Campbell v. Campbell, 40541
| Citation | 231 Miss. 658,97 So.2d 527 |
| Decision Date | 21 October 1957 |
| Docket Number | No. 40541,40541 |
| Parties | Charlie CAMPBELL et al. v. Willie CAMPBELL et al. |
| Court | United States State Supreme Court of Mississippi |
Laurel G. Weir, Philadelphia, for appellants.
W. D. Moore, Philadelphia, for appellees.
This is an action of ejectment brought in the Circuit Court of Kemper County for recovery of the possession of 100 acres of land situated in said county. The plaintiffs are Charlie Campbell, Martha Ellen Campbell and Sam Campbell, and the defendants are Willie Campbell and Mamie Campbell. Process was issued and served returnable on the first Monday of November, 1956, which date was November 5.
On Tuesday, November 6, 1956, the plaintiffs filed a motion for a judgment by default against the defendants and on the same day the defendants filed a plea of res adjudicata and moved the court to dismiss the suit. No testimony was taken with reference to the plea of res adjudicata but there were attached to the plea two certified copies of decrees of the Chancery Court of Kemper County. The first was a decree dated April 9, 1955, in a suit brought by Lannie Campbell against Rosie Crews, alias Rosie Campbell, 'and all persons having or claiming any legal or equitable interest in the lands described in the bill of complaint'. The bill of complaint on which this decree was based does not appear in the record but according to the decree it was a suit to remove a cloud on the title of Lannie Campbell as well as to adjudge her to be the owner in fee simple of the land and confirming her title. The decree of April 9, 1955, erroneously described the land as being situated in Neshoba County, Mississippi.
The second decree exhibited with the plea is a vacation decree entered on August 4, 1956, to correct the error in the first decree so as to change the location of the land from Neshoba County to Kemper County. The record is silent as to which county the land was alleged to be located in by the bill of complaint. The second decree changing the location to Kemper County was evidently attempted to be made under Section 1670, Code of 1942. As stated, the second decree was on an ex parte petition. Said Section 1670 authorizes the amendment but only upon reasonable notice in writing to the opposite party of the application for the amendment. It is reasonably apparent from the face of the second decree that no notice whatsoever was given to the opposite party and that part of the statute which requires notice was not complied with and the second decree is consequently void.
On the face of the showing made by these two decrees which were attached to the plea of res adjudicata, the circuit court overruled the motion of the plaintiffs for a judgment by default and entered an order sustaining the plea of res adjudicata.
From what we have said it will be noted that there is a serious question as to whether or not there is an identity in the thing sued for because the ejectment suit clearly seeks possession of the land in Kemper County, while the original decree on which the appellees rely places the land in Neshoba County; furthermore it is perfectly clear that there is no identity whatsoever of the persons and parties to the ejectment suit and the persons and parties to the chancery suit.
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