728 WASSON, BK. COMMR. V. DODGE, CHANCELLOR. [192
WASSON, BANK COMMISSIONER V. DODGE, CHANCELLOR. 4-4340
Opinion delivered May 11, 1936. 1. MORTGAGES—VENUE IN FORECLOSURE SUIT.—Sinee the lands described in the mortgage were partly situated in J. County, the chancery court of that county was the proper tribunal in which to institute the foreclosure suit. 2. COURTS—JURISDICTION.—Where the chancery court of J. County has rightfully acquired•jurisdiction over the necessary parties and the subject-matter in a foreclosure proceeding, no other court of equal dignity or one having concurrent jurisdiction has any right to interfere in the foreclosure suit pending in that county. 3. MORTGAGES—FORECLOSURE SUIT.—SinCe the action to foreclose the mortgage was properly instituted in the J. chancery court, that court has jurisdiction to try every question, both legal and equitable, that might arise in the case; so it had jurisdiction to construe a will executed in P. county, where it was ancillary to the equitable relief sought. • 4. COURTS.—Where suit was instituted in P. county to construe a will of one who had been a resident of that county, and there is at the time the suit is instituted, a suit pending in the chancery court of J. county to foreclose a mortgage on land situated in that county and owned by the testator, the chancery court of P. county is without jurisdiction to make an order the effect of which • is to prevent the chancery court of J. county from proceeding in an orderly way with the foreclosure suit pending in that court. 5. COURTS—PROHIBITION.—While it is technically true that a writ of prohibition cannot be invoked to correct an order already entered, yet where the order is entered without or in exeess of jurisdiction, the court will carve through the technicality and treat the application as one for certiorari and grant the writ quashing the order. Certiorari to Pulaski Chancery Court; Frank H. Dodge, Chancellor ; writ granted.
ARK.] '•WASSON, BK. COMMR. V. DODGE, CHANCELLOR, 729 J. H. Carmichael and Miles & Amsler, for petitioner. J. A.. Tellier, for respondent. HUMPHREYS, J. This is an application for a writ of. prohibition to prevent the chancellor of Pulaski county from restraining the petitioner from prosecuting_ a foreclosure suit on lands he filed in the chancery court of 'Jefferson county on February 28, 1933, against Wal-ter R. Richards and• Donald L. B. Richards and their respective wives, who executed a mortgage on certain lands in Jefferson and Lincoln counties to the Ameri-can Exchange Trust Company on the 15th day of No-vember, 1930, to- secure -an indebtedness of $19,588:28. - Subsequent to filing the foreclosure proceeding in Jefferson county, and while same was pending, a suit was filed in the chahcery court of Pulaski county, over which respondent presides, by E. A. Henry, trustee in succession of the estate of Annie Greigg Ranken, deceased, against the petitioner, Marion Wasson, Bank Commissioner in charge . of the American Exchange Trust Company, insolvent, et. al., to obtain a construction of the will of Annie . Greigg Ranken, in order that the trustee might properly administer same, which, among other things, it was alleged that under a proper interpretation of said will, the said beneficiaries thereih, Walter R. Richards and Donald L. B. Richards, .had no title or interest in and to the lands in Jefferson and Lincoln counties which they could mortgage to the American Exchange Trust Company, and that the mort - z 0 , -ae cr was void for that and other reasons. These are allegations that could have been interposed as defenses in the foreclosure suit brought by petitioher in the Jef-ferson Chancery 'Court, whiCh first acquired jurisdictioh .to foreclose the mortgage. There can be no question that the chancery court of ,Jefferson county was the proper tribunal in which to.' institnte the foreclosure suit. The lands described ih the mortgage were tiartly situated in that county. Section.1164, Crawford & Moses' Digest, reads, in part; as follows: "Actions for the following causes must be brought in the county- in which the subject of the action, Or .some part thereof,.is situated: •
