Brown v. Attala Drainage District No. 2

• Decision Date: 03 April 1939
• Docket Number: 33588
• Citation: 185 Miss. 386,187 So. 529
• Court: Mississippi Supreme Court
• Parties: BROWN v. ATTALA DRAINAGE DISTRICT NO. 2

187 So. 529

185 Miss. 386

BROWN v. ATTALA DRAINAGE DISTRICT NO. 2

No. 33588

Supreme Court of Mississippi, Division A

April 3, 1939

APPEAL from the chancery court of Attala county HON. T. P. GUYTON Chancellor.

Suit by J. E. Brown against the Attala Drainage District No. 2 to recover balance allegedly due on a contract. From a decree dismissing the bill, the complainant appeals. Reversed and remanded.

Reversed and remanded.

Thos L. Haman, of Houston, for appellant.

The doctrine of subrogation is one of equity applied for the purpose of preventing injustice and for the purpose of enforcing complete and essential justice between the parties. The statute regarding the right of assignee of chose in action to sue in his own name is not applicable to suits in equity to enforce right of subrogation.

Box v Early, 178 So. 793; Canton Exchange Bank v. Yazoo County, 144 Miss. 579, 109 So. 1.

The decree in the former suit is based solely and exclusively on the right of the surety to be subrogated to the rights of the district to the retainage under the contract, and the assignment clause of the exhibit was excluded from consideration as a ground of complaint. No judgment is conclusive of matter not required to support the judgment.

Thompson v. Hill, 119 So. 320, 152 Miss. 390.

Only essential terms of judgment should be treated as conclusively adjudicated.

American Cotton Oil Co. v. House, 118 So. 722, 153 Miss. 170.

Relief by enforcement of right to subrogation and relief in equity for enforcement of a partial assignment or assignment given as security may reach the same result but the right to the relief under the one proposition is established by proof inconsistent with the proof required to establish a right under the other. The issues arising under the one are different from those which could arise under the other.

The surety in the former suit based its claim on the estimates allowed by the district and the contracted retainage thereunder, which it alleged was sufficient to cover all amounts due it, therefore it could have no concern under the assignment with the matter involved in the present suit and such were not in the former suit involved even if its rights to a limited extent under the assignment were involved. The equitable owner of a chose in action should be made a party to a suit in equity thereon in order to conclusively bar him by the litigation.

Cottrell v. Smith, 146 Miss. 837, 112 So. 465; Kitchens v Harroll, 54 Miss. 474; Griffith's Chancery Practice, sec. 128, note 73; Rembert v. Key, 58 Miss. 536; Box v. Early, 178 So. 793.

Appellant is not bound as a privy by the decree in the former suit by the surety company, Cause No. 7252, against the district, whether that suit was based on the assignment or right to be subrogated to the right of the district. The former suit by the surety was based on the estimates allowed by the district.

The present suit by the principal is based on the earned estimates under the contract, being for the balance due for work done under the contract in excess of the estimates as allowed. The things sued for in the two suits are different. The term privity denotes mutual or successive relationship to the same rights of property.

McLaughlin v. Green, 48 Miss. 175.

There was or is no mutual relationship between surety and principal, or between them as assignor and assignee, to any interest in funds held by the district, or to any indebtedness due by the district to contractor, above the amount of whatever indebtedness he owed to the surety resulting from loss to it on account of having become his surety, for which alone it sued the district.

The present suit is based on the same contract as between the district and appellant out of which grew the contract between the surety and appellant with the district, but is for funds not allocated to or ear-marked with mutual interest or relationship. The interest affected by the present suit was not acquired through or from the surety company by appellant.

There is no identity in the things sued for, no identity in the cause of action, no identity of persons and parties to the action, or their privies, and, if the former suit was based on assignment, no identity in the quality of the person for whom the claim is made, since, if the former suit was on the assignment, the surety must have sued as trustee for any interest of appellant over the amount due the surety, which could have been litigated in the former suit had appellant have been a party thereto.

