Maxims: Aiding the Vigilant

September 30, 2013 § Leave a comment

“Equity aids the vigilant and not those who slumber on their rights.”

Judge Griffith puts this about as well as it can be said (I’ve broken it down into separate paragraphs):

“Those diligent find equity always ready to extend just aid, but the slothful are not favored.

“There is no principle of equity sounder or more conservative of peace and of fair play than this, which requires a party who has a claim to prefer or a right to assert to do so with a conscientious promptness while the witnesses to the transaction are yet available and before the facts have faded from their memories.

“It is a fact of universal experience that men will generally use diligence to get what rightfully belongs to them, and will unreasonably delay only as to false or ineuqitable claims, — thus in the hope that fortuitous circumstances may improve their otherwise doubtful chances.   

“If therefore a party delay the bringing of a suit, or delay the taking of some particular step therein, to such an unreasonable time that to allow him so late to proceed would work an injustice and injury upon the opposite party, it will require a much stronger case to move the court to action than if the matter had been seasonably presented; and if on account of the delay a serious injustice would result to the opposite party the court may decline to proceed at all.

“The maxim does not apply however to those under disability such as infants, nor can it be invoked by one who has lulled his adversary into repose by deceit, false promises, concealment and the like.” Griffith, § 41, p. 43.

Equity, then, treats rights that are not asserted within a reasonable time as having been abandoned, or as surrendered to the other party. Magee v. Catching, 4 George 672, 1857 WL 2672, (Miss. Err. App. 1857). [Note: Magee  is still good law, despite its antiquity, and despite the fact that it involved a mortgage secured by slaves.]

Equity is all about fairness. Equity looks askance at a complaining party who delays taking action to gain an advantage because of the inherent unfairness of the situation.

This maxim is the basis for the doctrine of laches, which we will address tomorrow.

Dispatches from the Farthest Outposts of Civilization

September 27, 2013 § 3 Comments






Exploring the Second District Web Site

September 26, 2013 § 1 Comment

Chancellor David Clark’s Second Chancery Court District web site is a must-visit resource for practitioners who will find themselves before the court in Jasper, Newton and Scott Counties. You will find calendars, contact information, procedural guidelines, and other info that will ease your transition into that district.

Even if you’re not headed to court in East Mississippi, however, this site is a resource that you should not overlook. Some other info you’ll find there:

  • The What’s New tab highlights case developments and rules changes that any chancery lawyer will find helpful in any district. As with this site, you can read Judge Clark’s take on it and draw your own conclusions, but when you read his interpretation, you get a glimpse into the chancellor’s thought process on the subject.
  • There are some useful forms in several formats that can be completed online and printed out. There are estate information forms and worksheets that you should be using, whether or not they are required in your district. There is an 8.05 form, and a guardianship or conservatorship information sheet. There is even a case filing cover sheet. All can be filled in online and printed out, which is a huge bonus.
  • The Memos to Attorneys tab will take you to several memos that, on the surface, instruct attorneys on how to address matters such as removal of disability of minority, the proper designation of pleadings, and de-sensitizing financial information in court filings. I say “on the surface” because they might just prompt you to make some positive changes in the way you handle some of your business in other districts.

Judge Clark has put some work into this site, and you would do well to take advantage of it.

Reprise: The Proper Response to a Rule 41(d) Notice

September 25, 2013 § Leave a comment

Reprise replays posts from the past that you may find useful today.


September 8, 2010 § 6 Comments

Rule 41(d), MRCP, is the familiar rule by which the Chancery Clerk is authorized to send out a notice to all counsel and self-represented parties in cases ” … wherein there has been no action of record during the preceding twelve months …”  that the case will be dismissed for want of prosecution.  The rule requires the clerk to dismiss the action unless within thirty days of the notice, ” … action of record is taken or an application in writing is made to the court and good cause is shown why it should be continued as a pending case.” 

