Edward Hines Yellow Pine Trustees v. State ex rel. Moore

• Decision Date: 07 January 1924
• Docket Number: 23712
• Citation: 98 So. 445,134 Miss. 194
• Parties: EDWARD HINES YELLOW PINE TRUSTEES v. STATE EX REL. MOORE, LAND COM'R
• Court: Mississippi Supreme Court

98 So. 445

134 Miss. 194

EDWARD HINES YELLOW PINE TRUSTEES v. STATE EX REL. MOORE, LAND COM'R

No. 23712

Supreme Court of Mississippi

January 7, 1924

Division A

Suggestion of error overruled.

APPEAL from circuit court of Pearl River county, HON. J. Q LANGSTON, Judge.

Action by the state of Mississippi, on the relation of R. D. Moore Land Commissioner, against the Edward Hines Yellow Pine Trustees. From a judgment for plaintiff, defendant appeals. Reversed and dismissed.

See, also, 97 So. 552; 98 So. 158.

Reversed and dismissed.

Hathorn & Williams, and Parker & Shivers, for appellee on suggestion of error.

The state of Mississippi, as trustee for the inhabitants of the township, and these inhabitants as beneficiaries of the trust, are the sole parties in interest in the suit, and the land commissioner as nominal plaintiff, simply sues for them in his representative capacity. The state of Mississippi, as trustee, and the inhabitants of the township, as beneficiaries, who are the real parties in interest, are before the court and will receive the benefits or fruits of the judgment in the case.

A substantial cause of action is made by the declaration for the state, as trustee, to the use of the inhabitants of the township, to recover large statutory penalties as fixed by chapter 143 of the Mississippi Code of 1906 (chapter 67 of Hemingway's Code). The trial of the case resulted in the awarding of a judgment for a large sum of money in behalf of the real parties in interest upon this statutory cause of action.

The effect of reversing and dismissing the case is to shut off and forever conclude the real parties in interest from recovering on their statutory cause of action created by chapter 143 of the Mississippi Code of 1906 (chapter 67 of Hemingway's Code), because the Code chapter creating the right also creates the remedy, which must be availed of, even by the state, within twelve months after the time the trespass was committed, and that the right and the remedy will be lost to the state and the beneficiaries of the trust if the case is to stand reversed and dismissed.

The right of the land commissioner to maintain the suit for the state, is a question which should have been raised by proper pleading before the trial court, and not having been there raised and pressed it cannot be raised or taken advantage of on the appeal. 31 Cyc. (XIV E, 3) 737; Mobile Branch Bank v. Rhew, 37 Miss. 110; Hemphill v. Bank of Alabama, 6 S. and M. 44; Lanier v. Trigg, 6 S. and M. 641. See, also, Perkins v. Stimmel, 114 N.Y. 359, 11 A. S. R. 659; Myer v. Barth, 97 Wis. 352, 65 A. S. R. 124; 31 Cyc. 737.

The defect, if it be a defect, of want of capacity, representative or otherwise, to maintain a suit, is a defect which, when not raised or availed of in the trial court cannot be considered in the appellate court. 3 C. J. (par. 664, sub. 8) 761; L. & N. R. Co. v. Touart, 11 So. 756; Robinson v. German Ins. Co., 51 Ark. 441, 11 S.W. 686, 4. L. R. A. 251; Beason v. Coleman, 46 So. 49; Fly v. King, 71 Miss. 537; Nat'l Surety Co. v. Board of Supr's, 120 Miss. 728; Choctaw, O. & G. R. Company v. Jackson, 192 F. (C. C. A.) 792; Board of Highway Commissioners v. City of Bloomington, 253 Ill. 164, 97 N.E. 280, Ann. Cases, 1913-A, 471; Fortier v. N. O. Nat. Bank, 112 U.S. 439, 451, 18 L.Ed. 764; Cox v. Commissioners of Highways, 194 Ill. 355, 62 N.E. 791; Woods v. Dean, 165 Mass. 559, 43 N.E. 510; Compress Company v. Railroad Company, 70 So. 703.

The case at bar falls within the provisions of section 722 of the Mississippi Code of 1906 (section 505 of Hemingway's Code), and calls for the exercise by the defendant of a formal objection in the manner required by this statute in cases of nonjoinder or misjoinder of plaintiff. It is the policy of the law, expressly so made by statute, to allow amendments liberally so as to bring before the court the merits of the case, by making such amendments as to parties, or the form of the action, as will bring the merits of the controversy between the parties fairly to trial. See section 775, Mississippi Code of 1906. It is perfectly obvious, in view of these two statutes, that if the objection had been made in the court below the same could have been met by adding to the declaration or substituting therein the proper nominal plaintiff. In fact this is the proper practice. Jones v. Clemmer, 54 So. 5; McCue v. Massey, 43 So. 2; Kelly v. Casualty Co., 40 So. 1.

