Denkman Lumber Co. v. Henderson

• Citation: 14 So.2d 213,194 Miss. 846
• Decision Date: 07 June 1943
• Docket Number: 35393.
• Court: United States State Supreme Court of Mississippi
• Parties: DENKMAN LUMBER CO. v. HENDERSON et ux.

14 So.2d 213

194 Miss. 846

DENKMAN LUMBER CO. v. HENDERSON et ux.

No. 35393.

Supreme Court of Mississippi

June 7, 1943

Suggestion of Error Overruled July 3, 1943.

Hermon Dean, of Canton, for appellant.

Harold W. Davidson, of Carthage, O. B. Triplett, Jr., of Forest, and Barnett, Barnett, Jones & Stone, of Jackson, for appellees.

ANDERSON Presiding Justice.

Appellees E. R. Henderson and his wife Mrs. Pearl Henderson, brought this action in the Circuit Court of Leake County against appellant, Denkman Lumber Company, for the alleged wrongful damage done their land and recovered a judgment in the sum of $2,500, from which judgment this appeal is prosecuted.

The land involved consisted of 100 acres, 40 acres of which was owned by the husband and wife as tenants in common; 60 acres of it was owned by the wife alone. The two tracts were adjoining. The Lumber Company claimed the right to cut and remove certain merchantable timber from the land, which it did. The declaration charged that in doing so it wrongfully damaged fences on the land, crops growing thereon and the soil itself and in addition that it cut and removed timber which it had no right to. The evidence showed that the damage to the fences was mainly on the wife's 60 acres; that the damage to the land itself caused by the trucks cutting deep ruts was exclusively on her land; that the damage to the drain ditch caused by stoppage was on her land and also on the 40 acres owned by them jointly and that the trees alleged to have been unlawfully cut were located on both tracts. The evidence varied as to the amount of damage done each of the tracts. The husband had the management and control of the 100 acres for the benefit of both.

Among other pleas by appellant was one in abatement of the action on the ground there was a misjoinder of the parties plaintiff; that they had no right under the law to bring a joint action for the alleged damage to the land owned as stated. The court held the plea was without merit and thereupon the trial proceeded, resulting as stated above.

We have reached the conclusion that the plea in abatement ought to have been sustained. We pass on no other question because on another trial there is no certainty that the other alleged errors will occur again. "In the absence of express statutory provisions so requiring, a husband and wife who have separate causes of action for the same wrong separately affecting each of them can not maintain a joint action therefor." 39 Am.Jur., Parties, Section 32, page 898. "The reasons for not permitting a misjoinder of plaintiffs are to avoid the trial of more than one suit at a time; to promote certainty and clarity of issues; to prevent confusion in the evidence and certainty of judgment to be rendered; in different words, to provide for the efficient and effective administration of justice". Hodges v Town of Drew, 172 Miss. 668, 159 So. 298, 299. Suppose in...