You have received such a notice, and, galvanized into action, you toss it on your paralegal’s desk and say, “Here, take care of this,” as you saunter out the door trying not to be late for your tee time.  The paralegal scours the files and finds that your usual response is to file something called “Notice to Keep Case on the Active Docket,” and she tosses a copy of it on the secretary’s desk and says, “Here, do me one of these,” and returns to her office to continue whittling away at a four-foot-tall mound of discovery.  In due course, the secretary produces said pleading, you sign it, the paralegal files it, and everything is fine.  Until the next week, when you find your case was dismissed despite your efforts.  What went wrong?

In the case of Illinois Central Railroad Co. v. Moore, 994 So.2d 723, 728 (Miss. 2008), the Mississippi Supreme Court held that a Circuit Judge should have dismissed the plaintiff’s suit after he had received Rule 41(d) notice, and his attorney filed nothing more than letters with the court requesting that it not be dismissed.  The court reasoned that Rule 41(d) requires that some procedural action that would have the effect of moving the case forward be filed, or that a proper motion under the rules be filed and noticed, the motion showing good cause why the action should not be dismiised and asking the court to rule affirmatively that it should not be dismissed. 

There was evidence of severe dilatoriness on the part of plaintiff’s counsel in the ICC case.  The appellate decision, however, did not turn on his want of action, but only found it to be an aggravating factor.  The court’s holding turned on counsel’s non-compliance with the rules, and the result was dismissal of the lawsuit.  Although dismissal under 41(d) is without prejudice, the dismissal in ICC was fatal due to the statute of limitations.

The Supreme Court decision noted that there has been a relaxed attitude about responses to 41(d) notices, but stated that it would not follow the same path.  ICC now stands for the proposition that if you skirt by the rule and succeed in having your action kept on the active docket, you will likely fail if the other side appeals.

If you want to keep an action from being dismissed under Rule 41(d), simply follow the rule and either:  (1) Take some action of record, such as serving discovery, or filing a legitimate motion to advance the case; or (2) File a motion with the court asking that it not be dismissed, stating good cause to support your position, and notice the motion for hearing before the thirty days expires.  Anything short of either action could result in a favorable ruling by a more relaxed trial judge, but will leave you vulnerable on appeal.

Caveat:  Remember that Uniform Chancery Court Rule 1.10 requires that discovery must be completed within 90 days of service of an answer, unless extended by the court.  It is unlikely that this judge would have allowed either party an extension that would cause a case to be pending as long as a year.  It would be difficult to convince a judge that propounding discovery after the discovery deadline has expired would be an action of record that would have the effect of moving the case forward.

Comment:  The consequences of Rule 41(d) to a cause of action are usually not as dire in Chancery Court as they are in Circuit.  Statutes of limitation are not as often a concern in Chancery.  For clients on an unequal financial footing, however, a 41(d) dismissal can cause expenses and fees to increase dramatically, and may spell the end of meritorious litigation.  It may also require you to represent a client through an appeal that you were not paid to handle, just to avoid some other action by your client.

Maxims: Follows the Law

September 24, 2013 § Leave a comment

“Equity follows the law” is one of the most misunderstood and misapplied maxims.

I have heard this maxim incorrectly invoked for the proposition that equity may not act unless there is a specific law, or that equity is inferior to the law.

I stated in a prior post on the maxims that, although equity will not suffer a wrong without a remedy, that concept is not unrestricted:

Over centuries the idea of “wrong” has been refined to include matters that are actionable, and to exclude those that the law deems not actionable. Judge Griffith explained it this way: ” … the maxim at this day is subordinate to positive institutions, and cannot be applied either to subvert established rules of law or to give a court of equity a jurisdiction beyond established principles.”

As I also said in that earlier post, “When the law bestows a right, it also extends a remedy that can be granted in equity. Conversely, a court of equity will not supply a cause of action where none exists in the law.” If a cause of action is recognized in either the common law or by statute, equity will give a remedy and forum to enforce it.

Here’s what Judge Griffith said on the subject:

“Whatever may have been the course of action in the formative period of the law, courts of equity no longer assume to annul or directly disregard the positive provisions of the established law: courts of equity are now as much bound by express rules of law concerning property and its interests as are courts of law, and particularly this is true of constitutional and valid statutory requirements and provisions. Wherever the rights or duties of the parties in a given state of facts are definitely defined and established by law, statutory or common, equity must enforce those rights and enforce those duties; and it is only when some countervailing, dominant, and equally well established equitable principle intervenes that a court of equity can assail or abrogate the legal right or duty. Therefore, in adjudicating questions of legal right, title or interest equity follows the legal rules, and even in adjudicating equitable titles, interests and estates, equity will follow the law where any clear analogy exists …” Griffith, § 40, p. 42.

