Dreyfus v. Gage

79 Miss. 403 | Miss. | 1901

Whitfield, C. J.,

delivered the opinion of the court.

This appeal purports to be an appeal to settle the principles of the cause. But the decree plainly recites that the cause was ■ retained for the sole purpose of ascertaining damages due on the dissolution of the injunction. In effect, therefore, the cause was disposed of, and manifestly an appeal to settle the principles of a cause already settled is useless. We decline, therefore, to treat this as an appeal to settle the principles of the cause. But a decree was rendered dissolving the injunction, and an appeal has been prosecuted from that decree.

We do not think the appellant is shown to be barred by laches, under all the circumstances of the case. While the cotton was in the state, there was ample remedy at law. But when this bill was filed it had been sold and shipped out of the state to nonresident purchasers — Gage & Co. The proceeds were in the hands of the sureties on the replevin bond, to await the result of the replevin suit. If the landlord’s lien had not been waived, then these sureties were constructive trustees in iwoitum, of the proceeds of said cotton, and the nonresident defendants, Gage & Co., were out of the jurisdiction of our courts. The controversy is one as to the priority of liens between the mortgagees and the landlord. We think the court had jurisdiction, for these reasons, and, having jurisdiction, it was entirely proper to enjoin the replevin suit and draw to the chancery forum the whole matter for adjudication in one decree. The decree dissolving the injunction is reversed and the injunction reinstated, and so much of the decree as retains the •cause solely for the ascertainment of damages is also reversed, and the court below will proceed with the cause on its merits, and at the final hearing dissolve or perpetuate the injunction, as equity may require. We do not think, in the attitude of this case, we should do more now than this, since it is not an appeal to settle the principles of the cause. The questions of waiver, estoppel, etc., the court below will determine on the merits.

Decree aeeordÁngly.