Barber v. Loveland

Cook, J., delivered the opinion of the court. Under sections 173 to 178; inclusive, Code 1930, authorizing attachments in chancery, the appellees filed their bill of complaint in the county court of Lauderdale county against the appellant, Tom S. Barber, a nonresident of this state, alleged to be indebted to the appellees, and other resident defendants alleged to have in their hands effect of, and to be indebted to> said nonresident defendant. The nonresident defendant entered his ap *630 pearance and pleaded that the execution o'f the contract and notes sued on was procured by fraud on tbe part of appellees’ agent. From a personal decree against the principal defendant for tbe sum sued for, and against tbe garnishee defendants condemning tbe sums owing to him, tbe principal defendant only appealed to tbe circuit court, and from a decree of the circuit court affirming in all respects tbe decree of tbe county court tbis appeal was prosecuted. Tbe motion of appellees to dismiss tbis appeal because none of tbe garnishee defendants have been summoned to appear before tbis court and join in tbe appeal must be overruled. Section 22, Code 1930', providing for summons and severance when all tbe parties to a judgment or decree do not join in an appeal, has no application to appeals'from a county court to tbe circuit court. Furthermore, no objection was raised in the circuit court that all tbe parties to the decree bad not been summoned to join in tbe appeal, and such objection could not be raised here for tbe first time. Tbe only party appellant in the circuit court has appealed to tbis court. Tbe finding of tbe county court that tbe execution of tbe contract and the notes sued on was procured by fraud is fully sustained by tbe proof. We think, however, that it was erroneously held that the appellant was estopped to rely upon tbe defense of fraud for tbe reason that before tbe attempted cancellation of tbe said contract and notes be assigned, as reasons for such rescission, oral representations of tbe appellees’ agent rather than tbe fraud pleaded and proved. In Odeneal v. Henry, 70 Miss. 172, 12 So. 154, 155, and Nash Mississippi Valley Motor Co. v. Childress, 156 Miss. 157, 125 So. 708, it was held that if a party attempts to rescind bis contract on a ground not good' in law, but there exists at the time a ground that is good in law, be can later rely on tbe good ground and is not bound to stand on tbe false ground *631 first assigned, and we do not agree with the contention of counsel that these decisions based this holding on the fact that the party did not know of the ground on which rescission was based at the time he assigned other reasons therefor. In Odeneal v. Henry, supra, it was expressly held that it was of no importance whether the party had knowledge of the justifying reasons at the time other reasons were assigned, but that “the all-important question is, did good reason actually exist at the time of” the rescission? We think the decree of the county court was erroneous, and therefore the decree of the circuit court will be reversed, and the cause remanded to be proceeded with in accordance with the statute. Reversed and remanded.