Creegan v. Hyman, 93 Miss. 493, 46 So. 954; Jones v. George, 126 Miss. 576, 89 So. 231.

W. J. Evans, of Calhoun City, for appellant.

As we understand the holding in the case of Jones v. George, 89 So. 231, there are four essential things to be shown in order to constitute a valid plea of res judicata, to-wit: 1. Identity in the things sued for. 2. Identity in the cause of action. 3. Identity of persons and parties to the action. 4. Identity of quality in the persons for or against whom the claim is made.

Creegan v. Hyman, 93 Miss. 493, 46 So. 954; Coleman v. Smith, 87 So. 7.

When the cause of action in two suits is different, only those things are concluded by the first judgment which were actually in issue in the suit in which they were rendered.

Hardy v. O'Pry, 59 So. 73.

If, after an assignment, there remains any interest, right, or liability, even a scintilla jurist, in the assignor which can be affected by the decree, then he is a proper, and in most instances a necessary party; and this is true both where the assignor retains an interest in the chose, and where there remains a liability on his part.

5 C. J. 1005, sec. 216.

Irrespective of statutory provisions affecting proceedings in equity, usually, where suit is brought in equity by an assignee, the assignor should be made a party where a complete determination of the controversy requires his presence, and where it is necessary in order to conclude him, or to protect his rights or those of defendant, and in such case, if he is omitted, the court will order that he be brought in, under the general rules of equity practice.

5 C. J. 1003, sec. 214; Selleck v. Macon Compress & Warehouse Co., 17 So. 603; Boswell v. Thigpen, 22 So. 823.

We respectfully submit that the judgment of the lower court sustaining the plea of res adjudicata and dismissing the bill of appellant should be reversed and the cause remanded to the lower court for trial on the merits of the case.

C. E. Morgan, of Kosciusko, for appellee.

A plea of res adjudicata is good where the four essential things are present to constitute it, namely: 1. Identity in the thing sued for; 2. Identity in the cause of action; 3. Identity of persons or parties to the action; 4. Identity of quality in the persons for or against whom the claim is made.

Jones v. George, 89 So. 231; Creegan v. Hyman, 43 So. 954; Sec. 505, Code of 1930; 15 R. C. L. 1027, sec. 502.

If the assignee had a right to sue the appellee in Cause No. 7252 in its own name, and to recover the balance due the contractor and brought such a suit, then the four essentials especially laid down by this court in cases Jones v. George and Creegan v. Hyman, supra, are fully met.

In Cause No. 7252 the Guaranty Company as assignee, exercising its rights to subrogation, brought suit to recover $ 8715.56 and in addition any and all other amounts that the surety might be called upon to pay as such and based its claim primarily on the theory that the retained percentage was an arbitrary amount that must be set aside for the exclusive use of the surety, and it is fair argument to say that it did so with knowledge of the approximate amount that was due the contractor at completion of the contract, which was an amount considerably less than that expended by the surety on the contract, with the remote hope of establishing as a fact that the estimates of Engineer Stewart were not correct.

The bill prayed for general relief and the question of the balance due the contractor was heard and considered, the case was finally determined and this court passed on it.

U. S. F. & G. Co. v. Attala County Dr. Dist., No. 2, 146 So. 460.

And if the court had a right to hear any part of the subject matter, it had a right to hear it all and it would have been the duty of the court, if it had been found that there was an amount due Brown over and above the amount due the surety, to have stopped the proceedings until Brown was brought in, so that the matter could be adjudicated fully should anything be due him, but no such amount was found to be due and he did not become a necessary party.

Griffith's Chancery Practice, sec. 110.

Assignee obtained no greater right in thing assigned than was possessed by assignor.

Canton v. Yazoo County, 109 So. 1; Box v. Early, 178 So. 793.

Brown and the surety were both interested in the balance due; the surety as assignee brought suit to recover same. The court found that the district owed...