In any case where the law does not preclude a remedy, equity will follow the law as far as the law goes, and if the law stops short in securing the rights of the parties. equity will continue the remedy until complete justice is done. Senter v. Propst, 190 Miss. 190, 207, 197 So. 100 (1940); Griffith, § 40, p. 42, fn 33a.

The maxim has even been interpreted so that a transaction that is invalid at law may be cognizable in equity. In Coffey v. Land, 176 Miss. 114, 120, 167 So. 49, 50 (1936), the Mississippi Supreme Court, with Justice Griffith himself writing, addressed the principle in a case involving mortgages on future crops, the statute providing for which had been repealed:

“Whenever it is declared under any long line of judicial precedents that a transaction is invalid at common law and yet is valid and enforcible in equity, it will be found that the distinction is preserved out of consideration of the fact that if such a transaction were bound up in the inflexible rules of the common law, injustice and hardship and general insecurity might result, whereas, if left to equity with its broader and more flexible powers and processes, a more perfect justice may be attained and the general security better served. We shall later herein seek by illustration to show that this is precisely the case as to annual crops to be produced in subsequent years. And as to any advancements made under our decisions, on the precise subject now under discussion beyond the strict bounds of the ancient common law, we would call attention to the fact that the common law is not an institution of exact and unchangeable rules, but is a system which progresses so as to accord with the general customs, usages, habits, and necessities of the people of the state, so far as agreeable to justice and reason; and this is at the same time to say that no court may, under the notion of making progress under the common law, pronounce any rule as being an allowable advancement upon the ancient common law rule, when the effect of it would be mischievous in its operation, contrary to the substantial interests of our people, and which in its tendencies would be subversive of their freedom.”

I am willing to concede that a decision like Coffey is a rare result, but it demonstrates the scope and power of equity vis a vis the law. It presented one of those infrequent occasions where ” … some countervailing, dominant, and equally well established equitable principle …” intervened and trumped the common law.

The spirit of equity is to ensure that justice is done.

Maxims: Substance over Form

September 23, 2013 § 7 Comments

“Equity looks to the intent, and will regard substance rather than form.”

I’ll let Judge Griffith do the talking here:

“Under this maxim, throughout the whole of the substantive law, equity deals with a matter according to its actual substance, and regards mere form as a secondary consideration. It pierces through the shell of a thing to what is within: it does not suffer itself to be circumvented by formal devices. And so, in procedure, it will not permit a mere technicality to conceal the real position of the parties, nor any mere form to divert the action of the court away from the actual merits of the cause. Mere appearances and external form will be put aside and the real relations of the parties will be ascertained and examined: no form will avail if the substance is wanting, and the form will be disregarded if the substance exists. This is not to be taken, however, as any declaration that essential rules of procedure may be disregarded. It means only that rules, when they do not go to the substantial rights of one of the parties, in a given situation, are not to be allowed to subvert, to mere technical form, the actual right of another.” Griffith, § 39, p. 42.

This approach is antithetical to what I call “Gotcha!” law in which the lawyers play procedural games in an attempt to catch the other in some overlooked dotting of i’s or crossing of t’s to justify sanctions or dismissal of pleadings or worse.  

It’s also directly opposed to discovery gamesmanship in which the parties try to hide assets, or create sham entities or transactions, or try to sidestep direct inquiries with misleading answers and a fog of insubstantial objections.

Proceedings in chancery should be more akin to a search for the truth rather than pharisaical quibbling over jots and tittles. “There is this general principle: A court of equity in the exercise of a broad discretion should see to it that wrong and oppression are not inflicted under the guise of legal procedure, but that justice be done as the very right of each case may demand.” Herring v. Sutton, 86 Miss. 285, 38 So. 235 (1905); Griffith, § 39, p. 42, fn. 32.

