Barataria Canning Co. v. Ott

• Decision Date: 02 July 1906
• Citation: 41 So. 378,88 Miss. 771
• Court: Mississippi Supreme Court
• Parties: BARATARIA CANNING COMPANY v. JOSEPH OTT ET AL

41 So. 378

88 Miss. 771

BARATARIA CANNING COMPANY v. JOSEPH OTT ET AL

Supreme Court of Mississippi

July 2, 1906

From the chancery court of Harrison county, HON. THADDEUS A. WOOD Chancellor.

The Barataria Canning Company, the appellant, was complainant in the court below; Ott and others, the appellees, were defendants there. From a decree overruling the complainant's demurrer to the amended cross-bill of defendants the complainant appealed to the supreme court. The case was once before in the supreme court and is reported Barataria Canning Company v. Ott, 84 Miss. 737 (s.c., 37 So. 121).

The facts of the case are fully stated in the opinion of the court.

Decree affirmed and cause remanded.

D. W Harper, and Harper, for appellant.

The pleading in the case at bar denominated an amended answer and cross-bill is such in name and form only; in substance it is an original bill making a direct attack on a decree of this court for alleged errors not apparent on its face.

It is a fundamental principle that any right, any question, or any fact put in issue and directly determined by any court having jurisdiction of the subject matter of the suit and of the person, as a ground of recovery or defense, cannot be disputed in a subsequent suit between the same parties or privies. This is true if the second suit is for a different cause of action. The right, question or fact once determined must as between the same parties and their privies be taken as conclusive and neither will be heard to speak again. Hopkins v. Lee, 19 U.S. 109; Thompson v Roberts, 65 U.S. 233; Johnson Company v Wharton, 152 U.S. 253; Cromwell v. Sac County, 94 U.S. 351.

In the original suit the defendants set up as a defense to the action brought against them that they were the owners of the oysters in question, and to establish this ownership, offered in evidence the deed of October 14, A. D. 1903, and, "in addition, appellees were permitted to introduce parol testimony, tending to prove that while they had no conversation or agreement with an officer of the appellant company, it was their understanding that the legal effect of said deed of October 14, 1903, was to vest in them the exclusive right to gather oysters northward and eastward of the line located by the deed, and that it was their intention in executing the deed, and the moving consideration therefor, that Barataria Canning Company was to surrender to them all its rights in the oysters planted and bedded in the oysters described and lying in front of their property." By whom was this oral testimony given? By Frederick McCaleb, one of the appellees; Joseph Ott, another one of the appellees; John Ott, still another one of the appellees. Thus the deed was put in evidence and a full opportunity was afforded the appellees to show by oral testimony any fraud, mistake or error. It was offered for adjudication, construction or modification, so as to make the deed prove, when reformed, that the title to the oysters taken was in them, and it was competent for the court to so have modified the instrument if the facts had justified.

It is clear that there was a right under and by virtue of the deed of October 14, 1903, put in issue and directly determined by a court of competent jurisdiction as a ground of defense; that the finding of this court cannot be disputed in the chancery court or in any other court in any subsequent suit between these appellees and this appellant, much less in the same controversy. By means of this so-called amended answer and cross-bill the learned counsel would have this court to reconsider its former adjudication of right between the same parties. This is never done by way of an amended answer and cross-bill, but the only way known to the writer by which this thing can be accomplished is by a suggestion of error by proper motion in the appellate court during the term.

Of course equity may reform a deed so as to make it express the true intention of the contracting parties, when the subject matter of such a proceeding is properly presented by original bill, or in a proper case by cross-bill. These appellees attempted to make a case that would entitle them to reformation of the deed of October 14, 1903, so as to transfer the title of the oysters growing or being on the said premises, by their original cross-bill, and it seems to be a proper case in which the question might be raised by cross-bill. The question whether these appellees were entitled to reformation was put to issue and they failed to make a case that would entitle them to this relief; because in this case there was no misrepresentation on either side. The parties dealt at arm's length and the deed was placed in escrow until the acceptance and delivery. It is no argument upon either side to say what the intention of the parties was. The deed must speak for itself. It follows, therefore, that appellant is vested with the sole and exclusive ownership of all oyster beds which it has planted. Of this ownership, appellees should be required to respect.

