Dodson v. Homan , 2 Miss. Dec. 11 ( 1881 )

Opinion.

Campbell, C. J.:

This cause proceeded to final decree in the court below, certainly against the wishes' and perhaps in violation of the instructions of the complainant. The property sold under the decree seems to have been sacrificed, and this grew in great measure out of the surprise operated upon all parties by the undesired prosecution of the suit. There is strong ground to suspect that the desire for a discontinuance of the litigation sprang from a scheme to defraud creditors. This however may not be true, and if it is not, the grossest injustice will be wrought by an affirmance. It is not perceived how any wrong will be done by ordering a re-sale of the property and giving an opportunity to litigate over the proceeds. If the complainant, Homan, is shown to be still the owner of the note sued on, the proceeds of the sale, or so much thereof as is necessary to satisfy his creditor, Spor (who is also the purchaser of the property), will go to Spor by virtue of his attachment and garnishment. If, on the contrary, it be shown that •complainant had sold the note sued on before the date of Spor’s .garnishment, it is not right for Spor to have the money. In any event, by a return of the purchase money paid by him he will be protected from loss.

The decree of confirmation and the decree distributing the purchase money and awarding a fee to the attorney of complainant is reversed, and cause remanded with instruction to the court below to enter an order refunding to Spor the purchase money paid by him with interest, the interest to be paid by defendant.

If a sale takes place under the decree of foreclosure, the money must be brought into court to be distributed as the court may direct, and of course it will be treated as belonging to complainant and subject to the garnishment, unless some third person intervenes and shows a better right to it. If no sale is procured by the complainant, Spor must file his bill to compel one by virtue of his rights under his garnishment.

Brief on motion of W. P. & I. B. Harris:

Spor is not a party to the suit. He makes his first appearance on the motion. He has not attempted to assert his title to the land —he has merely paid the purchase money to the clerk, and has let the matter take its course.

The statute does not authorize this court to order the attorney’s fee to be taxed in such a case. On those cases where such is authorized by statute, the record is plain, as the $50 attorney fee allowed on appeal from decrees overruling demurrers, and where decree is affirmed, etc., which is a penalty for taking an appeal in which there is no merit, and to prevent a practice often resorted to for delay simply. Laws relative to costs must not be interpreted as penal laws. Code 1880, § 2375.

The request for an attorney’s fee is unwarranted, and would be as unjust as it is unprecedented.

Spor does not figure in this record as a litigant at all. He appears from the proof to have been an attaching creditor of Homan. Homan does not petition the court to set aside the order of confirmation — he makes an affidavit to facts in support of Dodson’s petition, whereby it appears that the decree was obtained against his wishes and consent. This court and the court below refuses to allow Heidelberg $100 attorney’s fee.

We think as the decree now stands, full justice will be done all parties. There is nothing in the record by which this court would be authorized to declare Homan insolvent. All that appears in the record on that point is in the shape of statements which amount to mere conjectures in some of the affidavits filed by party opposing the motion to set aside the sale.

Should there be opinion that Spor is a party to the record, as appellee, we say that it is not our intention to attempt to saddle any costs upon him, but we certainly do think as to the other appellee judgment should stand.

Brief on motion, for purchaser, Spor, of L. Brame:

By his purchase, Spor submitted himself to the jurisdiction of the court and became a party to the suit. Coulter v. Harrod, 27 Miss. 685.

He, as an appellee in this court, was cited by service of process on his counsel, and his name is put down on the docket as a party. The order is that the appellant recover of the “appellees” the costs of this court. Homan is not the appellee. He is a mere figurehead. In fact, he and Dodson made a common fight from the first. They both petitioned the court to set aside the sale. If the order stands as it is, the result will be that Spor will have all the costs to pay. Homan is insolvent. Apart from the question of imposing terms as a condition for granting a re-sale, the court has full power in its discretion to tax either party with costs. These parties suffered Spor to purchase this property and pay his money without the slightest intimation of any irregularity, and this too when Dodson had a son at the sale and was himself living close by. The court has ample and undoubted power to order that the purchaser be placed in statu quo.

It is a mere matter of grace that a re-sale is ordered, not that these parties have any merit. This court has said in the opinion delivered in this case that there was ground to believe that Homan and Dodson had entered into a fraudulent scheme to defeat creditors. ' If there was no such scheme, certainly these parties were guilty of laches. They are responsible for the trouble. They should be made to pay for the music.

Spor is not here as a speculator. He is not on a raid. He was forced into this court in trying to protect his interests.

It is not sufficient that a judgment should be entered against Dodson, or Homan, or both, for they are insolvent. If terms are imposed, the court should require them complied with within a definite time as a condition precedent to granting a re-sale. Ins. Co. v. Oakley, 9 Paige, 264.

If Spor is not a party to the appeal, how does the court set aside the sale?

Opinion. — On Motion :

Motion denied as to attorney’s fee; denied also as to making prepayment of costs in court below a condition precedent to setting aside the sale. The costs of this court will be divided between Dodson and Homan, and tbeir payment will be a condition precedent to setting aside the sale. Costs in lower court to abide result of the suit. In all other respects the motion is sustained.