contends that the chancery court had jurisdiction under the facts of this case, to prevent circuity of action and a multiplicity of suits. In Roberts v. Burwell, 117 Miss. 451, 78 So. 357, it was held that, although separate and distinct causes of action wore involved, nevertheless they were properly joined in one cause in chancery, for the reason that the interests and liability of the defendants, though separate, “flow from the same fountain, or radiate from the same center, or have a common connecting link. ’ ’ The principles announced in that case were reaffirmed in Middleton v. Howell, 127 Miss. 880, 90 So. 725. In the opinion in the latter case in discussing this question, it was said among* other things:

“If the parties are left to separate actions, it is evident that it would result in several law suits to settle rights in which all have a common interest, they having a common source of title from common grantors, and each having rights affected by the matter in dispute, and it would certainty be in furtherance of justice to have all disputes growing out of the uncertainty of the boundary settled at one time, and eqriity is better adapted to secure justice in cases like this.”

The “connecting-link” between the parties to this cause is the two thousand dollar judgement in favor of appellee J. M. Cashin against appellant, and the assignment of the first judgment for three thousand five hundred dollars to cross-appellants, and the assignment of said two thousand dollar judgment by appellee J. M. Cashin to appellee Mrs. Cashin. This two thousand dollar judgment is the center from which all interests involved in this cause “radiate.” The mandamus suit of appellee Mrs. Cashin against appellant, in which they are the only parties, could settle nothing, so far as the rights of appellant and cross-appellants are concerned, g,rowing out of the assignment of the first judgment for three thousand five hundred dollars to the latter, and the giving by them of said indemnity bond to the appellant. Certainty at least two suits at law might have been necessary to settle the rights of the parties. If appellee Mrs. Cashin had gained her mandamus suit against appellant, then the latter in turn would have been forced to sue cross-appellants on said indemnity bond. In other words, the whole controversy ranges around the right to the proceeds of the two thousand dollar judgment. "We think it clear that the chancery court had jurisdiction.

The main question discussed in the oral argument as well as in the briefs of counsel is whether or not by virtue of the assignment by appellee J. M. Cashin to cross-appellants of the first judgment for three thousand five hundred dollars which was reversed and vacated on appeal, and on another trial a second judgment for: two thousand dollars obtained, cross-appellants became the owners of the cause of action on which the first judgment was based, and therefore entitled to the proceeds of the second judgment. Leaving out of view for the present the discussion of any results that follow, where a judgment assigned is reversed and vacated on appeal; the test books and the cases seem to be unanimous in holding that, by the assignment of a judgment, the assignee succeeds to all the rights, interests, and authority of the assignor, including^ the debt or claim on which the judgment was based, the' lien or security of the judgment on specific property, the right to stand in the assignor’s place, as regards the means of its enforcement, in fact all remedies and rights in reference thereto held by the assignor. 15 R. C. L., pp. 777- 778, section 230; 23 Cyc. 1419, 1420 ; 5 C. J., section 129, p. 951;. 2; Freeman on judgments, section 431.

The appellees concede that the authorities so hold, but they argue, and their position seems to be supported by one or two authorities, that, when a judgment assigned is vacated on appeal, the cause of action upon which it was based either goes back to or never has left the assignor ; in other words, that the assignee takes the cause of action on which the judgment was based, conditioned on it being a valid judgment, and that, where the judgment turns out to be invalid, the cause upon which it was founded has never left the assignor.

We are of opinion that appellant’s contention is supported by the greater number of authorities and the better reasoned cases. One of the leading cases on ,the subject is King v. Miller, 53 Or. 53, 97 Pac. 542. The opinion in that case reviews the authorities, and is exhaustive and able as to reasoning. In short the court held that, if a judgment is reversed after assignment, and the action is still pending, the assignee is the owner of the cause of action upon which the judgment was based, and may continue the prosecution of the cause to final judgment and thus enforce the claim upon which the assigned judgment was based. To the same effect is Brown v. Scott, 25 Cal. 189; 15 R. C. L., pp. 777, 778; 23 Cyc., pp. 1419, 1420; Black on Judgments, sections 948, 951, 952; 2 Freeman on Judgments, section 431.

We have carefully examined the two cases mainly relied on by appellees to sustain their contention. Conceding that they are in point, our judgment is they are unsound, and we decline to follow them. We hold, therefore, that, by virtue of said assignment to cross-appellants of the first judgment for three thousand five hundred dollars, which was vacated on appeal, they became the owners of the cause of action on which said judgment was based, and therefore, at least in a court of chancery, entitled to the proceeds of the second judgment, which was based on the same cause of action.

Appellees contend that cross-appellants, as sureties on the supereadeas bond of appellee J. M. Cashin in the receivership cause, have no right, conceding their claim thereto to be superior to that of appellee Mrs. Cashin, to collect said two thousand dollar judgment until it is shown that cross-appellants have been forced to expend some definite amount of money on account of their surety-ship. In other words, that liability was incurred and also discharged by said sureties. The solution of this question depends on the proper construction of the assignment of said judgment between appellee J. M. Cashin and cross-appellants. It seems plain from the language of the assignment that it was the purpose of the parties thereto that the title to said judgment should immediately pass from the assignor to the assignee, and that the latter should have the right to .collect the same in the event it was affirmed by the supreme court, where it was then pending- on appeal. In the first paragraph of the assignment this language is used:

"And authorize said S. Oastleman and Pauline Castle-man to collect the same in the event said decree be affirmed by the supreme court, hereby authorizing them, or either of them, to use my name for that purpose, if that should be necessary. ’ ’

And in the condition set out in the second paragraph of the assignment, it is provided that the assignees, out of the proceeds of the judgment collected by them, should reimburse themselves for any sum of money expended by them on account of becoming sureties on said supersedeas bond. By the affirmance of the receivership case by the supreme court, liability was fixed on cross-appellants as sureties. It is true that neither the original bill in this case nor the cross-bill sets out that cross-appellants as such sureties had expended any money; but both by the original bill and the cross-bill it is shown that liability had been fixed against the sureties on said bond to be thereafter ascertained. We hold that, under the provisions of said assignment, cross-appellants had the right to collect said judgment in full and account to appellees for any excess in their hands over and above a sufficient amount to discharge their liability as sureties on said supersedeas bond.

Appellees argue that mandamus proceedings cannot be restrained by injunction, and cite to sustain, that position 22 Cyc. 811. We-have examined the authorities listed in the notes to that citation, including Story’s Equity Jurisprudence, section 893. The principle is laid down by Story in this language: . .

- “There are cases-in which courts of equity will not exercise jurisdiction by way of injunction to stay proceedings at law in any criminal matters or in cases not strictly of a civil nature, as for instance they will not grant an injunction to stay proceedings on a mandamus, or on an indictment or information or writ of prohibition” — citing- 2 Yes. 396.

As we understand the authorities referred to, they do not treat of an injunction to stay a suit in mandamus, but of an injimction against the enforcement of a judgment recovered in mandamus. The principle is put upon the ground that mandamus is not strictly a civil proceeding. Such an action has criminal aspects so far as the enforcement of the judgment obtained therein is concerned. For illustration, resort to fine or imprisonment or both for contempt might be necessary in the enforcement of a judgment in a mandamus cause. The authorities relied on have no bearing on an injunction against the prosecution of a mandamus suit before judgment is obtained in the latter. ■We see no reason for any distinction between actions in mandamus and other causes not strictly criminal so far as enjoining their prosecution before judgment is concerned. We, therefore, hold that there is no merit in that contention.

We are of opinion that no other question argued calls for a discussion b}r the court.

Reversed and remanded on direct and cross appeal.