Foote Patrick Co. v. Caladonia Insurance, 74 So. 292

Foote Patrick Co. v. Caladonia Insurance

74 So. 292 | Miss. | 1917

SteveNs, J.,

delivered the opinion of the court.

The learned chancellor seems to have been of the opinion that after an order transferring the garnishment issue was entered, it was incumbent upon appellant to file its bill within the thirty days prescribed by statute; that this provision of the statute, directing that the bill shall be filed within thirty days, is jurisdictional, and a failure to comply with the terms of the statute in this regard took away the jurisdiction of the chancery court. We do not interpret the statute so literally. When a cause is transferred from one court to the other, it is the order of transfer that invests the court to which the case is transferred with jurisdiction. The statute expressly says that the cause “shall be proceeded with as if it had been originally begun in that court, as of the *427date on which the cause was originally instituted. ” It is a pending cause all the while, and as soon as the order of transfer is entered, the court to which the case is transferred thereupon has jurisdiction of the case and may proceed in .the manner outlined by the statute. In this instance the chancery court had jurisdiction of .the garnishment issue by virtue of' the order entered by the circuit court; and the requirement that a bill be filed within thirty days is for the purpose of reframing the pleadings to Conform to the practice in the chancery court.

The time within which this bill should be filed could have been extended by the chancellor of the court then having jurisdiction of the cause. The provision that the bill should be filed within thirty days is certainly not a statute of limitations, and the failure to file the bill within the time prescribed could not be said to be a jurisdictional omission or defect. It does appear that appellant filed its bill within thirty days after the papers had actually been deposited with the chancery clerk. There was considerable delay on the part of the circuit clerk in depositing the papers with the chancery clerk. In the disposition of this case it is really unnecessary for us to say whether appellant should have filed its bill within thirty days of the date of the order of transfer, or within thirty days from the date the papers were deposited in the chancery court. The statute appears to direct that the bill should be filed within thirty days after the papers have been deposited in the court to which the case was transferred. It expressly provides that all parties shall take notice of the fact of the transfer “when the papers have been deposited in the court to which the cause is transferred.” This is followed by a provision that the complainant or plaintiff shall then file his declaration or bill within thirty days — presumptively, within the thirty days from time they are required to take notice of the transfer.

There is here no question raised about the sufficiency of the bill. The ruling of the trial court was based upon *428a motion to dismiss, and not upon a demurrer. The bill appears to be sufficiently definite in its allegations of fraud, and directly attacks a judgment charged to have been rendered in a collusive suit by Tibbetts and Whitney against appellee. It is elementary that the chancery court has general jurisdiction of fraud; and inasmuch as the charges of fraud are very sweeping, and that Tibbetts and Whitney are brought in as parties defendant, it would appear that the bill here dismissed could well be sustained as an original bill in equity, regardless of whether the garnishment had been properly or improperly transferred. We, however,- see no objection to the transfer of the garnishment issue in this case. The answer of the garnishee is not incorporated in the récord, but from a motion filed by appellant, asking for the transfer, it is stated that the amended answer of the garnishee attempts to set up the adjudication of issue between the garnishee and Tibbets and Whitney, and in overcoming this judgment of the circuit court acquitting appellee of liability, appellant could only attack the judgment on the ground bf fraud and collusion. It was error to dismiss the bill of complaint. Accordingly, the decree of the lower court will be reversed and the cause remanded, with directions to appellee to answer the bill within thirty days after receipt of mandate by the clerk of the court below.

Reversed and remanded.