Ford v. Mut. L. Ins. Co. of N.Y.

Counsel

Rush H. Knox, of Jackson, for appellant. Section 375, Code of 1930, provides that when the process has been duly executed the defendant shall answer or demur on or before the monthly rule day next succeeding that to which such process is returnable, in default of which the bill may be taken pro confesso at any rule day thereafter or in term time. Section 379, Code of 1930, provides that pleas in chancery are hereby abolished and every defense heretofore presentable by plea shall be made in the answer. Under the positive provisions of these two sections the only thing that will prevent a decree pro confesso where process is duly executed is an answer or demurrer; the only way a plea may be made is by setting it up in the answer of the defendant. The statute makes no distinction among the various kinds of pleas, but embraces all kinds. If one sort of plea can be made, as before the section was adopted, in the form of a motion, then any such plea could be so made and thereby the section would be entirely nullified. The two sections must be read together and constitute but one provision of the law of chancery procedure. The plea in abatement challenging the jurisdiction of the chancery court in this cause was that in every sense of the word except in name only. It was sworn to. To avoid the force of the statute it was called by its author a "motion." It is the same old plea which the statute abolished, except as an integral part of an answer, by another name, to-wit, a motion. For the above reasons in themselves I contend that the motion of appellant to strike said "motion" from the file should have been sustained and not overruled. Even though said "motion" of appellee was irregular and constituted no answer or demurrer to the bill, it had to be stricken from the file on proper motion before a decree pro confesso could be taken. Griffith's Miss. Chancery Practice, Sec. 261. Appellee was not in such relation to this case as authorized it to make a special appearance for the sole purpose of challenging the jurisdiction of the court "and for no other purpose whatsoever," as it undertook to do in its said "motion," for the very reason that it was from the very first in court for all purposes by personal service of process on it through the insurance commissioner of the state, which service has the effect of authorizing the rendition of a personal decree against such insurance company. Aetna Ins. Co. v. Robertson, 126 Miss. 387 , 88 So. 883; Clark v. Louisville N.R. Co., 158 Miss. 287 , 130 So. 302 . Appellee did not occupy the position that apparently a nonresident defendant does who has been summoned by publication and appears specially and solely for the purpose of challenging the jurisdiction of the court. Weaver Grocery Co. v. Cain Milling Co., 117 Miss. 781 , 78 So. 769. Appellee's plea in said "motion" that it is authorized to transact business in this state, where it has agents for service of process, and appellant, therefore, has a plain and adequate remedy at law, can avail it nothing. Notwithstanding such facts, it is subject to attachment in chancery in this state as a nonresident. Aetna Ins. Co. v. Robertson, supra; Clark v. L. N.R. Co., supra; Southern Motor Express Co. v. McGee Truck Lines, Inc., 181 Miss. 223 , 177 So. 653 . Appellee pleaded in its said "motion" that the debt its co-defendant owes it represented by the loan note against the policy is not a debt due and owing to it within contemplation of the statute providing for attachments in chancery; in other words, that the thing which is a debt in its favor is not a debt at all, either principal or interest, as against it in favor of appellant, but if it is such a debt, appellant cannot take advantage of it as such because the company required her to sign also the loan note as assignee. A nonresident in an attachment suit in chancery pleading to the jurisdiction of the court will not be heard in such plea to allege non-ownership of the property levied on or to question the character of the indebtedness of its co-defendant to it. Weaver Grocery Co. v. Cain Milling Co., supra; Barrett v. Carter, 69 Miss. 593 , 13 So. 625. The position appellee takes that such indebtedness of said Elliott Parker is not really a debt such as falls within the contemplation of the statutes on attachment in chancery is highly strained and technical. But even should it be held that the debt of Elliott Parker is not a debt within the contemplation of the statutes on attachment in chancery, as appellee contends and maintained in the court below, still the court should not have dismissed the bill. Dollman v. Moore, 70 Miss. 267 , 12 So. 23; Aldridge v. First Nat. Bank of Birmingham, 165 Miss. 1 , 144 So. 469 . The court did not stop at quashing the writ and dismissing the