As caught up as we get in the procedural aspect of our procedural rules, we must never lose sight of the fact that they exist primarily to safeguard and protect substantive rights. Procedures are never an end in themselves. The rules point that out: “All pleadings shall be so construed as to do substantial justice,” (MRCP 8(f)); and “These rules shall be construed to secure the just, speedy, and inexpensive determination of every action,” (MRCP 1); and “These rules shall be construed to secure fairness in administration … to the end that truth may be ascertained and proceedings justly determined” (MRE 102).



Scene in Mississippi

September 20, 2013 § 8 Comments



What You Pay For

September 19, 2013 § 3 Comments

Many pro se parties in chancery rely on internet services to provide them with forms and “legal advice” with which they are to prosecute their claims. Most do it in the belief that these services will save them money.

As with attorneys, the quality can vary dramatically from service to service, and, as with all things in life, you get what you pay for.

A few days ago, as I signed R41(d) orders, I ran across a set of instructions that a pro se party had filed along with pleadings in an irreconcilable differences case. It purports to be a 5-paragraph summary of how to obtain a “No-Fault Divorce” in Mississippi. The two paragraphs on procedure were so, well, quaint, that I thought you might find them entertaining:

“In order to begin the divorce procedures in Mississippi one spouse must file a “Bill of Complaint for Divorce” with either their county, or their spouse’s county office of the Clerk of the County Chancery Court. This document explains who the couple is, what assets they have, what the filing spouse wants to receive from the divorce and any other general facts about the marriage. Once the complaint is filed it is the job of the filing spouse, now called the Complainant, to serve his or her spouse (now called the defendant) the complaint and other necessary forms.

“The defendant upon receiving the beginning divorce forms must then file the necessary forms to state that he/she did receive service and he/she does or does not contest. If the defendant does not contest then the judgment will be smooth and the divorce granted quickly. However, if the couple contests, then 60 days must pass before their case can be heard. Once in court, the judge decides the most equitable (fair, not equal) way to divide the property, debts, child custody and any other contested terms in thee divorce.”

This little haystack of legal advice has any number of prickly incomplete, misleading, and inaccurate-advice needles. I am sure any of you will ferret them out easily.

No wonder so many pro se parties find themselves absolutely lost in chancery court. They would almost be better off relying on their own ignorance.

The thing is, not all of these internet providers are so shoddy as the example above. Many sail right through court with all the i’s properly dotted and the t’s accurately crossed. They present real competition for Mississippi lawyers, who must pay office rent, staff salaries, utilities, bar dues, malpractice insurance, and on and on.

There is a tool that would help level the playing field. It’s the limited-scope representation agreement, which is now permissible under our ethical rules. The problem is that most attorneys with whom I discuss the subject are wary of it because they have not been able to come up with an agreement that they feel would adequately shield them from liability.

I wish the bar would get busy and furnish Mississippi lawyers with prototype limited-scope representation agreements. Mississippi has been late to the party on this issue, so, surely, there are proven instruments available from other jurisdictions. Unless and until Mississippi lawyers have the tools to compete with these internet services, the public will suffer from the poor ones, and lawyers will continue to lose business to the more adequate ones.

The real losers in this situation are the lower-middle-income and poor. They rightly feel that most attorneys are beyond their financial capability, so they turn to these internet law-robots. They suffer from poor advice, and lawyers lose some potentially paying business. We need to turn that around, because it is true that … you get what you pay for.

Who was Judge Griffith?

September 18, 2013 § 8 Comments

We have been examining the Maxims of Equity in several posts, and will continue over the next few weeks. The source of much of the material has been Judge V. A. Griffith’s Mississippi Chancery Practice, first published in 1925, with a second edition in 1950.

Judge Griffith had an impact on the law, the legal profession, and the judiciary of Mississippi, and his story is worth knowing.

In his role as Mississippi Supreme Court Justice, he penned a blistering dissent in the torture-induced-confession case of Brown v. State, 173 Miss. 542, 161 So. 465 (1935), a miscarriage of justice by the court’s majority that was later reversed by the US Supreme Court. Here is his dissent, at length, but worth the read:

GRIFFITH, Justice (dissenting).

