Payne v. Cowan

1 S. & M. 26

• Court: Mississippi Chancery Courts
• Decided: December 15, 1843
• Status: Published

Opinion

Chancellor.

These cases were submitted upon several motions made by either party.

1. To dissolve the injunction on the original bill as against the Planters Bank, because of the neglect of the complainants to have process served. I have repeatedly held, that the neglect of a complainant, in an injunction bill, to take out subpoena and have the same served in a reasonable time, is just ground for dissolving the injunction. But the rule proceeds upon the ground of negligence. Here process was duly sued out, and served; but the service was irregular and defective, and it therefore became necessary to take out a new subpoena, which seems to have been done as early as the complainants were advised of the defect in the service of the original one. There is nothing at least to show that their attention was called to it earlier than the notice given by this motion. The complainants appear to have done all their duty required, by taking out process and placing it in the hands of the proper officer ; and they cannot be made responsible in this way for his errors. The motion must be overruled.

2. The motion to take from the files the bill purporting to be a cross-bill by Nayler, Strother, and Redwood, is made upon the ground that they are not parties defendant to the original bill. This objection would certainly have been well taken upon demurrer But the complainants having treated it as a cross-bill by answering it, I think they cannot be heard at this stage of the case, and in this form, to make the objection. Whether any decree can be given on such a bill, is a different question, upon which I give no opinion, as I will consider it open for discussion at the final hearing.

3. The motion to suppress the depositions in the case must prevail. The commissioner states in the caption, and also in his certificate thereto, that they were taken on behalf of the defendants to the original bill; but it appears that the notice was given by counsel, not representing any of the defendants to that bill who were then in an attitude to take testimony. It is true, that the notice shows an intention to take them also under the cross-bill, but the complainants to the cross-bill, we have already seen, are not defendants to the original bill, and the depositions themselves show that they were only taken as between the parties to the original bill. John Cowan, who is a defendant to the original l?ill, appears to have been examined as a witness without any order for that purpose. In the case of Barden v. Gorman, 2 Molloy, Rep. 376, this was held sufficient ground for suppressing a deposition so taken. I have no doubt upon the point of practice. Let the depositions be suppressed.