101 So. 345 | Miss. | 1924
Lead Opinion
delivered the opinion of the court.
The appellee, Mrs. Monnie B. Lee, a resident citizen of the state of Tennessee, in her individual capacity and also as next friend and guardian for her child, William T. Lee, Jr., filed her bill in the chancery court of Washington county against her husband, William T. Lee, Sr., a resident citizen of the said county of Washington. Leaving off the caption and the first paragraph, in which the parties complainant and defendant are stated, the bill is in this language:
“Your complainant would further charge that by a decree of a court of competent jurisdiction, to-wit, the chancery court of the Thirteenth chancery division of the state of. Tennessee, complainant was granted a divorce from the defendant William T. Lee, and said defendant required to pay said complainant for the support of her minor child William T. Lee, Jr., the sum of twenty-five dollars monthly, beginning the 11th day of August, 1919, copy of which decree is filed herewith marked Exhibit A.
‘ ‘ Complainant charges that said monthly allowance of twenty-five dollars referred to above amounts now to the total sum of one thousand, one hundred and twenty-five
“Complainant alleges that the said defendant William T. Lee is'insolvent and the only property owned by him is an undivided one-seventh interest in a certain part of lot 2 of block 6 of the Third addition to the city of Green-ville, in said county, being that part of said lot 2 owned by Mrs. Jennie 0. Lee in her lifetime, from whom said defendant William T. Lee inherited his one-seventh interest, said property being particularly described in an exhibit hereinafter referred to, marked Exhibit-B, and having been sold and converted into cash as hereinafter alleged.
“Complainant charges that in a certain cause styled Carrie Bell Lyle et al. v. Hattie Lee Hughes et al., being numbered 7286 on the general docket of this honorable
“Therefore complainant prays that summons issue to said defendants, commanding them to appear and plead, answer, or demur to this bill, answer under oath being waived, at the June rules of this court, and that pending the said payment of said proceeds of said sale, nine hundred and fifty dollars cash, by said B. F. Wasson, Jr., as such commissioner, to said W. T. Lee, a writ of sequestra
The affidavit required by statute for a writ of sequestration was made, and the writ issued and served as prayed for in the bill. Appellant demurred to appellee’s bill and also made a motion to quash said writ of sequestration, which demurrer and motion were overruled by the trial court, from which decree appellant was granted an appeal to settle the principles of the cause.
Appellant contends that appellee’s bill states no cause of action against him because under the law since appellee was awarded the custody of their child, said William T. Lee, Jr., it was her duty to support the child, and not his duty; that the decree of the Tennessee court, divorcing appellant and appellee and requiring appellant to contribute twenty-five dollars per month for the support of the said child, being based alone on publication of notice to appellant as á nonresident defendant, is void as to that feature requiring the support of the child by appellant. The appellee concedes appellant’s position with reference to the decree for support, but contends that, nevertheless, the law is that where the decree of divorce awards the custody of minor children to the wife but makes no provision for their support, it is still the duty of the father to support them, and, if under those
There is some authority to the contrary, but the weight and the better reasoned authorities sustain appellee’s contention. The principle that where a father is deprived of the custody, society, and services of his child there is no liability on his part to furnish it a support, has no application to a case where the court granting the divorce has adjudged the father either unfit, or the mother more fit than he, to have the custody of the child. Certainly the father should not be relieved from the support of this child under the one or the other of those circumstances. -9 R. C; L., pp. 479 to 486, inclusive, pars. 295, 296, 297, and 301. We would not be understood as holding that there rests the absolute duty upon the father, under any and all circumstances, to support his children whose custody has been awarded to the mother in the decree of divorce, but we do hold that under such circumstances the common-law duty rests upon him to support them, unless there is some reason shown to the court why he should be relieved from that obligation. The principle involved is clearly stated in Ramsey v. Ramsey, 121 Ind. 215, 23 N. E. 70, 6 L. R. A. 682.
Appellee’s bill states a case against appellant which requires an answer. Unless there is some reason known to the law shown why appellant should not have supported his child for the period from the date of the divorce decree in Tennessee and the filing of the bill in this cause, appellee is entitled to recover from him whatever sums have been necessarily expended by her in that behalf.