If anything was adjudicated by the decision of this court of June 6, 1904, it seems to us as between the appellees and the appellant, the title in and to the oysters growing on the close was forever settled in favor of appellant, and beyond all future litigation. If not, the words of this court are without meaning, "that appellant is vested with the sole and exclusive ownership of all oyster beds which it has planted, and that this ownership appellees should be required to respect." This court has upon full evidence fully adjudicated the deed of October 14, 1903, and as between the parties and their privies neither will there ever be heard again.

Ford & White, for appellees.

A decision of an appellate court becomes the law of the case only when the facts remain the same.

The appellant has seized with such avidity upon the expression used by this honorable court in ordering the reversal of the decree dissolving the injunction, that the injunction be reinstated and "made perpetual," insisting that this honorable court, in passing upon an appeal from a purely interlocutory order, and long in advance of any hearing upon the merits of the cause, had decided not only every question that was before it on that appeal, but has anticipated every possible defense of appellees to the original bill, and has relegated the whole controversy in every possible phase to the dead past, that we respond to that proposition first. We are told in this same case, which was remanded to the court for further proceedings, that all questions presented by this amended cross bill are res adjudicata. If the supreme court had the right to thus dispose of the whole case, and intended to dispose of it, we inquire: for what purpose was the cause remanded? Are decrees of chancery courts restraining the acts of parties to controversies, and enforcing the payment of costs, any more efficacious than decrees of the supreme court for the same purpose? If this honorable court intended the decree of reversal to have the broad and blighting effects which appellant contends for, we are at a loss to know for what purpose the case was sent back to the lower court at all.

We understand by the direction that the injunction be made perpetual, that the court meant simply to do what it and all other appellate courts have done under similar circumstances--that is, to perpetuate the injunction so long as the parties asserted the same rights upon the same state of facts presented on that appeal.

A reversal of a judgment places the parties in the same position they occupied before its rendition. Harris v. Newman, 5 How. (Miss.), 654.

Where an appellate court reverses decree and remands the cause to the lower court for further proceedings, that court can only carry into effect the mandate of the appellate court so far as its direction extends, but the lower court is free to make any order or direction in the further progress of the case as to any question not presented or settled by such decision. Cunningham v. Ashley, 16 Ark. 1817 (63 Am. Dec., 62).

A decision on appeal reversing an order granting a temporary injunction is conclusive only of the right of the parties upon the showing in support of the order. Andrews v. National Foundry and Pipe Works (C. C. A. opinion), 61 F. 782; Cyc., vol. 3, pp. 493 and 494; 3 Cent. Dig. Col., 2731.

The decision of a case by the supreme court does not, where the case is remanded, take away the power to allow proper amendments.

It is earnestly contended by appellants that the decision of this honorable court on the former appeal was such as to deprive the chancery court of the power to allow amendments; that the direction to perpetuate the writ of injunction was a mandatory order to the chancery court which it could, under no circumstances, disregard. We beg to take issue upon this proposition. As heretofore stated, so long as the case was before the chancery court on the same record, or state of pleadings, as when decided on appeal, the decision, whether right or wrong, is, of course, the law on the case. But we confidently assert that it was never the intention of this honorable court, in making the order that it did, to anticipate the action of appellees, and at once cut up by the roots every conceivable defense. Such has not been the course of courts of last resort in Mississippi, or elsewhere, so far as our investigation has extended.

In Wailes v. Cooper, 25 Miss. (3 Cush.), 421, it appears that on a prior appeal (see Wailes v. Cooper, 24 Miss. [2 Cush.], 208) that the court had decided the case adversely to one of the parties, and remanded the cause with direction to the lower court to proceed to foreclose the mortgage. It was contended on the second appeal that...