Opinion
No. 40001.
March 5, 1956.
1. Injunctions — perpetuation of testimony — injunction against — properly granted — statutes — affidavit — application — inadequate.
Injunction against taking testimony of witnesses for perpetuation purposes respecting contemplated suit or suits against bank and others in sum totalling $500,000 was properly granted, where study of affidavit and application originally filed showed that it did not comply with statutory requirements. Sec. 1714, Code 1942.
2. Depositions — right to perpetuate testimony — general rule.
Except where right to perpetuate testimony is absolute, the preservation of evidence by depositions is not favored, and application to perpetuate testimony will not be allowed unless some proper ground for it exists at the time, and it appears that the testimony is material and will be competent evidence, and that the deposition is necessary because of danger that the testimony may be lost or delayed, or unless it is necessary to prevent failure of justice.
3. Depositions — application to perpetuate testimony — order not granted when.
Application to perpetuate testimony must be made in good faith, and the granting of order for perpetuation of testimony is improper where it is sought solely to enable plaintiff to frame the complaint, or to perpetuate testimony as to trivial matters, where a person will be enabled thereby to shield himself from the consequences of his own wrongdoing, or where there is no reasonable ground to believe that evidence desired cannot be obtained at the trial.
4. Equity pleading — cross-bill raising entirely different matter — demurrable.
Where original bill seeking injunction against the taking of testimony for perpetuation purposes raised question of failure to comply with statute, demurrer to cross-bill and amended cross-bill seeking to raise entirely different matter and an entirely different subject was properly sustained.
5. Equity pleading — cross-bill — subject matter of.
The subject matter of a cross-bill should pertain to matter appearing in the original bill, and since a cross-bill is auxiliary to the original bill and is dependent thereon, and a possible future controversy should not be the subject of a cross-bill.
Headnotes as approved by Hall, J.
APPEAL from the Chancery Court of Lauderdale County; WILLIAM NEVILLE, Chancellor.
DeQuincy Sutton, Meridian, for appellant.
I. Section 1714, Mississippi Code of 1942, is a statutory privilege whose use is one not to be enjoined.
II. Perpetuation statutes in Mississippi.
A. The statute here is not restrictive and was designed purposely as it appears.
B. The change effected by adoption of the statute was that it dispensed with both the need and the practice for bills of discovery theretofore required where no suit was pending.
C. Prior Court order is not contemplated by the Mississippi statute.
D. The statute is clear, contains no ambiguity, and contemplates freedom from judicial interference in its proceedings.
III. Perpetuation statutes in other jurisdictions.
A. Statutes of other states on this subject are quite restrictive in their jurisdictional requirements.
B. Such other states uniformly require Court approval before perpetuation and, in most cases, decline thereafter to approve objections to admissibility of the testimony adduced.
C. Statutes of other states, in general, limit the perpetuation to matters designated by the statute.
D. Despite the apparent restrictive jurisdictional and procedural statutes of other states, their judiciary in all cases have imposed a relatively liberal use of the proceeding for the statutory purposes.
E. The judiciary of other states have declined to permit restraint on use of the perpetuation statutes.
IV. Judicial interpretation in Mississippi.
A. The Mississippi judiciary has forbidden by rule any interference with perpetuation practices.
B. There is no Mississippi precedent for judicial interference with taking of testimony by perpetuation, and the judicial view is that none is contemplated by the statute.
C. The Mississippi judicial rule is that any judicial supervision will be exercised only in subsequent judicial proceeding where the perpetuated testimony may be offered in evidence and, there, such supervision will concern admissibility and not the taking.