730 WASSON, BK. COMMR. V. DODGE, CHANCELLOR. [192 For- the sale of real property under a mortgage, lien or other incumbrance, or charge."' Wright v. LeCroy, 184 Ark. 837, 44 S. W. (2d.) 355. :. 'The•Jefferson Chancery Court :having -rightfully . acquired junsdiction oVer the necessary parties and sub-ject-matter in the foreclosure proceeding, no:other court Of ,-equaf dignity or: One:having concurrent ,jurisdictien 'had :any Tight ' to interfere in the foreclosure snit pending in. the: Jefferson CountY 'Chancery Court. ••• This court Said in the early Case-of:,Estes; Adm., etc.'v Martin, 34 Ark. • 410, that: "It•is a universal rule, so far as.'we know,- in'the".:courts of th-e various . 'States and in the 'United 'States CourtS, that where a court once rightfully acquires jiirisdiction of:a, canse, it has a -right to retain and decide it:" •• • : This . general. rule .has been adhered to in all of onr cases: In the recent case :of Wright v. LeCroy, 184:.Ark. 837, .44 S. W.'.(2d) :355, this cOurt said: " Circuit 'courts 'and Chancery Courts ard . of equal dignity ;- and, in case§ where :there is concurrent jurisdictiOn, the court that first acquires jurisdietion-has the right and jurisdiction to. conduct the matter to. an end without 'interference by another court of. equal dignity." . • • : • Having 'decided the foreclosure snit -was properly institnted:in 'the :chancery: court of Jefferson county, that court 'acquired :jurisdiction . to7try every question; bOth 'legal . and-equitablec , 'that might ariSe in the caSe. 'This court said;:in • the case .of :Merehoits: (0 . Farmers Bodo.V. Harris;. 113 Ark: 100,167 , S. W. 706, that : The.. Chancery COurt.having:assumed . jurisdiction for : one purpoSe, will retain it for.'all and grant all of the relief, legal or equitable,.to: which the parties are entitled." It is suggested by respondent that the only court that can construe a will is a 'court within the .county of the : domicile of the testator, which, in the.instant case, Was in ,Pulaski county. - As a general rule, this is correct, but, not so, wheir the construction of a •will• is: incident: or ancillary to the equitable relief sought in.the •suit and which niay be •afforded by a final decree-in:the case... The: Tule. .applicable .is clearly and tersely.stated in 69 C. J., § 1976, p. 859, as follows: .“When a case is
ARK.] WASSON, BK. COMM . R. v. DODGE, CHANCELLOR. 731 properly brought in a . court of equity; under: soine .of •the known: and „accustomed heads .-of . jurisdietion; and ..the question of , the construction: of a will incidentally .arises, the court has . jnrisdiction to construe the will in order to afford the _relief to which the -parties-are:entitled . . This is on the theory that, where, a . court• of, equity has , obL tained jurisdiction for any purpose, it is empowered to determine all questions that may arise in the progress of the case and to do complete justice." . ; It- is also: suggested . )3y respondent that the restraint ing order was not issued against the chancery court or • the officers •thereof,. -but- only = -against one • of--the - defend-- ants in the case, pending in. the -chancery :court of Pu-laski .county. , The, restraining order entered „ by_the Pulaski Chancery . Court against. Marion Wason, )3.ank - Commissioner . in charge ..of . the • Anierican -E)whange Trust Company . forbids • him "from' appiying,.for the appointment of a reeeiver iii the forecloSure prOceeding noW pending in the JeffersOn Chancery'COUrt in the suit therein pending against Walter' R. Richards and others, tO take charge .of the lands :deseribed therein, or any part thereof, or otherwise interfering . with. plaintiMs -right to the: possession and control of said lands as\ trustee -in ;succession of the, estate as heretofore . ordered,br,this court pending further orders of this court," whichwin effeet, prevents , , the chancery . court, of jefferson..tounty from proceeding in , an orderly way . in , -the,: mortgage foreclosure suit pending .in -the . court; ;which , ,was,instituted . -in the Jefferson . Chancery , Court, ;before,.any, , suit was -Commenced in the i chancery court of Pulaski. county. 'The .chancery, court of Pulaski .eounty.was without ,jnris.- diction to enter the . order or executeit. • • ResPondent -also : suggests that a . .writ. of prohibition cannot be , invoked; to • correct an order already: entered even ;though entered without or exCess . Of jurisdiction Technically, perhaps; -this. is true, .but . by -treating .the application as one for certiorari.- to • Cancel •the,. Order made without or in excess of jurisdiction,: the-technical,- ity may be avoided •and confnsion -and -conflict of duris dictions preventect -We -therefore carVe. through the- teCh - nicality: and treat the application. as'one for la -Writ-of
732 [192 certiorari and grant the writ -quashing the Order. The effect of this iS to perMit E. A. Henry, trustee in succession of the . estate of Annie Greigg Ranken, deceased, to intervene in the foreclosure suit pending in the chancery couil of Jefferson county, and set up any defenses he may have to the foreclosure of the mortgage.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.