46 So. 625 | Miss. | 1908
delivered the opinion of the court.
On the 22d day of August, 1906, the East Hnion Lumber & Manufacturing Company and others filed a bill in the chancery court of Leflore county against the Chenoweth Lumber Company and C. W. Ohenoweth, J. D. O. Hammond, O. -S. Kennedy, and T. A. Gleason. The bill alleges that the above-named persons obtained a charter of incorporation under the laws of this state, incorporating themselves as the Ohenoweth Lumber Company, to be domiciled at Greenwood, Miss., in Leflore county. The authorized capital stock of the corporation was fixed by the charter at $20,000, in shares of $100 each. The charter authorized the. incorporators to begin business after $5,-
In view of the record in this case; we think that the decree against C. S. Kennedy should not have been rendered. It shows conclusively that there was no liability on the part of C. S. Kennedy to the complainants; and, this being the case, even though he had suffered a decree pro confesso to be taken against him, there should not have been any judgment final entered on this pro confesso. There was a direct connection between the defense of Hammond and Kennedy. In making his defense Hammond also proved conclusively that there was no liability on the part of Kennedy; and, this being the case, no decree should have been entered against Kennedy. It is not every case where the defendant suffers a pro confesso to be taken that will warrant a final judgment. A final judgment can never be taken where there are other codefendants making defense to the bill of complaint, and in making their proof they also disprove liability on the part of their eodefendants not answering. In such case no judgment should be taken against the defaulting defendant. This is the uniform chancery practice followed in this state and elsewhere. In the case of Simpson v. Smith, 75 Miss., 505, 22 South., 805, the court said: “Notwithstanding the decree pro confesso•, the final decree, and the failure of appellant to appear in the court below, if, on the whole case as presented here, it appears that the appellee was not entitled to relief, the decree must be set aside.” Minor v. Stewart, 2 How. (Miss.), 912; Kelly v. Brooks, 57 Miss., 225; Hargrove v. Martin, 6 Smed. & M., 61; Soria v. Stone, 66 Miss., 615, 6 South., 317.
It is argued by the appellees, however, that the authorities
The cause is reversed as to O. S. Kennedy alone, and affirmed in all other respects.
Reversed.