Collation of authorities: Peyton v. Vardaman, 103 Miss. 164, 60 So. 129; Lambert v. Texas Employers' Assn., 121 S.W.2d 406; Texas Rice Land Co. v. Langham, 193 S.W. 473; Brown v. Superior Court, 212 P.2d 878; Irving v. Superior Court, Etc., Eldorado,
249 P. 236; Jones v. Superior Court of City of S.F., 32 P.2d 1114; Kutner Goldstein Co. v. Superior Court of Fresno County, 298 P. 1001; Summers v. Darne, 72 Va. 791; Arizona v. California, 292 U.S. 341; Secs. 1650-1660, Code 1880; Sec. 1766, Code 1892; Secs. 1699, 1714-1724, Code 1942; Title 7, Sec. 491, Alabama Code of 1940; Secs. 28-334, 28-335, Arkansas Stats. Anno.; Sec. 2084; California Code of Civil Procedure (Deering); Chap. 91 Sec. 912, Florida Stats. Anno.; Title 38 Sec. 38-1401, Georgia Anno. Code; Perpetuation of Testimony, Kentucky R.S. 1953; Chap. 539 Sec. 12, Rhode Island General Laws; Chap. 6 Sec. 9854, Tennessee Civil Code (Williams); Title 55, Art. 3742 Evidence, Texas Civil Statutes (Vernon); Title 104 Paragraph 2, Utah Code of 1943 (as amended through 1953); Title 8 Sec. 8-317, Virginia Code; 16 Am. Jur., Depositions, Sec. 29; 26 C.J.S., Depositions, Sec. 34(c); Griffith's Miss. Chancery Practice (1950), Sec. 427; Pomeroy's Equity Jurisprudence (5th ed.), Sec. 212 p. 358; Sunderland's Judicial Administration (1935), p. 247 Note 1.
V. Injunctions generally. The injunction is so susceptible of abuse, and so repugnant to the common law, that it uniformly is required of a pleader for injunctive relief that he show a clear right and a clear and present threat to that right by unlawful or harmful invasion against his will.
VI. Injunctions in Mississippi legal proceedings.
A. The rule is that injunction will not lie to lay apprehension, more especially where the apprehension may be asserted as a defense in litigation or appeal.
B. The Mississippi judiciary has held firmly to the rule that the Courts will not take away that validly given by the law.
C. Injunction uniformly has been rejected where sought against proper proceedings.
VII. The injunction in this cause.
A. An injunction writ in excess of the decree therefor is void.
B. Equity not being pleaded or shown, the injunction may not issue.
C. Complainant not having denied the facts about which enjoined questions were to be asked, injunction may not issue for relief therefrom.
D. Temporary injunction may not issue on bill and answer.
VIII. Injunction bond.
A. The proceeding being one at law, Section 1336 of Code of 1942 governed.
B. It is not required that a proceeding be a judicial one in order to be a proceeding at law.
Collation of authorities: Brooks v. City of Jackson, 211 Miss. 246, 51 So.2d 274; Edgell v. Clark, 76 Miss. 66, 23 So. 353; Edward Hines Yellow Pine Tr. v. Knox, 144 Miss. 560, 108 So. 907; Erwin v. Miss. State Highway Comm., 213 Miss. 885, 58 So.2d 52; Griffith v. Vicksburg Water Works Co., 88 Miss. 371, 40 So. 1011; Hodges v. Trantham, 171 Miss. 374, 57 So. 715; Jackson County Historical Assn. v. Board of Suprs. Jackson County, 214 Miss. 156, 58 So.2d 379; Meek v. Humphreys County, 133 Miss. 386, 97 So. 674; Neville v. Adams County, 123 Miss. 413, 86 So. 261; Pass v. Dykes, 16 Miss. 92, 8 Sm. M. 92; Peyton v. Vardaman, supra; Planters Compress Assn. v. Hanes, 52 Miss. 469; Rea v. O'Bannon, 171 Miss. 824, 158 So. 916; Russell v. Town of Hickory, 116 Miss. 46, 76 So. 825; Scranton Lbr. Co. v. Knox, 143 Miss. 643, 109 So. 721; Sturges v. Jackson, 88 Miss. 508, 40 So. 547; Sunflower Compress Co. v. Staple Cotton Co-op Assn., 139 Miss. 200, 103 So. 802; Tone v. Superior Court, 224 P.2d 13; Jerome v. Ross (N.Y.), 7 Johnson's Reports, Chap. 315; Secs. 1335, 5279, Code 1942; 28 Am. Jur., Injunctions, Secs. 2, 24, 280; 43 C.J.S., Injunctions, Sec. 26; Griffith's Miss. Chancery Practice (1950), Secs. 438, 445-46.
IX. Damages and solicitor fees. The injunction having been issued wrongfully, damages and fees on motion for dissolution flow per se and by statute. Herron v. McLean (Miss.), 191 So. 59; Tillman v. Heard, 95 Miss. 238, 48 So. 963; Sec. 1336, Code 1942; 37 A.L.R. 2d 595.