bill, but actually ordered and directed the clerk to refund to appellee's co-defendant, Elliott Parker, the resident debtor of appellee, the $26.78 he admitted he owed as interest on appellee's loan to him, and that he had to pay now, and which he had paid into court with his answer. If the court was refusing jurisdiction of the cause, how could it order and direct anything to be done in it, especially by or to one not a party contestant? When the court quashed the writ, it should have retained the bill for final determination under the general equity powers and applied this fund in its hands as a credit on any amount found to be due by appellee to appellant, as held in the case of Dollman v. Moore, supra. The chancery court is not authorized to dismiss such suits but must either try or transfer them. Barrett v. Carter, supra; Constitution of 1890, Sec. 162. Wells, Wells, Lipscomb Newman, of Jackson, for appellee. We submit that counsel for appellant err in their construction of Section 375 of the Code of 1930, to the effect that no pleading can be filed by a defendant to a bill of complaint, except a demurrer or an answer. Section 389 of the Mississippi Code of 1930, which abolishes exceptions, expressly provides for motions in the place of exceptions under the former practice. See Griffith's Miss. Chancery Practice, Secs. 370-375. We are not citing said Section 389 as authority for the motion filed in the case at bar, but only to show that there are several other procedures open to defendants to a bill of complaint, other than answers or demurrers. The action of the court below in entertaining and sustaining the motion of defendant, The Mutual Life Insurance Company of New York, is well established. Griffith's Miss. Chancery Practice: p. 23, Sec. 22; Sec. 343; p. 349, Sec. 344; p. 413, Sec. 400; p. 419, Sec. 406; p. 516, Sec. 484. The only jurisdiction, if any, of the chancery court was the statutory jurisdiction under Section 173 of the Mississippi Code of 1930. Thus, we see that the complainant in this instance is attempting to obtain chancery jurisdiction by attaching an alleged indebtedness due to defendant, The Mutual Life Insurance Company of New York, by Elliott Parker. The motion shows that Parker was advanced the sum of $535.63 against his own policy by The Mutual Life. According to the terms of the contract, he could require these advances at any time when the cash surrender value of the policy was a greater sum than the advance desired. Under the terms of the insurance policy and the terms of the loan, Parker was not required to pay the money back. As a matter of fact, he has not paid it back yet. Nor could The Mutual Life Insurance Company of New York force him to pay it back. Nor is he required to pay the interest on the advance. According to the contract, if he does not pay the interest, the principal amount of the advance will be increased in that amount. All that a policy loan consists of is a charge against the policy in the amount of the loan — a set-off — and Parker can pay it back, or not, as he likes. Therefore, it is seen that this is not an indebtedness and that Parker is not a debtor as is meant by the statute. Love v. Fulton Iron Works, 162 Miss. 890 , 140 So. 528 ; Kearney v. Kearney, 178 Miss. 766 , 174 So. 59 ; Craig v. Gaddis, 171 Miss. 379 , 157 So. 684 ; Southern Pacific R. Co. v. A.J. Lyon Co., 99 Miss. 186 , 54 So. 728; Williams v. Union Central Life Ins. Co., 291 U.S. 170 , 78 L.Ed. 711; Board of Assessors v. New York Life Ins. Co., 216 U.S. 517 , 54 L.Ed. 597; In re Hirsch, 4 F. Supp. 708 ; Wagner v. Thieriot (N.Y.), 203 App. Div. 767 ; Rustin v. Aetna Life Ins. Co. of Hartford, Conn. (Neb.), 153 N.W. 548; Jansen v. Tyler et al. (Ore.), 49 P.2d 372 ; Baker v. General American Life Ins. Co. (Iowa), 268 N.W. 556 ; 26 C.J., Sec. 1; Black's Law Dictionary, "Debt," "Indebtedness," "Effects." The lower court did not err in dismissing the suit and ordering refund by the clerk of the $26.78 paid into court by Elliott Parker, instead of transferring the case to the circuit court. Advance Lumber Co. v. Laurel Nat. Bank, 86 Miss. 419 , 38 So. 313; Werner Sawmill Co. v. Sheffield, 89 Miss. 12 , 42 So. 876; Dollman v. Moore, 70 Miss. 267 , 12 So. 23; Griffith's Miss. Chancery Practice, Sec. 484. The effort of complainant to join her action for breach of written contract, evidenced by the policy of insurance, with an alleged tort, as set forth in the bill of complaint, cannot be sustained. Section 396 of the Mississippi Code of 1930 is broad in its scope but would not permit such joinder of tort and breach of contract in one bill of complaint. Such bill would be multifarious. Guess v. Strahan, 106 Miss. 1 , 63 So. 313; Nelms v. Brooks, 105 Miss. 74 , 61 So. 985; Marquette Cement Co. v. Fidelity Deposit Co., 173 Miss. 164 , 158 So. 924 .