Brothers v. Beck

• Decision Date: 17 January 1898
• Court: Mississippi Supreme Court
• Parties: OSCAR C. BROTHERS, JR., ET AL. v. JAMES J. BECK

22 So. 944

75 Miss. 482

OSCAR C. BROTHERS, JR., ET AL. v. JAMES J. BECK

Supreme Court of Mississippi

January 17, 1898

December 1897

FROM the circuit court of Sunflower county HON. F. A. MONTGOMERY Judge.

The chancery court case mentioned in the opinion was, as made by the original bill, a proceeding to redeem an undivided interest in the land from the tax sale, and for partition of the tract between original complainants and defendants. To the original bill, appellee, Beck, was a defendant, but having acquired the interest of the original complainants pending the suit, he, by an amended bill, became the sole complainant. The amended bill sought the cancellation of the tax sale, its validity being assailed on various grounds. Upon motion of the defendants thereto, plaintiffs' vendor being of them, all parts of the amended bill assailing the validity of the tax sale were stricken out, and thereafter a demurrer was sustained to the bill and what was left of the amendment, and the suit was dismissed. Other facts are stated in the opinion.

Affirmed.

W. R Trigg and J. T. Manion, for appellants.

The judgment of a court of concurrent jurisdiction directly upon the issue, is as a plea a bar, or as evidence conclusive, between the same parties, upon the same matter directly in question in another court. In Morris v. Webber, a well-known case, divorce was granted in the spiritual court because of permanent impotence, after which each spouse got married and each had children. Afterwards it became a question whether or not the children of the husband by the second marriage were legitimate, and the court held that, while the fact of their birth demonstrated that the cause of divorce was false in fact, yet sentence was conclusive.

In Maye v. Brown, also a well-known case, the right of a man to administer on the estate of a woman as his deceased wife, was contested on the ground that he had a former wife living; and his answer was, that he had, by a suit of jactitation of marriage in the consistory court, been declared free from all contract with the first woman; and the reply to this was that the jactitation sentence was obtained as the result of collusion. The prerogative court, in which the proceedings were pending, held that, as long as the sentence was allowed to stand in the consistory court, it was conclusive.

No error committed by a party, if the merits are decided, will relieve him from the force of a plea of res adjudicata, in case he sues again upon the same cause. Because he chose the wrong form of action or drew his bill unskillfully is no excuse for a new suit. Title settled in partition is conclusive in ejectment or in a suit in equity, Hancock v. Lopez, 63 Cal. 362; James v. Brown, 48 Iowa 568; Hicks v. Chapman, 67 Ill. 375.

In case the title to land is put in issue and decided in a suit to remove a cloud, the title will be res adjudicata. Chiles v. Champenois, 69 Miss. 603. If, after demurrer sustained, plaintiff declines to amend the bill and dismisses the suit, it is a trial on the merits, because, by confession, he cannot make out a case. In the case, the record of which was offered in evidence, the court refused to allow the complainant, the present appellee, to amend, and dismissed his bill--just as strong a case as the one cited, because the court determined that complainant was not entitled to any relief.

A judgment between the same parties on the same cause of action is conclusive between them. The exceptions to the rule are: [1]Where the action was not competent; [2] where the plaintiff has mistaken his character; [3] where the judgment was rendered for fault in a plea or in the declaration. The true question to be determined in such cases, is not whether the former suit was actually determined on the merits, but whether the merits were involved, and could have been determined in the suit. And the plaintiff who brings a second suit, must not leave it to nice investigation to determine whether the cause of action is the same or different, but he should show clearly that they are different, and it is a matter of no importance that the form of action in the first suit was different from the form of action in the last. Agnew v. McElroy, 10 Smed. & M., 552; Johnson v. White, 13 Smed. & M., 584.

P. C. Chapman, for appellee.

The chancery court did not render its decree upon the merits in the case, therefore the doctrine of res adjudicata does not apply. Agnew v. McElroy, 10 Smed. & M., 552; Johnson v. White, 13 Smed. & M., 584; Perry v. Lewis, 49 Miss. 443, Baird v. Bardwell, 60 Miss. 164; 21 Am. & Eng. Enc. L., 266.

The tax title offered by the plaintiff in the court below was void, for the reason that the assessment roll was not presented or approved by the board of supervisors, as required by the law. Code 1880, § 499, requires the roll to be presented to the clerk of the board of supervisors on or before the first Monday in July. Stovall v. Connor, 58 Miss. 138; Pearce v. Perkins, 70 Miss. 276; Carlisle v. Goode, 71 Miss. 453. The plaintiffs, however, claimed that the assessment roll was legalized by the act of 1884. This court has construed that act in the case of Osburn v. Hyde, 68 Miss. 45, in which the court say, "The true interpretation of that act is that its curative effect was made to depend on the receipt and approval of the roll by the board of supervisors of the county at its August term, 1884." The board of supervisors of Sunflower county did not, at its August, 1884, meeting, approve or take any action concerning the land assessment roll of 1883.

Baker & Moody, on same side.

There is nothing better settled than that for a judgment to be res adjudicata, it must have been rendered upon the merits of the cause, and not for defects in the pleading or mode of procedure. Perry v. Lewis, 49 Miss. 443; Johnson v. White, 13 Smed. & M., 584; 21 Am. & Eng. Enc. L 266. In Wells on Res Adjudicata and Stare Decisis [revised edition, 1879], sec. 449, we find the author makes use of this language: "Where a demurrer, presenting two grounds, is sustained, but the ground is not stated, the ground presumed will be that fatal to the action. But where the one is merely fatal to the action-as, for instance, by reason of misjoinder--and the other involves the merits, or the right of plaintiff to recover on his cause of action, then the presumption will be that the demurrer is sustained on the former ground, leaving the merits still open to a better declaration." Citing 15 Iowa 30. See, also, Greene v. Bank, 73 Miss. 543. This rule is just and sound, for, while it is true that a defendant should only be vexed with...