X. Demurrer to cross-bill. Since the cross-bill was bottomed on the identical things about which the perpetuation proceedings were called on, and appellee admitted them by demurrer, they stated a cause of action to be investigated by the Court and the cross-bill was not demurrable. Board of Suprs. Adams County v. Giles, 219 Miss. 245, 68 So.2d 483; Coleman v. Lucas, 206 Miss. 274, 41 So.2d 54; Curphy Mundy v. Terrell, 89 Miss. 624, 42 So. 235; Griffith v. Gulf Refining Co., 215 Miss. 15, 60 So.2d 518; Pitts v. Baskin, 140 Miss. 443, 106 So. 10; Renaldo v. Lamas, 151 Miss. 207, 117 So. 528; Sparks v. Reddoch, 196 Miss. 609, 18 So.2d 450; Stigall v. Sharkey County, 197 Miss. 307, 20 So.2d 664; Thomas v. Mississippi Power Light Co., 170 Miss. 811, 152 So. 269; Triplett v. Bridgforth, 205 Miss. 328, 38 So.2d 756; Waldauer v. Parks, 141 Miss. 617, 106 So. 881; Sec. 1352, Code 1942.
M.V.B. Miller, Snow Covington, J.C. Floyd, Meridian, for appellee.
I. The attempted perpetuation proceedings were not in compliance with statute, and were invalid. Collieaud v. Superior Court, 292 P. 145; Daily v. Johnson, 48 Miss. 246; First National Bank v. Phillips, 71 Miss. 51, 15 So. 29; Fletcher v. Wilson, Sm. M. Ch. 376; Horn v. Guthrie (Miss.), 21 So.2d 813; Irving v. Superior Court, 249 P. 236; Long v. Griffith, 113 Miss. 659, 74 So. 613; National Surety Co. v. Rieves, 112 Miss. 747, 73 So. 732; Olsen v. District Court, 71 P.2d 529, 112 A.L.R. 438; Secs. 1699, 1702, 1714-1715, 1720, 1723, Code 1942; 16 Am. Jur. 702-03; 19 Am. Jur. 230-31; 26 C.J.S. pp. 811, 815, 819, 838; 27 C.J.S. 5; Griffith's Miss. Chancery Practice, Sec. 173.
II. The demurrer to the cross-bill was properly sustained. Ayers v. Carver, 15 L.Ed. 179; Bishop v. Miller, 48 Miss. 364; Buckingham v. Wesson, 54 Miss. 526; Burt v. Roberts, 212 Miss. 576, 55 So.2d 164; Carter v. Harvey (Miss.), 7 So. 286; City of Pascagoula v. Krebs, 151 Miss. 676, 691, 118 So. 286; District Grand Lodge v. Leonard, 92 Miss. 777, 46 So. 532; George v. Solomon, 71 Miss. 168, 14 So. 530; Gilmer v. Felhour, 45 Miss. 627; Griffith v. Vicksburg Water Works, 88 Miss. 371, 40 So. 1011; Pitts v. Carothers, 152 Miss. 694, 120 So. 830; Stansel v. Hahn, 96 Miss. 616, 50 So. 696; Vaughn v. Hudson, 59 Miss. 421; Secs. 1296, 1336-1337, 1673, 5279, Code 1942; 30 C.J.S. 796; Griffith's Miss. Chancery Practice, Secs. 377, 379, 434, 436, 449.
On June 11, 1954, the appellant filed a proceeding with the Chancery Clerk of Lauderdale County stating that he desired to perpetuate the testimony of certain witnesses therein named respecting the matter of a suit or suits contemplated against Merchants Farmers Bank and others for the total sum of $500,000, the subject of such suits to be brought being the disclosure to the Internal Revenue Service of data respecting the confidential and private banking transactions of M.H. Hall. Four witnesses were named whose testimony the appellant herein expected to take. The proceeding was filed under Section 1714, Code of 1942, which provides as follows:
"A person desiring to perpetuate the testimony of any witness or the remembrance of any fact as to a matter in which he is interested, in respect to which there is no suit pending, may file his written statement, verified by his oath or the oath of some one for him, in the office of the clerk of the chancery court of the county in which it would be lawful to institute a suit, at law or in chancery, touching the matter as to which such testimony is desired, which statement shall plainly set forth the subject-matter concerning which testimony is sought to be perpetuated, and the names and places of residence of the witnesses whose testimony is wanted, and the nature of the testimony of each witness, and the names and places of residence of all persons interested in the matter to which the testimony relates; or, if their names and residences be unknown, that shall be stated."
