Opinion
No. 29598.
November 23, 1931.
1. COURTS.
Courts of justice cannot grant relief or give judgments in favor of those who do not ask their aid.
2. EQUITY.
Where evidence showed that conversion of mortgaged goods occurred before assignment of mortgage to substituted complainant, but no request was made to reinstate original complainant, court did not err in failing to substitute him.
3. COMMON LAW.
Fundamental principles cannot be set aside to prevent apparent hardship in particular case.
APPEAL from chancery court of Sunflower county; HON. J.L. WILLIAMS, Chancellor.
Forrest G. Cooper and Earl T. Thomas, both of Indianola, for appellant.
The rule that objections not made in the court below cannot be availed of in the supreme court does not apply if it be apparent that either the plaintiff has no cause of action or the defendant has no defense to any of the matters sued on.
Wilson v. A.G.S.R.R., 28 So. 567, 77 Miss. 714, 52 L.R.A. 357, 78 A.S.R. 543.
Even in a case where the defendant failed to file a cross-bill as they should, the appellate court treated it as though the proper pleading had been had in the court below.
Smith v. Strickland, 103 So. 782, 139 Miss. 1.
On an issue as to the validity of a tax title an objection that the tax deed did not contain the endorsements specifically and expressly required by the Code, might be made for the first time on an appeal, as such objections do not go to a mere irregularity.
McLemore v. Anderson, 43 So. 878, 92 Miss. 42, 47 So. 801, 92 Miss. 42.
If a correct result had not been reached there would have been a reversal on the ground of the prosecution of the suit in the name of the wrong complainant if the question was not raised in the lower court and only raised for the first time in the supreme court.
Fly v. King, Sheriff, 14 So. 465, 71 Miss. 537.
Where a bill was filed in the lower court which stated no cause of action, but no demurrer was filed to it and its legal sufficiency was not tested in any way in the lower court. On appeal for the first time the question was raised. The supreme court held that it was proper to raise it for the first time and the cause was reversed and judgment rendered dismissing the bill.
Pease Dwyer Co. v. Somers Planting Co., 90 So. 673, 130 Miss. 147.
It is apparent that since the question of having the right complainant as between the original complainant and the substituted complainant before the court was not a mere irregularity, but was one which went to the very vital question that even no formal motion was made in the lower court to ask the court to set aside the order of substitution still it is a matter of such vital concern as comes within the rule that it can be raised in the appellate court for the first time.
A decree rendered in the absence of an indispensable party will be reversed, and an objection of this character can be urged for the first time in the appellate court, or be considered by the court of its own motion.
Rawls v. Tallahassee Hotel Company, (Fla.), 31 So. 237.
Although the question of parties was not raised in the court below either by demurrer, plea, or answer, and has not been suggested in this court, if it plainly appears from the record, especially from the bill and exhibits, that there is a lack of necessary and indispensable parties, this court will notice the fact on its own motion and reverse and remand the cause, with leave to add such parties and for such other proceedings as may be conformable to law.
Florida Land Rock Phosphate Co. v. Anderson, 39 So. 392.
It became the duty of the lower court to set aside the order of substitution when his attention was called to the fact that the original complainant had the right to recover and the substituted complainant did not have such right.
Gabbart v. Wallace, 66 Miss. 618.
Moody Johnson, of Indianola, for appellee.
The court will never decide an issue of law or fact not disclosed by the record. Nor will the court consider any error, even if there is error, committed or invited by the party complaining.
The mere assignment of the debt and the mortgage by which it is secured is not an assignment also of the right of the mortgagee to sue for antecedent injuries or conversions. For such injuries the mortgagee may sue, for it is a wrong to him; and, since by our statute rights of action arising from torts may be assigned, we do not see why the assignee of the mortgage, if also the assignee of the claim against the trespasser, may not also sue. That question is not however presented, for the complainant is not the assignee of this collateral right, but only of the debt and mortgage.
