Cadenhead v. Estes, 99 So. 361

Cadenhead v. Estes

99 So. 361 | Miss. | 1924

Ethridge, J.,

delivered the opinion of the court.

*575Mrs. Cadenhead, the appellant, secured a decree for alimony against L. C. Cadenhead, her husband, in the chancery court of Perry county, Miss. The original decree required L. C. Cadenhead to pay alimony in the sum of ten thousand dollars and an additional alimony of two hundred fifty dollars per month for the support of herself and her son, and required Cadenhead to give bond to carry out the conditions of the decree and pay the said alimony. Later this bond was reduced by a decree of the court to three thousand dollars, and reduced the amount of cash alimony to be paid to one thousand dollars and the monthly alimony to one hundred fifty dollars and required Cadenhead to give bond to carry out the terms of the decree. Cadenhead tendered a bond signed by himself, appellees Estes and others, but the chancery clerk, who is required to approve the bond, being in doubt as to the sufficiency of the sureties, presented the matter to the chancellor for consideration, and the chancellor approved the bond for three thousand dollars conditioned to pay the one thousand dollars and the one hundred fifty dollars each month, and for the appearance of Cadenhead at the January, 1922, térm of the chancery court of Perry county, for the purpose of submitting himself to the jurisdiction of the court, etc., and directed that a cumulative bond for three thousand dollars signed by other sureties, be furnished by Cadenhead, conditioned like the first, but providing in the decree that the total liability under both bonds should not exceed three thousand dollars. Some of the sureties on these bonds lived in Forrest county, Miss., and some in other counties in the state — none of them appear to have lived in Perry county.

The present bill was filed by Mrs. Cadenhead in the chancery court of Forrest county, and set forth the decree above referred to, and the giving of the bonds, making copies of the decrees and of the bonds exhibits to her bill, and averring that the conditions of the said bonds had been breached, in that the moneys required *576by the said decree to be paid had uot been paid, and that by virtue of the giving of said bonds the said L. C. Cadenhead obtained his discharge from jail and regained his liberty, and further alleging that L. C. Cadenhead had not complied with the terms of the decree of the court, in that he had not paid said monthly sums of alimony for the months of September, October, November, and December of the year 1921, and in that he had not paid said monthly sums of alimony for any of the months of the year 1922, and that he did not pay before January, 1922, the sum of one thousand dollars required to be paid by the said decree, and has not paid the same at any time since; and that he did not appear at the said January, 1922, term of the chancery court of Perry county, as required by the decree of February 26, 1921, above referred to, and prayed for a judgment against the sureties on the said bonds and for further or general relief.

There was a motion filed by the defendants to transfer the cause to the circuit court, but this motion was not passed upon, and demurrers were filed by 'the several sureties upon the grounds that there was no equity on the face of the bill; that the complainant had adequate remedy at law; that the averments of the bill showed there would be no multiplicity of suits; and that the chancery court of Forrest county had no jurisdiction in aid of the chancery court of Perry county in enforcing its decrees in the cause between L. C. Cadenhead for alimony and the complainant herein, which demurrers were sustained by the court, and the cause ordered transferred to the circuit court of Forrest county, Miss.; but on application allowed an appeal sustaining the demurrer, for the purpose of settling the principles of the cause.

This appeal, therefore, presents for consideration the question as to whether or not the chancery court has jurisdiction to entertain a suit on a bond given in an alimony suit to secure the payment of alimony against the sureties signing said bond with the principal, and, if so, *577whether the chancery court of another county than that in which the decrees for alimony were rendered, but where the sureties on the bond, or some of them, live in other counties, may entertain said suit as ancilliary in aid of the original chancery court where the suit was first filed; or whether the suit on such bond is one purely of common-law jurisdiction, which the circuit court alone has jurisdiction to entertain, where the sum sued for is in excess of two hundred dollars.

The decrees made exhibits to the bill retain jurisdiction in court to enforce the judgments or make further orders therein.

Section 159 of the state Constitution provides: “The chancery court shall have full jurisdiction in the following matters, . . . namely: ‘b. Divorce and alimony.' ”

Section 162 of the state Constitution provides: “All causes that may be brought in the chancery court whereof the circuit court has exclusive jurisdiction shall be transferred to the circuit court.”

It will be noted that the last section uses the words “exclusive jurisdiction,” so that the case must be one where the circuit court has exclusive jurisdiction for the chancery court to justify transferring over the protest of the parties.

It will be seen by the provisions of section 159, above set forth, that the chancery court has full jurisdiction of the subject of divorce and alimony. The suit here is founded on a demand for alimony, which appears in the face of the bond sued upon, so the contract of the sureties in signing the bonds is one to secure the payment of alimony adjudicated by the court against the husband in favor of the wife. So we are clearly of the opinion that the chancery court of Perry county had full power, and jurisdiction to render judgment upon bonds given to secure the enforcement of the payment of alimony, and it could have brought all of the sureties on the bond before that court, and in that court have administered full *578and complete jurisdiction in rendering judgment against the sureties and awarding an execution thereon.

Inasmuch as the defendants, or part of them, lived in various counties, we think that the suit so brought is an ancilliary proceeding in that court to carry out the terms of bonds and decrees and secure the alimony adjudged to the complainant. This is not a suit of exclusive circuit court jurisdiction. If any court had exclusive jurisdiction, it was the chancery court. We think that bonds of this kind might be sued upon in either court. As viewed from one angle it is an agreement to pay alimony and to see that the conditions decreed for alimony are carried out. It is certain that the chancery court has jurisdiction in such cases, and we think it was error for the court to sustain the demurrers and transfer the cause to the circuit court. The judgment of the court below will therefore be reversed and demurrers overruled, and the cause retained, with leave to the defendants to answer within thirty days from the receipt of the mandate of this court in the court below.

Reversed and remanded.