The crime with which these defendants, all ignorant negroes, are charged, was discovered about 1 o’clock p. m. on Friday, March 30, 1934. On that night one Dial, a deputy sheriff, accompanied by others, came to the home of Ellington, one of the defendants, and requested him to accompany them to the house of the deceased, and there a number of white men were gathered, who began to accuse the defendant of the crime. Upon his denial they seized him, and with the participation of the deputy they hanged him by a rope to the limb of a tree, and, having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and, still declining to accede to the demands that he confess, he was finally released, and he returned with some difficulty to his home, suffering intense pain and agony. The record of the testimony shows that the signs of the rope on his neck were plainly visible during the socalled trial. A day or two thereafter the said deputy, accompanied by another, returned to the home of the said defendant and arrested him, and departed with the prisoner towards the jail in an adjoining county, but went by a route which led into the state of Alabama; and while on the way, in that state, the deputy stopped and again severely whipped the defendant, declaring that he would continue the whipping until he confessed, and the defendant then agreed to confess to such a statement as the deputy would dictate, and he did so, after which he was delivered to jail.

The other two defendants, Ed Brown and Henry Shields, were also arrested and taken to the same jail. On Sunday night, April 1, 1934, the same deputy, accompanied by a number of white men, one of whom was also an officer, and by the jailer, came to the jail, and the two last named defendants were made to strip and they were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it, and they were likewise made by the said deputy definitely to understand that the whipping would be continued unless and until they confessed, and not only confessed, but confessed, in every matter of detail as demanded by those present; and in this manner the defendants confessed the crime, and, as the whippings progressed and were repeated, they changed or adjusted their confession in all particulars of detail so as to conform to the demands of their torturers. When the confessions had been obtained in the exact form and contents as desired by the mob, they left with the parting admonition and warning that, if the defendants changed their story at any time in any respect from that last stated, the perpetrators of the outrage would administer the same or equally effective treatment.

Further details of the brutal treatment to which these helpless prisoners were subjected need not be pursued. It is sufficient to say that in pertinent respects the transcript reads more like pages torn from some mediaeval account than a record made within the confines of a modern civilization which aspires to an enlightened constitutional government.

All this having been accomplished, on the next day, that is, on Monday, April 2, when the defendants had been given time to recuperate somewhat from the tortures to which they had been subjected, the two sheriffs, one of the county where the crime was committed, and the other of the county of the jail in which the prisoners were confined, came to the jail, accompanied by eight other persons, some of them deputies, there to hear the free and voluntary confession of these miserable and abject defendants. The sheriff of the county of the crime admitted that he had heard of the whipping, but averred that he had no personal knowledge of it. He admitted that one of the defendants, when brought before him to confess, was limping and did not sit down, and that this particular defendant then and there stated that he had been strapped so severely that he could not sit down, and, as already stated, the signs of the rope on the neck of another of the defendants was plainly visible to all. Nevertheless the solemn farce of hearing the free and voluntary confessions was gone through with, and these two sheriffs and one other person then present were the three witnesses used in court to establish the so–called confessions, which were received by the court and admitted in evidence over the objections of the defendants duly entered of record as each of the said three witnesses delivered their alleged testimony. There was thus enough before the court when these confessions were first offered to make known to the court that they were not, beyond all reasonable doubt, free and voluntary; and the failure of the court then to exclude the confessions is sufficient to reverse the judgment, under every rule of procedure that has heretofore been prescribed, and hence it was not necessary subsequently to renew the objections by motion or otherwise.

The spurious confessions having been obtained—and the farce last mentioned having been gone through with on Monday, April 2d—the court, then in session, on the following day, Tuesday, April 3, 1934, ordered the grand jury to reassemble on the succeeding day, April 4, 1934, at 9 o’clock, and on the morning of the day last mentioned the grand jury returned an indictment against the defendants for murder. Late that afternoon the defendants were brought from the jail in the adjoining county and arraigned, when one or more of them offered to plead guilty, which the court declined to accept, and, upon inquiry whether they had or desired counsel, they stated that they had none, and did not suppose that counsel could be of any assistance to them. The court thereupon appointed counsel, and set the case for trial for the following morning at 9 o’clock, and the defendants were returned to the jail in the adjoining county about thirty miles away.