Gabbert v. Wallace, 66 Miss. 618, 5 So. 284; Bowers v. Bodley, 4 Bradw. (Illinois Court of Appeals) 279; Overton v. Williston, 31 Penn. St. 155; Van Driel v. Rosierz, 26 Iowa 575; Kimball v. Steam Mill Co., 55 Maine 494.
Argued orally by Forrest B. Cooper, for appellant, and by C.C. Moody, for appellee.
The Sunflower Bank, having become insolvent, was placed in the hands of the superintendent of banks for liquidation. Among the assets of the said bank was a note of W.R. Early secured by a chattel mortgage on a large quantity of cotton seed located in the seed houses used in connection with the cotton gin commonly known as the Early Gin. This note and security was assigned by the superintendent of banks, upon approval by the chancery court, to the Merchants' Bank of Indianola, the decree confirming said assignment being of date June 14, 1930.
Soon thereafter, the superintendent of banks filed in the chancery court a bill alleging that appellee had, at divers dates preceding the date last above mentioned, bought from said Early all or the greater part of the said cotton seed covered by said chattel mortgage, and that although the said mortgage had been promptly recorded, and was on record during all the times of said conversions, appellee had failed to pay to the said insolvent bank or to said superintendent in full for said cotton seed. The prayer of the bill was for the recovery against appellee for the balance due on the cotton seed thus alleged to have been converted.
When the cause came on for trial, and apparently during the course of the trial, the said assignee, the Merchants' Bank, made a motion that it be substituted as complainant in the place and stead of the original complainant, the motion being made by the solicitor of record of the superintendent of banks, and thereupon the court made an order "that the Merchants' Bank Trust Company of Indianola be and it is hereby substituted as complainant in lieu of J.S. Love, Superintendent of Banks of the State of Mississippi, the original complainant." Thence the trial proceeded, and it being developed by the evidence that the conversions complained of occurred before the date of the assignment to the substituted complainant, and that the right to have, and to recover for, previous conversions of the mortgaged property was not contained in the terms of the said assignment, the court, acting under the authority of Gabbert v. Wallace, 66 Miss. 618, 5 So. 394, dismissed the bill, so far as said appellee and said alleged conversions were concerned.
It is not contended, as it could not well be contended, that the court was in error in so far as concerns any right to recover for the said conversions by the substituted complainant. But the contention is, on the part of the superintendent of banks, the original complainant, that as soon as the full situation aforesaid was developed, whereby the court saw clearly that the right of action was in the superintendent of banks rather than in the substituted complainant, the court of its own motion, and although not requested so to do, should have set aside the order of substitution, and thereupon ordered that the original complainant be brought back into the case as the actual complainant of record. No motion or request was made of the court so to do, so far as the record discloses, but the argument is that the court of chancery is vested with broad powers and is under generous duties to see to it, of the court's own motion, that causes are decided on their merits, and that justice be done in every case.
There is no doubt of the broad powers and of the generous duties of the chancellor in the respects just mentioned, but there are certain fundamental limitations upon the powers of all courts, and one of these is that courts of justice cannot grant relief or give judgments in favor of those who do not ask their aid. See Griffith Miss. Chan. Practice, secs. 29a, 30, 54, 58, 564. The only exception to this rule, and this is not a real exception, is in those cases where, in order to grant to complainant the relief which he has demanded and to which he is entitled, it becomes necessary in disposing of the entire case then before the court to grant relief to a defendant who has a right inseparable, so far as the particular case is concerned, from that of the complainant; but even this apparent exception does not apply when the complainant, who is before the court, is entitled to no relief. Id. sec. 616.
It follows therefore that, since no request was made of the court to reinstate the superintendent of banks as a party complainant, no error can be predicated upon the failure of the court so to do; and, although it may be unfortunate that the suit must be begun anew and the same or practically the same record again made up as now exists, save only as to parties, yet it is none the less true that fundamental principles cannot be set aside to meet the demands of convenience or to prevent an apparent hardship in a particular case.
Affirmed.