We respectfully submit, therefore, that even if this court could reverse the case upon this point, raised for the first time on appeal, it is improper to reverse and dismiss, but the court ought to reverse and remand with leave to amend by substituting for the land commissioner the proper party as nominal plaintiff.

T. J. Wills, Davis, Wallace & Yeager, and H. C. Holden, for appellants on suggestion of error.

The right, power, authority and capacity of the land commissioner to bring this suit was openly and pointedly questioned and objected to by demurrer in the trial court, and that court overruled the demurrer and held that the land commissioner did have authority and capacity to bring the suit. Not only was the authority of the land commissioner to bring the suit brought in question in the trial court, but the point was raised properly, namely, by demurrer. 31 Cyc. 293 to 297; 21 R. C. L. (Pleading) pars. 87, 526; Carmichael v. Trustees of School Lands, 3 H. (Miss.) 84.

The following Mississippi cases hold that non-joinder of necessary or proper parties may be raised by a demurrer. Rodd v. Dirbridge, 53 Miss. 694; Champlin v. McLeod, 53 Miss. 484; Stiles v. Inman, 55 Miss. 469; Harding v. Cobb, 47 Miss. 599; Cook v. Ligon, 54 Miss. 652; Hopson v. Harrell, 56 Miss. 202; Halsey v. Norton, 45 Miss. 703, 7 Am. Rep. 745.

The right of the revenue agent to sue may be tested by demurrer. The right of the land commissioner to sue may certainly be tested in the same manner. State Revenue Agent v. Hill, et al., 70 Miss. 106, 11 So. 789; McBride, et al. v. State Revenue Agent, et al., 70 Miss. 716, 12 So. 699; Adams, Revenue Agent, v. Fragiacomo, 70 Miss. 799, 14 So. 21; Adams v. Railroad, 78 Miss. 887, 30 So. 58; Adams v. Miller, 81 Miss. 613, 33 So. 489; Adams v. Williams, 97 Miss. 113, 52 So. 865; Dukate v. Adams, 101 Miss. 433, 58 So. 475; Pearman v. Robertson, 119 Miss. 384, 80 So. 876; Robertson v. Monroe County, 118 Miss. 520, 79 So. 184; Robertson v. Thomas, 118 Miss. 423, 79 So. 289; Jefferson Davis County v. Lumber Company, 94 Miss. 530, 49 So. 611.

It is true that in State v. Fitzgerald, 76 Miss. 502, 24 So. 872, this court indicated, through Justice WOODS, that a plea in abatement might properly raise the question of the authority of the land commissioner to sue in replevin for timber cut from sixteenth section land, but the opinion of the court was not on this point.

The right of the real parties, if such there be, is not affected by this court's action, and the suit may still be brought by those entitled to bring it.

Argued orally by T. J. Wills, for appellant, and F. C. Hathorn, for appellee.

OPINION

ANDERSON, J.

Appellee, the state of Mississippi, on relation of R. D. Moore, land commissioner, sued appellant, Edward Hines Yellow Pine Trustees, in the circuit court of Pearl River county for the statutory penalty and for actual damages alleged to have been suffered by appellee by reason of appellant having cut and removed or destroyed trees on a sixteenth section not covered by its deed to the timber thereon, and recovered a judgment for which appellant prosecuted this appeal.

Appellant assigns and argues several alleged errors in the judgment appealed from, one of which is that the land commissioner was without authority to bring this suit. This question lies at the threshold of the case, and, if decided against the right of the land commissioner to sue, it becomes unnecessary to pass upon any other question presented.

The authority of the land commissioner to bring this suit must be found in the statute. The trend of the mind of this court, as shown by Jefferson Davis County v. Lumber Co., 94 Miss. 530, 49 So. 611, and State v. Fitzgerald, 76 Miss. 502, 24 So. 872, has been against the right of the land commissioner to maintain this character of suit. The first case mentioned was a suit by the board of supervisors of Jefferson Davis county to recover damages for waste committed by the defendant in cutting timber on sixteenth section land. It was contended on behalf of defendant that the title to the sixteenth section lands was in the state, and the state alone had the right to sue for waste. The court held that the title was in the state, but, with reference to the authority of the board of supervisors to sue for waste thereon, said, among other things:

"Chapter 120 of the Code of 1906, and particularly section 4701 thereof, confers upon the several counties, through their respective boards of supervisors, under the general supervision of the land commissioner, jurisdiction and control of sixteenth section land, to be exercised, of course, within the terms of the original trust, and imposes upon them the duty of collecting all funds arising from such lands. This grant of jurisdiction and control, coupled with the duty to collect funds, necessarily carries with it all powers necessary to carry out the purpose of the grant, one of which necessarily is the power to institute suit for collection of such funds. To do this was clearly within the power of the state. This, in fact, was not a delegation of power within the rule of delegatus non potest delegare. A county is a political subdivision of the state, created for the purpose of acting for the state in local matters, whose powers are exercised by a...