The defendants were brought to the courthouse of the county on the following morning, April 5th, and the so–called trial was opened, and was concluded on the next day, April 6, 1934, and resulted in a pretended conviction with death sentences. The evidence upon which the conviction was obtained was the so–called confessions. Without this evidence, a peremptory instruction to find for the defendants would have been inescapable. The defendants were put on the stand, and by their testimony the facts and the details thereof as to the manner by which the confessions were extorted from them was fully developed, and it is further disclosed by the record that the same deputy, Dial, under whose guiding hand and active participation the tortures to coerce the confessions were administered, was actively in the performance of the supposed duties of a court deputy in the courthouse and in the presence of the prisoners during what is denominated, in complimentary terms, the trial of these defendants. This deputy was put on the stand by the state in rebuttal, and admitted the whippings. It is interesting to note that in his testimony with reference to the whipping of the defendant Ellington, and in response to the inquiry as to how severely he was whipped, the deputy stated, “Not too much for a negro; not as much as I would have done if it were left to me.” Two others who had participated in these whippings were introduced and admitted it—not a single witness was introduced who denied it. The facts are not only undisputed, they are admitted, and admitted to have been done by officers of the state, in conjunction with other participants, and all this was definitely well known to everybody connected with the trial, and during the trial, including the state’s prosecuting attorney and the trial judge presiding.

We have already mentioned that counsel were appointed on the afternoon before the trial opened on the following morning, and that in the meantime the prisoners had been taken away to an adjoining county. Counsel were thus precipitated into the case and into the trial without opportunity of preparation either as to the facts or the law. Powell v. Alabama, 287 U. S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 165, 84 A. L. R. 527. Without having had opportunity to prepare, they assumed—erroneously as the majority now say—that the objections interposed when the so–called confessions were being introduced in chief were technically sufficient, and did not later move to exclude them when, under the undisputed testimony and the admissions of the state itself, it was fully developed that the confessions had been coerced, and that they were not receivable as evidence; and now the case of Loftin v. State, 150 Miss. 228, 116 So. 435, is seized upon as a means of sanctioning the appalling violation of fundamental constitutional rights openly disclosed by this record, undisputed and admitted.

The case of Loftin v. State, when carefully examined, is not the case now before us, and ought not to be forced into service under the facts now being considered. No officer of the state had any part in the confessions in that case, the prosecuting officer of the state did not use the confession, knowing it was coerced, the weight of the testimony was that the confession was actually and in fact voluntary. The case now before us is thus separated from the Loftin Case, in vital principle, as far as the east from the west. The case which is applicable and ought to be controlling here is Fisher v. State, 145 Miss. 116, 110 So. 361, 365. There the alleged confession was obtained in the jail by torture in the presence of the sheriff. Defendant’s counsel did not object as he should have done under the rules of procedure when the confession was offered and admitted, but later and out of time moved to exclude. The conviction was sought to be maintained, as in the case now before us, on the ground that the defendant had not raised or interposed his objection to the alleged confession in the manner required by the procedural law. In reversing the sentence this court in banc said: “Coercing the supposed state’s criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries. It was the chief iniquity, the crowning infamy of the Star Chamber, and the Inquisition, and other similar institutions. The Constitution recognized the evils that lay behind these practices and prohibited them in this country. *** The duty of maintaining constitutional rights of a person on trial for his life rises above mere rules of procedure, and wherever the court is clearly satisfied that such violations exist, it will refuse to sanction such violations and will apply the corrective.” See, also, People v. Winchester, 352 Ill. 237, 245, 185 N. E. 580; State v. Griffin, 129 S. C. 200, 124 S. E. 81, 35 A. L. R. 1227; Williams v. U. S. (C. C. A.) 66 F.(2d) 868; Booth v. U. S. (C. C. A.) 57 F.(2d) 192, 197; Addis v. U. S. (C. C. A.) 62 F.(2d) 329; Commonwealth v. Belenski, 276 Mass. 35, 176 N. E. 501; Mack v. State, 203 Ind. 355, 180 N. E. 279, 83 A. L. R. 1349; Hagood v. Commonwealth, 157 Va. 918, 162 S. E. 10, 601; State v. Hester, 137 S. C. 145, 162, 134 S. E. 885; O’Steen v. State, 92 Fla. 1062, 1075, 111 So. 725; People v. Brott, 163 Mich. 150, 128 N. W. 236; People v. Bartley, 12 Cal. App. 773, 108 P. 868, 870; State v. Frost, 134 Wash. 48, 50, 234 P. 1021.