Appellant contends that the gravamen of appellee’s bill is exclusively of legal and not equitable cognizance. Therefore the court below was without jurisdiction and the writ of sequestration ought to have been quashed and appellee’s bill dismissed. Under section 147 of the Constitution an appeal to settle the principles of the cause does not involve the question of jurisdiction as between
Appellant assigns further as error the action of the court in overruling appellant’s motion to quash the writ of sequestration. Appellee was appellant’s creditor. She sought by her bill to enforce payment of her indebtedness. Appellee alleged that appellant was execution proof except in so far as the fund in court derived from the sale of the property in which appellant had an interest, which would soon be distributed to the parties entitled thereto.
Section 539, Code of 1906 (section 296, Hemingway’s Code), provides for writs of sequestration for personal property in cases of attachments in chancery “as in other cases.” And section 562, Code of 1906 (section 322, Hemingway’s Code), provides that when a bill is filed in chancery, in reference to personal property, upon the making of the affidavit and bond required therefor, a writ of sequestration shall issue. And section 553, Code of 1906 (section 313, Hemingway’s Code), the statute authorizing a creditor’s bill before judgment and nulla bona execution, provides, among other things, that upon the filing of such a bill a writ of sequestration or injunction, or both, may be issued upon like terms and conditions as such writs may be issued in other cases, etc.
Independently of statute, a court of equity has jurisdiction when appropriate to issue a writ of sequestration for the seizure and preservation of personal property
We are of opinion that appellee was entitled to the writ of sequestration to impound and hold, until final decree of the court, the only assets belonging to appellant within the jurisdiction of the court.
Affirmed and remanded.
Dissenting Opinion
(dissenting).
I concur in what is said in the opinion in chief, except that on the motion to quash the writ of supersedeas, and am of the opinion, in which Judges Cook and Sykes concur, that the court below erred in not sustaining that motion. The claim sued on is a pure legal demand and the appellee does not and could not successfully assert any claim to or lien on the money which has come into the hands of Wasson, commissioner, by virtue of the sale by him of the property in which the appellant has an interest, consequently the case is not one wherein a writ of sequestration is authorized.
It is said in 35 Cyc. 1390, 1392, and 1399, with the support of a practically unbroken line of authorities, that:
“Inasmuch as the writ of sequestration, unlike attachment, is designed to protect a specific right of property, it is not available at the instance of an ordinary creditor, but issues only on the prayer of one claiming title to the
‘ ‘ The distinguishing characteristic of the sequestration process as a conservatory writ is that it issues only to protect a claimant who asserts either title to the property sought to be sequestered or a lien or privilege upon it. . . .
“Since the writ of sequestration, unlike that of attachment, issues in this class of cases only in behalf of petitioners who assert title sought to be taken into judicial custody, or a lien or privilege upon it, the affidavit for the writ should explicitly aver either ownership in plaintiff or a lien giving a special property right. ’ ’
The cases of Dean v. Boyd, 86 Miss. 204, 38 So. 297, and Lumber Co. v. Bank, 86 Miss. 419, 38 So. 313, are not authority for the issuance of the writ “for the seizure and preservation of personal property so that it may be subject to any final decree that shall be rendered in the cause,” in the absence of an assertion by the party at whose instance the writ is issued of an interest in or lien on the property. In Dean v. Boyd the writ was issued on the request of Boyd for the seizure of cotton on which he claimed and sought to assert a lien. Lumber Go. v. Bank, was an attachment in chancery under section 486, Code of 1892, in which the issuance of writs of sequestration are expressly authorized by section 489, Code of 1892, now section 539, Code of 1906 (section 296, Hemingway’s Code). The scope of the writ of sequestration was not enlarged by section 562, Code of 1906 (Hemingway’s Code, section 322), which provides that “when a bill is filed in the chancery court in reference to personal property” a writ of sequestration may issue. Dean v. Boyd, 86 Miss. 204, 38 So. 297. In order to be “in reference to personal property, ’ ’ a suit must be for the purpose of asserting some right to or interest in the property itself. Section 553, Code of 1906 (section 313, Hemingway’s Code), has no sort of application here, for the scheme there set forth is for the purpose of enabling
No question as to the propriety of the issuance of a writ for the impounding of money in the hands of a commissioner, appointed in another cause for the purpose of selling property, is raised by counsel for the appellant, and consequently has not been considered by the court.