109 So. 854 | Miss. | 1926
Appellee was the owner of certain lots in the town of Moorhead, in Sunflower county, on which there was situated a residence. Appellant held a mortgage indebtedness *348 of something over two thousand dollars against the property, which mortgage indebtedness appellee had assumed to pay when he purchased the property. Appellee had the property insured against loss by fire. The policy contained a standard New York mortgage clause, which provided that, in case of loss by fire, payment of such loss by the insurance company should be made to the beneficiary in the mortgage as his interest might appear. The residence was damaged by fire. The loss was adjusted; the amount agreed upon being nine hundred twenty-two dollars and seventy-five cents. The insurance company, in view of appellee's ownership of property and the fact that appellant had a mortgage on it, issued a check for the amount of the loss payable to appellant and appellee jointly. The check therefore could not be realized on without the indorsement of both. Appellant refused to indorse the check, contending that he was entitled to the proceeds of the insurance policy; while appellee contended that he was entitled to such proceeds for the purpose of repairing the damage done the residence, which, he claimed, would restore it, so that appellant's security under his mortgage would be as good or better than it was before the fire damage. Appellee had appellant served with a copy of the bill in this case, and notice that at a certain time and place before the chancellor, in vacation, appellee would ask for a mandatory injunction commanding appellant to indorse the check in question. The parties appeared before the chancellor at the time and place fixed in the notice, and there was a hearing on evidence introduced by both sides, and a decree entered by the chancellor, commanding that the check be indorsed and turned over to the bank of Moorhead, and held by that bank for the purpose of paying for the repairs on the residence, as they progressed, on itemized, sworn bills therefor by the contractor making the repairs. The decree of the court required no bond of appellee as a condition precedent to the issuance of the injunction. At the time of the hearing, *349 appellant had not answered the bill, and, under the law, the time had not expired within which appellant was required to answer it. At the hearing, the evidence showed that the fire damage to the residence was being repaired and the repairs had progressed to some extent.
The decree of the chancellor, ordering that the mandatory injunction issue, was an interlocutory decree. A final decree could not have been rendered in vacation without the consent of the parties. The fact that appellant appeared and contested the issuance of the mandatory injunction was not equivalent to a consent that the cause be finally heard in vacation. A cause can be heard and determined in vacation only in the manner laid down by the statute or by the consent of the parties. The statute was not followed in this case, nor was the consent of both parties given. The decree rendered, therefore, could have been nothing more than an interlocutory decree authorizing a temporary injunction, and could have been set aside at a regular term of the court.
A preliminary mandatory injunction partakes of the character of final judicial process, and should never issue unless the right thereto be clear and certain. There must be no reasonable doubt of its propriety and "no probability that the defendant can make any valid objection to it, and no possibility that its justice can be controverted;" otherwise both sides must be heard before its issuance, and, even then, it should be refused except under extraordinary conditions. Mississippi Chancery Court Practice (Griffith); Montgomery v. Hollingsworth,
And in no case will such an injunction issue until bond has been given and approved, as provided by section 610, Code of 1906 (Hemingway's Code, section 370). Griffith's Mississippi Chancery Practice, section 448. Judge GRIFFITH, in the section referred to, states the principle in this language: *350
"Before any preliminary writ or order can have the effect of an injunction, by whatever name the writ may be called, it is essential that bond be required and be given; and, if it is not so done, the injunction is a nullity" — citing, in support of the text, Castlemen v. State,
We do not decide the question as to whether appellant or appellee was entitled to the proceeds of the check involved, or whether the chancellor erred in directing that the proceeds of the check be expended through the Bank of Moorhead (not a party to the suit) in repairing the fire loss on the residence, because, judging from the evidence before the chancellor, those questions may be moot when the case goes back. The insurance policy was not made a part of the record. Its provisions with reference to the rights of the parties to its proceeds are probably controlling. This court, following the well-established rules of appellate courts, will not decide questions unless their decision be imperative.
Reversed and remanded.