To my mind it would be as becoming a court to say that a lynching party has become legitimate and legal because the victim, while being hung by the mob, did not object in the proper form of words at precisely the proper stage of the proceedings. In my judgment there is no proper form of words, nor any proper stage of the proceedings in any such case as the record of the so–called trial now before us discloses; it was never a legitimate proceeding from beginning to end; it was never anything but a fictitious continuation of the mob which originally instituted and engaged in the admitted tortures. If this judgment be affirmed by the federal Supreme Court, it will be the first in the history of that court wherein there was allowed to stand a conviction based solely upon testimony coerced by the barbarities of executive officers of the state, known to the prosecuting officers of the state as having been so coerced, when the testimony was introduced, and fully shown in all its nakedness to the trial judge before he closed the case and submitted it to the jury, and when all this is not only undisputed, but is expressly and openly admitted. Cf. Mooney v. Holohan, 294 U. S. 103, 55 S. Ct. 340, 79 L. Ed. 791. The Scottsboro Cases [FN1] are models of correct constitutional procedure as compared with this now before the court. In fundamental respects, it is no better than the case reviewed in Moore v. Dempsey, 261 U. S. 86, 43 S. Ct. 265, 67 L. Ed. 543, wherein the formal court procedure was without defect, but the judgment was vitiated by the substance of what actually lay behind it.

FN1. See Patterson v. State, 224 Ala. 531, 141 So. 195; Powell v. State, 224 Ala. 540, 141 So. 201, Weems v. State, 224 Ala. 524, 141 So. 215, reversed Powell v. Alabama, 287 U. S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84 A. L. R. 527; Norris v. State (Ala. Sup.) 156 So. 556, reversed 55 S. Ct. 579, 79 L. Ed. 1074; Patterson v. State (Ala. Sup.) 156 So. 567, reversed 55 S. Ct. 575, 79 L. Ed. 1082.

It may be that in a rarely occasional case which arouses the flaming indignation of a whole community, as was the case here, we shall continue yet for a long time to have outbreaks of the mob or resorts to its methods. But, if mobs and mob methods must be, it would be better than their existence and their methods shall be kept wholly separate from the courts; that there shall be no blending of the devices of the mob and of the proceedings of the courts; that what the mob has so nearly completed let them finish; and that no court shall by adoption give legitimacy to any of the works of the mob, nor cover by the frills and furbelows of a pretended legal trial the body of that which in fact is the product of the mob, and then, by closing the eyes to actualities, complacently adjudicate that the law of the land has been observed and preserved.

[Note: the county where the crime was committed was Kemper; the adjoining county where the prisoners were jailed was Lauderdale]

Richard C. Cortner’s 2005 book, A “Scottsboro” Case in Mississippi: The Supreme Court and Brown v. Mississippi details the unfolding of the case from the arrests through two Mississippi appeals, and to the US Supreme Court.

Many credit Judge Griffith’s dissent — considered stunningly frank for 1930’s Mississippi — to have prompted the US Supreme Court to take the case and reverse it.

GriffithSo just who was this man?

Virgil Alexis Griffith was born August 10, 1874, in Silver Creek, Lawrence County, Mississippi, in modest circumstances.

He studied law at the University of Mississippi, and graduated in 1897. He first opened a law office in Biloxi, and then moved to Gulfport, where he became a member of the firm Bowers, Neville & Griffith.

On July 17, 1903, he married Florence Neville in Scooba, Kemper County. Florence Neville was the daughter of Judge James H. Neville. V.A. and Florence had three children: James Neville Griffith; Margaret Griffith; and Susan Hart Griffith.

