Hiller v. Cotten

54 Miss. 551 | Miss. | 1877

Campbell, J.,

delivered the opinion of the court.

Notice of the hearing of a motion to dissolve an injunction when served on the solicitor of the complainant is as valid and effectual as if served on the party himself. Code 1871, § 2255.

Notice to the solicitor of the complainant of the hearing of a motion to dissolve an injunction is not rendered insufficient by a misdescription, in a matter which could not mislead him, of his client. Notice to the solicitor of the time and place of the hearing of the motion is the material matter. Accuracy in the designation of his client is immaterial, if there is no mistaking the cause to which the notice relates.

A motion to dissolve an injunction may be heard by the Chancellor in vacation, under § 1049 of the Code of 1871, in any county of his district, and is not required to be heard in the county in which the suit is pending.

The motion to dissolve the injunction in this case was on proper notice, and was properly heard in the county of Jefferson, and was rightfully sustained. There is no equity in the bill. It is wholly immaterial to the complainants whether Cotten released for a price the land on which he had a lien or not. If he had not released it, he could enforce his judgment against them; and his release of it did not affect them, nor his right as-against them. He had four sources of satisfying his judgment, and each was independent of the other. He relinquished his claim on one, and in doing so did no wrong to any of the others. They were not sureties or joint debtors. As between them there was no privity nor relation of any sort, except being the common debtors of the same creditor. The complainants have no claim on Cotten to apply the |1,000, paid him for a release of the land from his attachment, as a credit on his judgment. They did not pay it; and their creditor, the judgment debtor, did not pay it; nor was it paid by the trustees to whom the release was made, as a satisfaction pro tanto of Cotten’s demand in his attachment suit. It was the price received by Cotten from strangers to the attachment suit, for precluding himself from seeking satisfaction of his demand out of the land released, and taking the risk of obtaining it from other sources. It was as if a judgment creditor, with a lien on four separate tracts of land belonging to his judgment debtor, should for a consideration release one of them to a third person. The price paid in such a case is not a payment on the debt of the judgment debtor, but a compensation for the surrender of a right.

Cotten has the right to pursue all of the garnishees, but to obtain a single satisfaction of his judgment.

Decree affirmed.