86 Miss. 27 | Miss. | 1905
delivered the opinion of the court.
This suit originated in the chancery court of Rankin county, and complainants attack collaterally certain equity proceedings in the federal court by which a certain trust deed upon the property of the Vicksburg & Meridian Railroad Company was foreclosed, and sold to certain individuals who organized the Alabama & Vicksburg Railway Company, and the property passed from the purchasers at the sale into the possession of the last-
The demurrers to the bill raise, among others, two objections: (1) The state court is without jurisdiction, and cannot review or vacate the decree of the United States court; (2) the cause is barred by limitations.
If it be true that the federal court had jurisdiction of the subject-matter and of the necessary parties in the suits attacked by the complainants in this cause, the state court is without jurisdiction to entertain this bill. That the federal court had jurisdiction of the matter is not disputed, but the bill charges that there was a total failure to obtain jurisdiction of necessary parties; that publication made for the holders of the third mortgage bonds was void for the reasons that the pleadings in the case were not in proper form to authorize the court to make the order, that proper affidavit was not made to obtain the order, and that the publication was made for four weeks only. . The defects charged in the bill of complaint against the records in the federal court cases amount to irregularities only in the course of the judicial proceedings, and do not render the proceedings void nor the decree open to collateral attack. Irregularities in permitting amendments to the bill for the purpose of bringing in other parties, and the ordering of publication without formal affidavit, and the insufficiency of publication, as charged in complainant’s bill, must be remedied by direct proceedings in the court which tried 'the cause or by appeal to a
We think this suit is barred by limitation. More than ten years had elapsed from the time the right to bring the suit accrued and the filing of the bill of complaint. The bill shows that the Alabama & Vicksburg Railway Company took the property under adverse claim of right thereto, and has been continuously claiming the same ever since. Whether viewed as a bill of review, as a bill analogous to a bill of review, as a suit in equity for land, or as a bill to enforce an implied trust, the right, to sue is barred. The bill nowhere shows that complainants were actually ignorant of anything that was done in the federal court in the proceedings set out. It does not state they were ignorant of the decree made, or of the sale before its making, or of the transfer of the property to the possession of the Alabama & Vicksburg Railway Company, or of the claim of ownership by that company. Besides, the taking possession
The Vicksburg & Meridian Railroad Company, the Alabama. & Vicksburg Railway Company, and O. 0. Harvey, trustee, demurred to all the bill of complaint except that portion claiming first lien upon the certain lands described in Exhibits A and B to the bill. To that portion of the bill a plea was filed setting up the pendency of a suit in the chancery court of Rankin county involving the same parties and the same subject-matter. The sufficiency of this plea was, by agreement, submitted to the
The lower court correctly denied the application of complainants for a receiver.
Let the demurrers of the defendant to the original bill be sustained, with leave to complainants to amend their bill within thirty days after filing of the mandate to the lower court; else the bill will stand dismissed, except as to the rights of complainants against the lands under the lien securing the one hundred and twenty-seven third mortgage bonds, and as to the parties defendant interested in said lands. 'The sufficiency of the plea may be reheard by the lower court. Motion for receiver will be denied. The motion to consolidate this cause with the pending suit, mentioned in the plea, will be overruled.
Let the decree of the lower court be reversed,\ and this cause be remanded to be proceeded with in accordance with this opinion.
Judge Calhoon, having "been consulted while at the har touching this case, recused himself, and C. M. Williamson, Esq.., a member of the supreme court bar, was appointed and presided in this cause in his place.