In 1920, he was elected Judge of the Chancery Court of the 8th District, a position in which he served until 1928.

In 1924, Judge Griffith wrote a complete revision of the chancery court procedural laws of the state. The result, adopted by the legislature, was the Chancery Practice Act of 1924, which simplified chancery court procedures and made them more flexible. The changes, with few tweaks, remained the law of practice in the chancery courts until the MRCP took effect in 1982.

The first edition of his book, Mississippi Chancery Practice, was published in 1925 to elucidate the 1924 Chancery Practice Act for practitioners. The book was so influential and useful that it was regarded as the hornbook of Mississippi chancery practice for 57 years, until the MRCP went into effect.

In 1928, he was appointed to a commission with Charles Lee Crum and Morgan Stevens to compile and annotate a new code, to succeed Hemingway ‘s Annotated Mississippi Code. The new code was adopted by the legislature and published in 1930.

Also in 1928, Judge Griffith was elected an Associate Justice of the Supreme Court of Mississippi, in which post he served until 1948. Upon taking his position with the high court, he moved his family to Jackson, but retained his home in Gulfport, which he used as a retreat.

In 1948, he became Chief Justice. He retired January 1, 1949, and the second edition of his book was published on June 1, 1950. His wife, Florence, died in 1951. Judge Griffith died in 1953.

Judge Griffith’s son in law, Robert Gill Gillespie, was appointed justice of the Mississippi Supreme Court in 1954, and served as Chief Justice from 1971-1977. Justice Gillespie is noteworthy for having been one of the FBI agents earlier in his career who participated in the ambush and death of gangster John Dillinger in July, 1934.

Maxims: Specifically and not by way of Compensation

September 17, 2013 § Leave a comment

“Equity acts specifically, and not by way of compensation.”

Perhaps a more modern statement of this maxim would be, “Equity acts specifically, and is not limited to compensation.”

At common law, the courts were limited to awarding damages for actual injuries that had already occurred, or to order delivery of property to which the plaintiff could prove legal title. Equity, however, had the power to prevent future injuries and withholding of property, as well as to award compensation.

The function of equity is to right a wrong, to provide a remedy for it, and to preclude its recurrence.

In Judge Griffith’s words:

[Equity] adjudges, for instance, that a party who holds the legal title in trust shall perform the trust in the specific manner required by that trust; or it will cancel legal titles for fraud, mistake and the like, and freed therefrom will deliver the property to the rightful party, or it will reform a contract and enforce it as reformed to the end that the party shall have the specific thing to which he is entitled, — and in every situation it aims at a more complete and a more exact justice than that which is attainable at law, by rendering unto the party the specific thing in its specific original form, so far as possible, rather than the general relief solely of damages. Griffith, § 38, p. 40.

“A more complete and a more exact justice … ” the aim of every chancery court proceeding.

Above I stated that the maxim could be restated as “not limited to …” That’s because our courts have long held that if chancery court has subject matter jurisdiction it may exercise pendent jurisdiction over all legal (compensatory) claims associated with the equity claim. See, e.g., Hall v. Corbin, 478 So.2d 253, 255 (Miss. 1985). “If it appears from the face of a well-pleaded complaint that an independent basis for equity jurisdiction exists, then a chancery court may hear and adjudge legal claims. RE/Max Real Estate Partners, Inc. v. Lindsley, 840 So.2d 709, 711–12 (¶ 13) (Miss.2003). Conversely, ‘if the complaint seeks legal relief, even in combination with equitable relief, the circuit court can have proper subject matter jurisdiction and adjudge pendant equitable claims.’ RAS Family Partners [v. Onnam Biloxi, LLC], 968 So.2d [926,] 928 (¶ 11) [(Miss.2007)].”

The underlying philosophy of equity becomes more and more apparent with each succeeding maxim. Equity will fashion a remedy that meets and cures the situation and renders its recurrence less likely, not allowing title or possession to stand in its way. Equity is not limited to assessing damages. Equity may order that acts be done, may impose equitable trusts and other equitable remedies incidental to effective relief, may impose deadlines, and may punish noncompliance.

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