Yazoo & M. V. R. v. Lawler

Ethridge, J., delivered the opinion of the court. IT. J. Lawler sued out an attachment in chancery against F. A. Fowler, a resident of Kansas City, Mo., doing business as the Gateway Hay Company, suing for the sum of nine hundred thirty-eight dollars and thirty-seven cents, and making the Yazoo & Mississippi Valley Eailroad Company a defendant, alleging that the said railroad company has two carloads of hay in its possession in the district and county, and praying for a judgment against Fowler, and that the effects in the hands of the railroad company be bound and subjected to the payment of complainant’s claim, and for general relief. No answer was filed by the railroad company, and no decree pro confesso taken against it, but an agreement was entered into between the complainant and the two defendants, signed by [426] the separate attorneys representing each party to the suit, which agreement is as follows: “It is agreed by and between the parties to the above cause that defendant, Yazoo & Mississippi Railroad Company, is authorized and empowered to sell the hay attached in said suit for its reasonable value and hold the proceeds of such sale subject to the order of this court, after deducting freight charges, demurrage charges, and any other proper railroad charges on said shipment.” The defendant, Fowler, filed an answer denying the debt sued on and a cross-bill claiming two thousand five hundred sixty-eight dollars and forty-two cents against the complainant. The agreement above set out was filed August 14, 1920. An agreement was entered between the complainant and the defendant, Fowler, that the cause be tided and determined in vacation. This agreement was not signed by the railroad company or its attorneys. On September 24, 1921, the chancellor rendered his decree, adjudging plaintiff entitled to recover of the defendant, Fowler, the sum of eight hundred sixteen dollars and thirty-seven cents, and recited in his decree: “The court further finds that said defendant, Yazoo & Mississippi Valley Railroad Company, is and at the time of the service of writ of garnishment herein was indebted to the defendant, T. A. Fowler, in the sum of three hundred and twenty-four dollars,” — and rendered judgment against the railroad company for that amount, and against Fowler for the amount above named. From this decree this appeal is prosecuted. There is nothing in the record to show that any answer was filed by the railroad company, or that any sale was made by it of the hay under agreement, nor what the amount was, and there is nothing to show that it was in court at the trial in vacation. The pertinent part of section 506, Code of 1906 (Hemingway’s Code, section 262), providing for the trial in vacation in the chancery court, provides as follows: [427] “And by consent of the parties or of their solicitors of record, he may try causes and deliver opinions and make and sign decrees therein in vacation.” The court had no power under this statute to try any issue in vacation affecting appellant without its consent, and there is nothing to show consent recited in the decree, and nothing in the record to show consent. It ivas error to render judgment against the Yazoo & Mississippi Yalley Railroad Company. The judgment, in so far as it affects said railroad company,- will be reversed, and the cause remanded to be proceeded with in accordance with law. Reversed and remanded.