185 So. 603 | Miss. | 1939
This suit was originally begun in the Chancery Court of Grenada County by the Franklin Life Insurance Company, an Illinois corporation, for the use and benefit of Jenkins Boyle, a co-partnership insurance agency at Clarksdale, Mississippi, and sought reimbursement on behalf of such insurance agency, under the equitable doctrine of subrogation, against Amos L. Rogers, Mrs. L.T. Hayden, D.K. Hayden and T.L. Guyton, defendants therein, on the ground that in the year 1934 the defendant Amos L. Rogers was employed by the Franklin Life Insurance Company as an insurance agent or solicitor, and as such was required to execute a bond conditioned for *187
the faithful accounting for all funds of said company coming into his hands and for the faithful performance of all his duties as such insurance agent; that the other defendants were sureties thereon; that the said Jenkins Boyle were required to and did endorse and guarantee said bond, and thereby also became sureties for the said Amos L. Rogers; and that said Rogers became in default for money belonging to the insurance company which came into his hands, and that the appellants Jenkins Boyd were required to and did pay the same to the insurance company, under their agreement to underwrite and guarantee said indebtedness. The bond referred to was filed as an exhibit to the bill of complaint, and it failed to show on its face that Jenkins Boyd had endorsed the same or otherwise become sureties thereon. Since the allegations of the bill were in conflict with the bond itself the exhibit controlled and rendered the bill of complaint subject to demurrer. No other separate instrument or obligation was filed as an exhibit so as to show that Jenkins Boyd were in fact otherwise liable to the insurance company to make good the alleged default of Rogers. A demurrer interposed by Rogers and his sureties, whose names appear on the bond, was sustained and the complainants appealed. The case was styled Franklin Life Insurance Company et al. v. Amos L. Rogers et al., and is reported in
In the circuit court the appellees here, Amos L. Rogers and the sureties on said bond, moved to strike from the files the declaration on the ground that the cause transferred from the chancery court was based upon the doctrine of equitable subrogation in favor of the usees, Jenkins Boyle, upon the allegation that they were required to pay, and had paid, to the insurance company the account aforesaid by virtue of their alleged suretyship on the bond referred to; and that the declaration alleges and sets up an entirely different cause contrary to and inconsistent with the cause presented in the chancery court. The motion to strike was sustained by the circuit court and the suit was dismissed with prejudice, after the appellant declined to plead further, and the order sustaining the motion and dismissing the suit recites that after having heard and considered the evidence the court found that the Franklin Life Insurance Company had by proper instrument of writing assigned, transferred, and delivered the bond and indebtedness sued for to the said Jenkins Boyle. The assignment is shown to have been made subsequent to the remand of the case by the Supreme Court to the chancery court, and appears in the record, reciting a consideration of $1 and other good and valuable considerations, receipt of which was acknowledged.
Section 766 of the Code of 1930 provides that: "When the papers have been deposited in the court to which the cause was transferred, all the parties to the proceeding shall take notice of the fact of the transfer; and the complainant or plaintiff shall file his declaration or bill in *189 the court to which the cause was transferred within thirty days, . . . and the cause shall be proceeded with as if it had been originally begun in that court, as of the date on which the cause was originally instituted."
Section 505 of the Code of 1930, provides that: "The assignee of any chose in action may sue for and recover on the same in his own name, if the assignment be in writing. In case of a transfer or an assignment of any interest in such chose in action before or after suit brought, the action may be begun, prosecuted and continued in the name of the original party, or the court may allow the person to whom the transfer or assignment of such interest has been made, upon his application therefor, to be substituted as a party plaintiff in said action. . . ."
We think that counsel for appellant, who represented Jenkins Boyle as the real parties in interest, are in error in assuming that the opinion on the former appeal held that the chancery court was without jurisdiction to grant relief. The cause was remanded to said court for further proceedings in order that Jenkins Boyle might obtain relief under a reformed pleading showing in what manner they would be obligated and required to pay the alleged default of Rogers. However, after the case was transferred to the circuit court, whether the transfer was proper or not, it was the duty of that court to proceed with the suit even though it may have been exclusively one of equitable cognizance; and the cause should have been proceeded with under Section 766 of the Code of 1930, supra, the same "as if it had been originally begun in that court, as of the date on which the cause was originally instituted."
The relief sought both in the chancery court and in the circuit court was to enforce the collection of the alleged default of Rogers, as represented by the account guaranteed by his bond, and which account and bond had been duly assigned and transferred to Jenkins Boyle when *190 the case came on for hearing in the circuit court in consideration of the full payment thereof to the insurance company by the assignee, as alleged in the bill of complaint; and the payment of which consideration the assignee was entitled to prove, if proof thereof was required, on the trial of the suit on the declaration, which was being maintained under Section 505 of the Code of 1930, supra, in the name of the assignor.
It is contended however that the declaration sued for the full amount of the alleged default, whereas the chancery court recovery could have been only for such an amount as Jenkins Boyle may have been required to pay, and which they may have actually paid, in settlement of their alleged liability to the insurance company. This contention overlooks the fact that the bill of complaint alleged, and the truth of which allegation must be assumed on the motion to strike, that this local state insurance agency had paid the full amount of the alleged default, and therefor the amount of recovery against appellees would be the same in each instance, if such allegation was in fact true.
It is again urged by appellees that in the chancery suit it would have been necessary for it to be shown that Jenkins Boyle had paid the debt of Rogers to the Franklin Life Insurance Company, whereas, it was required in the circuit court that the said insurance company should prove, as a condition precedent to recovery, that the debt had not been paid. The answer to this contention is in our opinion that so far as the liability of the appellees in either court is concerned the debt has not been paid at all.
In the case of Eagle Lumber Supply Co. v. Peyton et al.,
Moreover, under the case of McDowell v. Minor,
The action of the court below in sustaining the motion to strike the declaration and in dismissing the suit must be reversed and the cause remanded to be proceeded with *194 the same as if the suit had been originally begun in that court on the declaration which was erroneously stricken from the files.
Reversed and remanded.