It will be noted that in a proceeding under this section it is necessary to file a written statement touching the matter as to which such testimony is desired and that the statement shall plainly set forth the subject-matter concerning which testimony is sought to be perpetuated, the names and places of residence of the witnesses, and the nature of the testimony of each witness, and the names and places of residence of all persons interested in the matter to which the testimony relates. There was an utter failure to comply with the provisions of this act. The application or petition did not state the matter as to which such testimony is desired; it did state the names of the witnesses whose testimony is wanted; it did not state the nature of the testimony of each witness; it did not state the names and places of residence of all persons interested in the matter to which the testimony relates; it did give the name of Merchants and Farmers Bank but indicated that there were others also interested without stating who they are.
A commission was issued to Judge Jesse H. Graham, not as judge of the circuit court but as a commissioner to take the depositions of the witnesses. Objection was made before the commissioner to the taking of any testimony under the proceeding but he held that he was not acting in a judicial capacity in the matter but only in an administrative capacity as a commissioner of the chancery court. Thereupon the Merchants and Farmers Bank filed a bill of complaint in the chancery court to enjoin the taking of any testimony under the proceedings. A temporary injunction was issued in accordance with the prayer of the bill. The appellant herein answered the bill and filed a cross bill and an amended cross bill, which will be referred to later. Upon the hearing in the chancery court, the chancellor made the injunction perpetual and sustained a demurrer to the amended cross bill, and from that decree this appeal is prosecuted.
(Hn 1) A careful study of the affidavit and application originally filed by the appellant convinces us that it does not comply with the aforesaid statute on the subject and that the injunction against the taking of the testimony for perpetuation purposes was properly granted. (Hn 2) In 26 C.J.S., Depositions, Section 5, p. 811, it is said: "Except where the right to perpetuate testimony is absolute, the preservation of evidence by depositions is not favored, and the application will not be allowed unless some proper ground for it exists at the time, and it appears that the testimony is material and will be competent evidence, and that the deposition is necessary because of the danger that the testimony may be lost by delay, or unless it is necessary to prevent a failure of justice. (Hn 3) The application must be made in good faith, and the granting of an order for the perpetuation of testimony is improper where it is sought solely to enable plaintiff to frame the complaint, or to perpetuate testimony as to trivial matters, where a person will be enabled thereby to shield himself from the consequences of his own wrongdoing, or where there is no reasonable ground to believe that the evidence desired cannot be obtained at the trial."
(Hn 4) Coming now to the second point, the original bill filed by the Bank raises the question of failure to comply with the statute. The cross bill and amended cross bill raised an entirely different matter and an entirely different subject and conclude with the prayer for an injunction against the Bank from interfering with, discussing or communicating any phase of Hall's affairs known to the Bank, and for an injunction to prevent the Bank from impeding Hall in his prospective suit for damages, and also asks for a $5,000 attorney's fee and for inspection and copy of certain minutes of the Board of Directors of the Bank and of the oaths taken by its officers and directors, and concludes with a prayer for the appointment of a receiver, outside of the present officers of the Bank, to take over and manage the affairs of the Bank. As we have pointed out the scope of the original bill filed by the Bank was merely to enjoin appellant from going ahead with the proceeding filed by him to perpetuate said testimony. The amended cross bill does not present any new matter pertaining to the defense of that issue but on the contrary brings into the litigation an entirely new subject which is in no way connected with that of the original bill and is not germane thereto. The alleged wrongful acts of the Bank's representatives are not related in any way to the question of whether the perpetuation proceeding is valid or invalid. (Hn 5) The subject-matter of a cross bill should pertain to matter appearing in the original bill. The cross bill is auxiliary to the original bill and is dependent thereon, and a possible future controversy should not be the subject of a cross bill. 19 Am. Jur., Equity, Section 327, pp. 231-232; 30 C.J.S., Equity, Section 384, pp. 796-797; Griffith's Miss. Chancery Practice, Sections 377-379.
From what we have said it follows that the decree of the lower court should be affirmed.
Affirmed.
Roberds, P.J., and Kyle, Holmes and Gillespie, JJ., concur.