I. B. Rowell & Co. v. Sandifer

91 So. 899, 129 Miss. 167

Opinion

Cook, J.,

delivered the opinion of the court.

This is an appeal from the decree of the chancery court of Bankin county in a suit which was begun by an attachment in chancery. Appellee, W. T. Sandifer, filed a bill of complaint against the Rockway Sales Company, of Atlanta, Ga., I. B. Rowell & .Co., of Waukesha, Wis., and the Alabama & Vicksburg Railway Company — the bill'of complaint alleging in substance that the complainant entered into a contract ivith the RockAvay Sales Company for the exclusive sale of Ford starters in certain Mississippi counties; that in accordance with the terms of this contract he purchased from the RockAvay Sales Company one hundred Ford starters and deposited Avith said company the sum of seven dollars and fifty cents on each starter, amounting in the aggregate to seven hundi*ed and fifty dollars; that only tAventy-six starters Avere delivered and the said Rock-Avay Sales Company has refused to deliver the remaining seventy-four starters, and has also refused to surrender his deposit of seven dollars and fifty cents on each of these undelivered starters, amounting to five hundred and fifty-five dollars; that the RockAvay Sales Company had shipped to Brandon, Miss., C. O. D., bill of lading attached, through I. B. RoAvell & Co., eighteen starters, and that the same Avere then in the hands of the Alabama & Vicksburg Rail-Avay Company at Brandon; that said shipment was made by I. B. RoAvell & Co., C. O. D., bill of lading attached, but in truth and in fact the RockAvay Sales Company made the shipment and is the OAvner of such starters; that if the RockAvay Sales Company is not the OAvner of these starters, then it is the representative of I. B. Rowell & Co., and the said I. B. RoAvell & Co. has an equitable interest in the five hundred and fifty-five dollars deposit which the RockAvay Sales Company holds and Avhich under the terms of the contract belongs to complainant; that under the terms of the contract the RockAvay Sales Company agreed to ship the starters from Atlanta, Ga., or Waukesha, Wis., as complainant’s option; that complainant ordered eigh teen starters to be shipped from Atlanta, Ga., but tliey were shipped from Waukesha, Wis., and as a result they were so delayed that complainant was unable to dispose of them, and on account of this delay he suffered a loss of profit on these machines amounting to five hundred and eighty-five dollars; that on account of defective starters Avhich were delivered, he sustained a loss of one hundred and nine dollars. The bill then prayed for a decree for the balance of the said deposit made bv complainant, and also prayed that the starters in' the hands of the Alabama & Vicksburg Railway Company be attached and sold to satisfy complainant’s demand, and the contract between complainant and the Rockway Sales Company was attached to the bill as an exhibit thereto.

The attachment was served on the railway company, thus binding the property of the nonresidents which was in its hands, and thereafter the chancellor entered a decree fixing the value of the starters and directing the railway company to deliver them to 1.- B. Rowell & Co. upon the execution of a forthcoming bond in double the value of the starters. I. B. Rowell & Co. executed this forthcoming bond, with the United States Fidelity & Guaranty Company as surety, conditional to return the starters, or in default thereof to satisfy any' decree of the court against the said RoAvell Company to the extent of the value of the property.

I. B. RoAvell & Co. demurred to the bill of complaint on the ground that the bill presented no ground of equitable relief against it, and that the exhibit to the bill showed that it was not a party to the contract for the breach of Avhich complainant was seeking relief. This demurrer was overruled, and it then filed a motion to quash the writ of attachment on the ground that no bond was filed before the issuance of the writ. This motion was likewise overruled, and thereupon it filed an ansAver, denying all the allegations of the bill, and averring that the starters levied on were its property, and that the only relation or connection it had with the RockAvay gales Company was a con tract to sell it Ford starters, at a fixed cash price. The Rockway Sales Company did not enter its appearance, and there was a decree pro confesso against it, and at the trial of the cause there was a decree against I. B. Rowell & Co. for the sum of nine hundred and ninety-one dollars and fifty cents, and also ordering the eighteen starters which had been in the hands of the railway company to be sold to satisfy the decree. This decree was entered at the September, 1920, term of the court.

Thereafter the complainant filed a petition against all the defendants in the original bill and also against the United States Fidelity & Guaranty Company, alleging in substance that the decree entered at .the former term against the I. B. Rowell Company, as it appears on the minutes of the court, is erroneous; that through inadvertence and mistake the decree as entered does not speak the truth, and is not the decree that was actually rendered and enunciated by the court; that the judgment and decree actually rendered by the court was against the defendant I. B. Rowell & Co. and the United States Fidelity & Guaranty Company, surety bn the forthcoming bond, but by inadvertence and mistake in entering the judgment and decree of the court a decree against the said surety company was not entered. This bill prayed that all the defendants be summoned to appear and show cause, if any, why the decree should not he amended to speak the truth and decree of the court, and that upon final hearing the court should enter the decree actually rendered at the former term. This bill or petition Avas returnable to the March, 1921, term of the court and, in response to process, I. B. Rowell & Co. and the surety company appeared and filed an answer denying all the averments of the bill.

