Opinion
No. 38367.
May 26, 1952.
1. Finding of fact by chancellor on conflicting evidence.
When, as in this case, the Court could not say that on the conflicting evidence the decree of the chancellor was manifestly wrong, it will be affirmed.
Headnote as approved by Arrington, J.
APPEAL from the chancery court of Marshall County; HERBERT HOLMES, Chancellor.
B.N. Knox, Jr., and Hugh N. Clayton, for appellants.
Appellants suggest to the Court that the only rational inference to be drawn from the action of the appellees in collecting the debt in question, was that they intended to collect the same.
The chancellor found that the appellee Slayden acted without malice and without intent to injure anyone. This Court has held that a prosecution for the purpose of using the criminal process of law for the collection of a debt, supplies the necessary element of malice. O'Bryant v. Coleman, 169 Miss. 776, 152 So. 59, and cases cited therein. Thus, if the appellees Slayden and Greer did in fact use and abuse the process in question to collect the debt due to Greer, the malice is supplied.
From all the facts and circumstances surrounding the case at bar, as shown by the testimony and the exhibits thereto, it is evidence that the chancery court of Marshall County, Mississippi, was manifestly in error in dismissing appellants' original bills with prejudice and it is therefore submitted that this Court should find that the appellees Slayden and Greer abused, perverted and prostituted the process issued by Justice of the Peace Nelms by using the same after the issuance thereof to collect from appellants a debt due to the said Greer by one W.R. Jones; that the Court should find that the appellees thereby became liable to the appellants.
Smith Hurdle, for appellees.
The learned chancellor was correct in finding: "Well, the sheriff might not have had the right to take a piece of personal property as security for appearance in place of a bond, but this sheriff, without any malice, without any intent to injure anybody, and not even knowing the parties, but to accommodate them he stretched the law and took his chances and took the truck as security for their appearance and fixed the date of trial for July 9." No amount of rationalization can convert the inartificially drawn memoranda given at the time into instruments which hypothecated Kirk's truck as security for debt, to be sold in the event of his nonappearance, particularly in view of the conclusive testimony to the effect that this was not the case.
The chancellor found the facts to be as alleged by appellees, upon conflicting evidence, and under the rules of the Mississippi Supreme Court, that theory will be adopted upon this appeal. With all deference, it is submitted that the statement of facts contained in the brief for appellants is that of Kirk himself, which was rejected by the chancellor at the trial. Only one error is assigned by appellants on this appeal, namely, that the Court erred in dismissing the bills of complaint and rendering a decree for appellees. We submit that there was ample evidence to support the findings of the chancellor, and that such findings will not be disturbed by this Court. It was within the province of the chancellor to believe the evidence for appellees as he did.
As said in F.W. Woolworth Company, Inc. v. Volking, 135 Miss. 410, 100 So. 3: "The act of Mr. Anderson, as testified to by Miss Volking, in turning off the heat, opening the doors and turning on the fans on a freezing day was certainly remarkable for a sane man to do who was intrusted with the management of such an important business. However, the story of the plaintiff is not an impossible one, and the jury had the right to believe it, and their finding of fact is not to be disturbed by this Court where the evidence upon which the finding is based is competent and sufficient to support the findings."
In the case at bar, neither the incompetency of the evidence nor its insufficiency to support the findings of the chancellor is assigned as error.
Roy Kirk and Preston Lambert filed separate suits in the Chancery Court of Marshall County, Mississippi, by attachment against W.D. Greer, a resident citizen of Marshall County, L.P. Slayden, Sheriff of Marshall County, United States Fidelity and Guaranty Company, a non-resident corporation and surety on Slayton's bond, and E.W. Francisco, doing business as Edgar Francisco Insurance Service, as garnishee. These suits were for the recovery of damages for an alleged abuse of process. By agreement, the suits were consolidated and tried together. At the conclusion of the trial, the chancellor found adversely to the appellants, complainants below, and a decree was entered dismissing their suits with prejudice. From this decree, the appellants appeal.
The appellants' sole assignment of error is that the court erred in dismissing the original bills with prejudice. (Hn 1) The evidence in this case was conflicting and was for the determination of the chancellor and we are not warranted in disturbing his finding unless we can say that he was manifestly wrong. This we are unable to do. In the case of Wilkie v. West Construction Co. of Tennessee, 196 Miss. 233, 243, 16 So.2d 154, 156, 617, which was a suit for damages in the chancery court for the death of one Howard Wilkie, the Court said: "If this case had been tried in the Circuit Court, would the appellants have been entitled to a directed verdict on the issue of liability? Clearly not. If not, the decree of the chancellor must stand. This court cannot substitute its judgment for that of the chancellor on issues of fact."
There was ample evidence to support the finding of the chancellor. Griffith's Miss. Chancery Practice, Second Edition, Section 674. The decree of the court below is accordingly affirmed.
Affirmed.
McGehee, C.J., and Lee, Kyle and Ethridge. JJ., concur.