Britton v. Beltzhoover, No. 26482.

No. 26482. | Miss. | Jun 13, 1927

^* Corpus Juris-Cyc. References: Appearances, 4CJ, p. 1339, n. 80, 85; p. 1344, n. 53, 57; Judgments, 34CJ, p. 263, n. 19; p. 266, n. 28; p. 305, n. 70; p. 307, n. 76, 78, 81, 83; p. 308, n. 84; p. 780, n. 13; p. 891, n. 96. Appellant, complainant in the court below, appeals here from a decree sustaining general and special demurrers to her bill as originally filed and subsequently amended. This bill was filed July 31, 1925, against appellee M.R. Beltzhoover, H.F. Byrne, Mrs. Ruth A.S. Wheeler, Mrs. Clara S. Claggett, Mrs. Vincie V. Campbell, Mrs. Reine G. Wells, and A.B. Learned, executor of R.F. Learned, and Jon Seiferth and other defendants, averring that she was a tenant in common of an undivided one-eighth interest in certain plantations and certain real estate in the city of Natchez described in the bill, and alleging that the property was in the possession of certain defendants, who claim to be the owner thereof. She alleges that in 1914 the Britton Koontz Bank, a corporation, filed suit in the circuit court of Adams county against the complainant and Mesdames Wheeler and Conner, sisters of complainant, and Sidney T. Stratton, administrator of the estate of Mrs. Eliza M. Britton, to recover eleven thousand eight hundred seventy-three dollars and forty cents alleged to be due said bank by the estate of A.C. Britton, a copy of the declaration in said suit being filed as an exhibit to the bill. She alleged that on October 8, 1914, a suit in attachment was filed; that plaintiff, Britton Koontz Bank, sued out a writ of attachment against appellant and Mrs. Eliza M.B. Wheeler, a copy of said proceedings being filed as an exhibit to the bill. She alleges that at the time of filing said attachment against her and Mrs. Wheeler, she was a nonresident, as was also her sister, Mrs. Wheeler, but avers and charges that the other two members sued in said suit were residents, and that they were sued as doing business under the firm name of "Estate of A.C. Britton;" that at the time of the suing out of said attachment, she was the owner, and in possession of, her undivided interest of all lands mentioned, and by virtue of the attachment so sued out, her property was sold thereunder by the sheriff on the 2d day of August, 1915, and conveyed by the sheriff to R.F. Learned and M.R. Beltzhoover, through whom the other defendants all claim.

She alleges that said attachment was void because she was a nonresident, and no jurisdiction of her personal property was acquired by the writ of attachment for the reason that the declaration filed showed that it was a suit against a partnership styled "Estate of A.C. Britton;" that said declaration shows upon its face that complainant was a member of said firm; and that Mrs. Mary B. Conner and Mrs. Ruth A.S. Wheeler were also members of said partnership firm, and were residents of the state of Mississippi, and that her sister, Mrs. Eliza M.B. Wheeler, was also a nonresident, and that the attachment was wholly void because nonresidency is not a ground for attachment against a partnership.

She further alleged that she employed an attorney for the purpose of having said case removed to the Federal court at Jackson, Miss., Adams county being in the territory constituting said district. It appeared from the exhibits to the bill that at the term at which the attachment was returnable, an order was granted allowing the defendants generally ten days in which to plead. The other defendants filed pleas, but, subsequently, withdrew them during that term of court, and, several days after that the attorney, she alleges she employed filed a petition for the removal of the cause, making affidavit therein that he was the attorney for the complainant and the other nonresident defendants, and claiming that there existed a separable controversy between his clients and plaintiffs. This petition for removal was denied by the circuit court, and no further steps were taken to appeal to this court, or to have it removed to the Federal court by certiorari or other means. No steps whatever were taken by complainant at said term of court, or afterwards, until the filing of this bill, which was more than ten years after said date. At the next succeeding term of court in Adams county, judgment was taken by default, sustaining the attachment issue and directing the property attached to be sold, and personal judgment was taken against appellant for said amount. Said land and property were sold under the attachment proceedings and were not sold under the execution issued on the personal judgment.

Appellant further alleged that after the ten-years had expired, she learned, for the first time, that there was a settlement and compromise between the other defendants in the attachment suit, by which their property was released; also that her interest in the property levied upon was worth at least twenty thousand dollars, and that it was sold for a little over six thousand dollars.

There is no denial of the fact that an attorney appeared for her in the attachment suit and filed a petition to remove the cause to the Federal court, and that said attorney was employed by her for that purpose.

We think the record shows a legal appearance by her in that suit; that it was her duty to use reasonable diligence to discover all her rights and to take appropriate steps to enforce her rights in the courts, and, if necessary, to file pleas and proceedings in such suits.

We think the showing made in the bill insufficient to excuse her from negligence in making proper defenses at that time in said suit. A party cannot sit idly by and let litigation go against him and afterwards seek to have same set aside, unless there is sufficient showing of fraud and deception by the parties to that litigation to excuse such lack of diligence.

It is insisted by appellant that the attachment proceedings were void because there was no publication for her as provided by the statute, as well as that said attachment proceedings were not authorized because it was a suit against a partnership. The declaration made an exhibit to her bill shows that it was very doubtful as to whether any partnership at all existed. It rather appears from the pleading that it was a suit against them as tenants in common. But the defendant appeared in court, and this defense should have been made at that time, and, if so, it might have been that the declaration would have been amended so as to more clearly show the right to sustain the attachment. Furthermore, it was not necessary to issue publication where a party voluntarily appears. The purpose of publication is to give legal notice constituting due process of law, so that parties may be enabled to come in and defend their rights, if any, in such suits. A voluntary appearance serves this purpose as fully and effectually as publication could. We think the appearance in court and the filing of a motion to transfer the cause to the Federal court is an appearance for all purposes, especially where there is no reservation in the petition for transfer, and when the petition was overruled the party was in court, and subject to all liability that a general appearance would give against him. The excuse set up in the bill for failure to assert her rights at that time is wholly insufficient at law. It appears the property has passed into the hands of third persons, and that more than ten years have passed since the sale was made under the execution, and that the statute of limitations has completely run against complainant.

We think, therefore, that the court below committed no error in sustaining the demurrers to the bill, and the judgment is affirmed.

Affirmed.