At the trial of the issue made by this bill and answer, oral and documentary evidence Avas offered, and the chancellor entered the following decree:

“This day, this cause having come on to be heard on petition to correct judgment and ansAvers filed by I. B. Rowell & Co. and the United States Fidelity & Guaranty Company, defendants to this action, and the court haying documentary evidence and records of the court adduced in this case, and having heard oral testimony in the case, and being satisfied himself that relief should be granted in said petition, and the court being satisfied that a judgment and decree was rendered and enunciafied at the last term of the chancery court of this county, held in September, 1920, in favor of W. T. Sandifer, the complainant in cause No. 2477, against I. B. Rowell & Co. and the United States Fidelity & Guaranty Company, surety on I. B. Rowell & Co.’s bond, both defendants, for the sum of nine hundred and ninety-one dollars and fifty cents, and it appearing to the court from the evidence adduced in the case that said judgment, as rendered and enunciated by this court at the September term of 1920, was never entered on the minutes of this court in accordance with the judgment of the court: Now, therefore, it is hereby ordered, adjudged, and decreed that W. T. Sandifer have and recover of and from the defendants, I. B. Powell & Co. and the United States Fidelity & Guaranty Company, the sum of nine hundred and ninety-one dollars and fifty cents and all’ costs in this case, and that the same is hereby ordered now for then (nunc pro tuno) as the judgment and decree of this court as rendered at that term, for which and all of which let execution issue.”

From this decree these defendants prosecuted this appeal, and after the record reached' this court, upon motion of appellee, the stenographer’s notes of the evidence taken at trial at the September, 1920, term of court were stricken out. Under the allegations of this bill, and especially the alternative charges of paragraph six thereof, .that the starters shipped by I. B. Rowell & Co. were in reality the property of Rockway Sales Company, and, if not, then the Rockway Sales Company was merely the representative of I. B. Rowell & Co., and that the latter was interested in and liable for the money deposited by complainant as a part of the purchase price of the starters, we think this bill can be maintained, if supported by the proof, and that the demurrer ivas properly overruled.

In support of the contention that the motion to quash the attachment writ should have been sustained, counsel for appellants relies on the case of Advance Lumber Co. v. Laurel National Bank, 86 Miss. 419, 38 South. 313; but an examination of the facts in that case shows that it does not support appellants’ contention. In that case the bill alleged that the defendant Advance Lumber Company was a non-resident, and owned only personal property in this state, and the attachment was levied on this personal property belonging to the defendant. In that state of case the court held that the chancery court did not acquire jurisdiction, and that an attachment issued by the chancery court must show that the non-resident “has lands and tenements Avithin this state, or it must go against any such debtor and persons in this state as have in their hands effects of, or are indebted to, such non-resident, absent, or absconding debtor.” In the present case the bill joined in the attachment against the non-resident defendants the Alabama & Vicksburg Railway Company, which had in its possession effects of the non-residents, and there is no provision in the statute regulating attachments in chancery which required the complainant to give bond before the issuance of the attachment. Bonds v. Garvey, 87 Miss. 335, 39 South. 492.

The third and fourth assignments of error are based upon the admission of testimony and the sufficiency of the testimony to sustain the decree entered against I. B. Rowell & Co., but, since the stenographer’s notes of the evidence have been stricken out, the presumption that the evidence supported the decree and that the finding of the chancellor is correct must prevail.

Finally, appellant contends that: “The court erred in rendering the decree of March 29, 1921, against the United States Fidelity & Guaranty Company for the reason that it could not at a. subsequent term of the court enlarge its decree so as to include a surety not originally included therein.’

It is clear that the court could not at a subsequent term enlarge its decree by including provisions or terms not contained in the opinion and judgment of the court as originally rendered and enunciated, but such is not the case here. Upon a proper petition, and after a full hearing, the court entered a decree reciting that documentary and oral evidence and the records of the court having been’ offered, the court finds from the evidence that: “Said judgment as rendered'and enunciated by the court at the September term of 1920 was never entered on the minutes of the court in accordance with the judgment of the court.”

The power of every court of record to correct a judgment rendered at a former term, so as to strike out a judgment erroneously entered by mistake, and substitute for it the wholly different judgment actually rendered by the court, is settled by numerous cases in this state and by the authorities generally. In the case of Wilson v. Town of Handsboro, 99 Miss. 252, 54 South. 845, Ann. Cas. 1913E, 345, this power of the court is upheld in an opinion which elaborately discusses the subject, and in which many authorities supporting the views therein expressed are collected. The testimony upon the hearing of the petition to correct the decree in this case was sufficient to support the finding of the chancellor that by mistake the judgment actually rendered had not been entered, and therefore we do not think it was error to enter the corrected judgment or decree.

Upon the face of the corrected decree, hoAvever, there is manifest error. The decree was entered against the’United States Fidelity & Guaranty Company, the surety on the forthcoming bond for the full amount of appellee’s demand, amounting to nine hundred and ninety-one dollars and fifty cents. The bond executed by this surety was conditioned to have forthcoming, to abide the decree of the court, the property levied on by virtue of the attachment, or, in default thereof, to satisfy such decree to the extent of the value of such property. The value of the property was fixed by decree of the court at five hundred and eighty-five dollars, and the surety was only liable to satisfy the decree to the extent of five hundred and eighty-five dollars, and the decree against the surety should have been limited to that sum.

The decree of the court below will therefore be modified and decree entered here against the said surety for the sum of five hundred and eighty-five dollars; otherwise, the decree is affirmed.

Affirmed, as modified.